It is not entirely appropriate to speak of father’s rights, as if they were separate from the rights of the child. In the Constitution of the Republic of South Africa (Section 28) the following words appear:
“28(2) A child’s best interests are of paramount importance in every matter concerning the child.”
The abovementioned statement applies, even when we are seeking a definition of the legal position of the parents of the child. As a result, we turn next to the Children’s Act, Number 38 of 2005, which has been in effect since July, 2007. This Act applies in respect of all children, whether they were born before, or after the Children’s Act came into effect.
The Act defines a child as being a person under the age of eighteen years.
Where the law previously spoke of “parental authority”, it now speaks of parental responsibilities and rights. These are defined in Section 18 of the Act, which states broadly that the parental responsibilities and rights that a person may have in respect of a child, including the responsibility and the right –
- To care for the child;
- To maintain contact with the child;
- To act as guardian of the child; and
- To contribute to the maintenance of the child.
The provisions of Section 18 of the Act go on to describe the duties of a person who acts as guardian of a child, as including the following:
- To administer and safeguard the child’s property and property interests;
- To assist or represent the child in administrative, contractual and other legal matters; or
- To give or refuse any consent required by law in respect of the child, including –
- Consent to the child’s marriage;
- Consent to the child’s adoption;
- Consent to the child’s departure or removal from the Republic;
- Consent to the child’s application for a passport; and
- Consent to the alienation or encumbrance of any immovable property of the child.
Whenever more than one person has guardianship of a child, either one of them may, without reference to the other, exercise any right or responsibility arising from such guardianship. However, insofar as the rights concerned and marked by roman numerals above, any decision with regard to those matters, must be made by unanimous consent of the guardians.
Further Limitations on Rights of Parents:
The Act goes on to describe, in Section 31, how any major decisions involving a child, must be discussed with the child by the parent or parents, where the child is of sufficient age, maturity and stage of development to understand, and participate in such a discussion. The same Section (31) goes on to say that, neither parent may make any important decisions, without first taking into account the view of any other holder of full parental responsibilities and rights, with regard to that child. In other words, before any “important decisions” are made, a parent faced with such a decision, must take into account (but not necessarily be bound by) the feelings and opinions of the other parent.
The “important decisions” include the following:
- Any matter in connection with those listed above under roman numerals;
- Any matter effecting contact between the child and a co-holder of parental responsibilities and rights;
- Any matter regarding the assignment of guardianship or care in respect of the child to another person in terms of the Act; or
- Any matter which is likely to significantly change, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s wellbeing.
It is clear from the above, that the scope of the term, “important” is a very wide one indeed. The act clearly provides that, wherever matters of importance to a child are concerned, both parents should be involved.
Parental Responsibilities and Rights after Divorce:
Before the Act came into force in 2007, the general practice was, in divorce matters, to award “custody” to one, or the other, of the parents. Generally, this meant that the parent to whom custody was awarded, had responsibility to care for the child or children in all day-to-day matters, from the provision of clothing, meals, a place to live, general household rules and the like. The other parent retained the right to have access (now called “care”) to the child and had the obligation to contribute towards the maintenance of the child. Things have changed, but not by much. There is now more emphasis on the fact that, unless specifically changed, both parents continue to enjoy equal authority (parental responsibilities and rights) over the children, although one parent might be awarded, “care”. In any case, the restrictions imposed in respect of guardians, continue to apply.
Sole Custody and / or Guardianship:
If certain circumstances apply, the court can still award sole custody and / or sole guardianship, to one of the parents. This is a fairly drastic step, not often taken. In the event that a divorce order made prior to the coming into effect of the Children’s Act refers only to, “custody”, this is equal to the new term, “care”. It follows, that a person to whom custody was granted is now responsible for the various duties set out under the definition of “care”; these relate principally to the day-to-day life of the children, i.e. protecting them and providing them with the necessities of life. However, as soon as important decisions have to be made, such as the choice of a school, the selection of extramural activities and other things that will have an impact on the life of the child and his or her relationships with the other parent and other people, the other parent must also be brought into the discussion at the decision making process. In short, both parents continue to be important and to participate in the lives of their children.
When Father’s Rights are Denied:
When a father’s rights are denied in any way, he has numerous remedies in terms of the Children’s Act. In the first instance however, he is expected to discuss the matter with the other parent and, where discussion proves difficult, the parties are encouraged by various sections in the Act, to participate in mediation. Clearly, the intention is to seek peaceful methods of securing agreement or of resolving disputes before turning to the courts, as a last resort to intervene in a dispute between parents. Nevertheless, numerous disputes between parents end up before the Children’s Court or the High Court and, in the hands of the Office of the Family Advocate; this office is a department within the Department of Justice, mandated to investigate, and provide reports upon, any matters impacting on the best interests of children involved in any type of court case.
It is trite to observe that children who are raised by both their parents, even if the parents themselves are no longer together, are in a better and stronger position to enter the world, than those who have been abandoned by one or both of their parents. For this reason, the law has been designed in such a way that it encourages and promotes cooperation between parents and is quick to step in and provide assistance, and even punishment, where parents are not working together, successfully. As mentioned above however, court intervention is the last resort. Parents are encouraged, and required, to engage with one another, to discuss issues and to give their children their combined support, wherever possible.
For further information on specific issues and in respect of the remedies and processes available to father’s who might have been denied participation in the lives of their children, please do not hesitate to contact us.
24th January, 2017