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THE PARENTAL RESPONSIBILITIES AND RIGHTS OF THE BIOLOGICAL UNMARRIED PARENTS OF A MINOR CHILD

THE PARENTAL RESPONSIBILITIES AND RIGHTS OF THE BIOLOGICAL UNMARRIED PARENTS OF A MINOR CHILD

 

The position of a child born of unmarried parents has dramatically changed since the late eighties due to changing social patterns and values.  The proclamation of the Constitution of the Republic of South Africa[1] enshrined the rights of children[2] and the Children’s Act, Act 38 of 2005 (‘the Act’) was developed in the light of these constitutional rights.    

 

Most of the provisions of the Act came into operation during 2007; the remaining provisions came into full operation on 1 April 2010 and changed the law relating to children born of unmarried parents, especially with regard to the rights of the biological father. 

 

Previously the rights of unmarried fathers were regulated by the Natural Fathers of Children Born Out of Wedlock Act, Act 86 of 1997, but this act was repealed by the Children’s Act.

 

According to the Act a person may either have full or specific parental responsibilities and rights in respect of a child.  These include 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.[3]

 

1.           The responsibility and right to care for a child

 

Care’ has been defined in the Act to include-

(a)     within available means, providing the child with-

                                    (i)      a suitable place to live;

                                    (ii)     living conditions that are conducive to the child’s health, well-being and development; and

                                    (iii)     the necessary financial support;

(b)     safeguarding and promoting the well-being of the child;

(c)     protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;

(d)     respecting, protecting, promoting and securing the fulfillment of, and guarding against any infringement of the child’s rights set out in the Bill of Rights and the principles set out in the Act;

(e)     guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;

(f)      guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;

(g)     guiding the behaviour of the child in a humane manner;

              (h)     maintaining a sound relationship with the child;

              (i)       accommodating any special needs that the child may have; and

              (j)       generally, ensuring that the best interest of the child is the paramount concern in all matters affecting the child.[4]

 

The common law concept of “custody”, which related to the control and supervision of the daily life and person of the child, has been substituted by the Act’s new concept of ‘care’, as described above.  The general approach by the courts relating to custody was a reluctance to displace a custodian’s authority, except where a strong case had been made for intervention. 

 

Because the Act is still new it remains to be seen how the courts are going to deal with the new concept of ‘care’ and if it is going to be dealt with similarly as custody.  There are judgments that insinuate that the concept of ‘care’ created by the Act corresponds with the common law concept of ‘custody[5] and that the new concept was only developed to bring it in line with constitutional rights and values[6].  

 

Section 9 of the Act states ‘in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.

 

2.           The responsibility and right to maintain contact with a child

 

The Act defines ‘contact’ to mean-

 

(a)     maintaining a personal relationship with the child; and

 

(b)     if the child lives with someone else-

 

(i)         communication on a regular basis with the child in person, including-

                                   

(aa)      visiting the child; or

(bb)      being visited by the child; or

 

(ii)        communication on a regular basis with the child in any other manner, including-

 

(aa)      through the post; or

(bb)      by telephone or any other form of electronic communication.’[7]

 

Even though the Act describes parental responsibilities and rights to include ‘to maintain contact with the child[8], the child’s best interest is always the criterion to be used when establishing whether or not a person will acquire the right of contact.  The parent does not have an unassailable right to contact with the child; it is rather the child who has a right to contact, or to be spared contact[9].  The courts’ general approach is however that the child’s best interest is promoted through contact with a parent, especially if there is an established relationship between them and should a contact order be granted it becomes an enforceable right of contact.

 

3.           The responsibility and right to act as the child’s guardian

 

Guardianship refers to that portion of parental responsibilities and rights which relates to the administration and control of the child’s estate and the capacity to assist or represent him or her in legal proceedings or to perform juristic acts.

             

The functions of a child’s guardian are however defined in the Act as follows:

 

(a)     administer and safeguard the child’s property and property interests;

(b)    assist or represent the child in administrative, contractual and other legal matters; or

(c)    give or refuse any consent required by law in respect of the child, including-

(i)         consent to the child’s marriage;

(ii)        consent to the child’s adoption;

(iii)       consent to the child’s departure or removal from the Republic;

(iv)       consent to the child’s application for a passport; and

(v)        consent to the alienation or encumbrance of any immovable property of the child.[10]

 

An application for guardianship over a child should be made in the High Court and the court will take into account the best interest of the child, the relationship between the applicant and the child and any other factor that should, in the opinion of the court, be considered.[11]

 

4.           The responsibility to contribute to the child’s maintenance

 

The Act does not describe this responsibility and it is therefore suggested that the concept of maintenance stays unchanged. 

 

Parents have a common law duty to support their children.  The Maintenance Act, Act 99 of 1998 confirms that ‘the duty of supporting a child is an obligation which the parents have incurred jointly[12], that ‘the parents’ respective contributions to this obligation are apportioned between them in accordance with their respective means[13] and that ‘the duty exists, irrespective of whether a child is born in or out of wedlock[14].  Therefore both parents, married or unmarried, have a duty to support their children, provided that they are in a financial position to do so and insofar as the children are in need of support. 

 

A biological father of a child born out of wedlock who does not have parental responsibilities and rights towards the child is still under an obligation to pay maintenance towards the child.[15]  Should a mother claim support from the biological father of her child the burden rests on her to prove paternity. 

 

5.           The rights of the unmarried mother of a minor child

 

The Act confirms the common law position that the biological mother of a child, whether married or unmarried, has full parental responsibilities and rights towards her child[16].  Subject to certain exceptions, which are not relevant for purpose hereof, the biological mother of a child therefore automatically acquires all the parental responsibilities and rights described above and it cannot be taken away from her without intervention by the court.   

 

 

6.           The rights of the biological father of a child born of unmarried parents

 

The parental rights and responsibilities of the biological father of a child are more complicated.  There are a few avenues that a biological father can follow to acquire parental responsibilities and rights towards his child.

 

A biological father has full parental responsibilities and rights in respect of the child if he is married to the child’s biological mother or if he was married to her at the time of the child’s conception, birth or any time in between.[17]

 

A biological father of a child born of unmarried parents can automatically acquire (thus without going to court) full rights and responsibilities in respect of the child if:

 

a)       at the time of the child’s birth he is living with the mother in a permanent life-partnership; or

 

b)       he, regardless of whether he has lived with the mother

 

(i)    consents to be identified or successfully applies to be identified as the child’s father; and

 

(ii)   contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and

 

 (iii)  contributes or has attempted in good faith to contribute towards the expenses in connection with the maintenance of the child for a reasonable period.[18]

If the mother of the child disputes the fact that the above requirements have been satisfied by the father then the matter must be referred to one of the following service providers for mediation, namely, the family advocate, social worker, social service professional or other suitably qualified person[19] and, furthermore, ‘any party to the mediation may have the outcome of the mediation reviewed by a court’.[20]

If there is no dispute as to whether the father complies with the conditions set out in section 21 above, then the parties will be co-holders of full parental rights and responsibilities.  The biological father would be able to exercise his parental rights and responsibilities sufficiently if he and the mother draw up a parenting plan in terms of section 33 (see point 7 below) setting out how they would exercise their respective responsibilities and rights in respect of the child.

A biological father who does not have full parental rights and responsibilities due to the fact that he is or was married to the mother during conception or birth or a father who has not automatically acquired full parental rights and responsibilities in respect of a child due to the working of Section 21 of the Act described above can enter into an agreement with the biological mother providing for the acquisition of such parental rights and responsibilities in respect of the child.[21]  The Act prescribes certain formalities for this so called ‘parental responsibilities and rights agreement’.  The format of the agreement is prescribed.[22]  It also needs to be registered with the family advocate or made an order of court for it to take effect.[23]  This will only occur if the family advocate is satisfied that the parental responsibilities and rights agreement is in the best interest of the child.[24]

A biological father can also apply to the High Court, divorce court or children’s court for an order granting contact with or care of the child.[25]  The following factors will be taken into account before such an order will be granted by the court:

 

a)       the best interest of the child;

 

b)       the relationship between the applicant (being the father) and the child;

 

c)       the degree of commitment that the applicant has shown towards the child;

 

d)       the extent to which the applicant contributed towards the expenses in connection with the birth and maintenance of the child;

and

 

e)       any other factor that in the opinion of the court should be considered.[26]

 

Should the applicant also apply for guardianship over the child the High Court should be approached as it is the only court that has jurisdiction over matters concerning guardianship.

 

7.         Parenting plans

 

The Act prescribes that co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of a child.[27]

 

The biological father of a child born of unmarried parents will be deemed to be a co-holder of parental responsibilities and rights in respect of the child in the instances described above.  The fact that the Act prescribes that the parties may agree on a parenting plan indicates that a parenting plan is not a necessity and that the parties may elect to have one drafted or not.  It is therefore only drafted if the need exists.  The parties can enter into a parenting plan should they want a formalised structure of how their rights and responsibilities should be exercised. 

 

Having said this, such a plan will almost inevitably, in our view, be in the interest of both parties as well as the child, as it will pre-empt most disputes relating to the child, creates a mechanism for effectively (cheaply and speedily) dealing with disputes and provides the parties and the child involved with certainty that will be lacking in the nature of the circumstances of a child born out of wedlock.  

 

The Act does not provide any definition of a parenting plan, but in light of the provisions and regulations regarding parenting plans contained in the Act it can probably be defined as a written agreement between co-holders of parental responsibilities and rights defining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to the child.

 

The Act also dictates that when the co-holders of parental responsibilities and rights towards a child experience difficulty in the exercising of their respective responsibilities and rights they should first attempt to agree on a parenting plan before approaching a court for intervention[28] and that in the preparation of the parenting plan they should seek the assistance of the family advocate, a social worker or psychologist or mediation through a social worker or other suitably qualified person.[29]      

 

Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take them to court, before they do so, they should first try to agree on a parenting plan before approaching the court.  Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the court may then be approached.

 

The content of parenting plans can obviously vary, due to the fact that it is not compulsory in all instances.  The Act however describes what may be determined by a parenting plan as follows:

 

A parenting plan may determine any matter in connection with parental responsibilities and rights, including –

(a)       where and with whom the child is to live;    

(b)       the maintenance of the child;

(c)       contact between the child and –

       (i)       any of the parties; and

       (ii)      any other person; and

(d)       the schooling and religious upbringing of the child.[30]

 

Furthermore, the regulations to the Act prescribe the child’s participation in the preparation of a parenting plan, bearing in mind the child’s age, maturity and stage of development. Regulation 11, which deals with participation of a child in preparation of parenting plans states the following:

 

(1)       Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration.

 

 (2)                   When a parenting plan has been agreed [on] the child ... bearing in mind the child’s age, maturity and stage of development, [must] be informed of the contents of the parenting plan by the family advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative.

 

Parenting plans also have certain prescribed formalities that need to be adhered to before it can be registered with the family advocate or made and order of Court.  The formalities are set out in section 34 of the Act and the relevant ones include that it needs to be in writing and signed by the parties[31] and it must be in the prescribed format containing the prescribed particulars[32].

 

Parenting plans must also comply with the best interest of the child standard as prescribed in section 7 of the Act.[33]  Section 7 reads as follows:

 

(1)       Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-

(a)        the nature of the personal relationship between-

(i)         the child and the parents, or any specific parent; and

(ii)        the child and any other care-giver or person relevant in those circumstances;

 

(b)        the attitude of the parents, or any specific parent, towards-

(i)         the child; and

(ii)        the exercise of parental responsibilities and rights in respect of the child

 

(c)        the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d)        the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from-

(i)         both or either of the parents; or

(ii)        any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e)        the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f)         the need for the child-

(i)         to remain in the care of his or her parent, family and extended family; and

(ii)        to maintain a connection with his or her family, extended family, culture or tradition;

(g)        the child’s-

(i)         age, maturity and stage of development;

(ii)        gender;

(iii)       background; and

(iv)       any other relevant characteristics of the child;

(h)        the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i)         any disability that a child may have;

(j)         any chronic illness from which a child may suffer;

(k)        the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l)         the need to protect the child from any physical or psychological harm that may be caused by-

(i)         subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

(ii)        exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

(m)       any family violence involving the child or a family member of the child; and

(n)        which action or decision would avoid or minimize further legal or administrative proceedings in relation to the child.

 

Should the parents agree on a proposed parenting plan it is unusual for the court not to approve it.  In the case that the parents do not agree the court will decide on a parenting plan after a hearing or a trial.  The court will decide on a certain parenting plan that serves the best interest of the child as described above.

 

If a parenting plan is made an order of court the parties to the agreement are bound by it.  No rights and responsibilities in terms thereof may be denied by either of the parties.  Should there be a breach of the terms of the parenting plan, the relevant party may be found in contempt of court and the court may order jail time, fines or other types of punishment.  

 

8.         Conclusion

 

The best interest of a child is the yardstick against which any actions taken by the parents will be measured by the courts.  Should the family advocate or other service providers be approached to assist parents in the exercise of their parental responsibilities and rights the best interest of the child will always be the deciding factor.

 

Even though full parental responsibilities and rights are automatically conferred upon biological mothers of children it does not diminish the responsibilities and rights the biological father can have or acquire.  Our courts will not be looking for a ‘perfect parent’ as according to the court a perfect parent does not exist.  The court will rather be looking for the ‘least detrimental alternative for safeguarding the children’s growth and development.[34]

 

Author:  Beanca Benkenstein

30 March 2012

 


[1] Act 108 of 1996

[2] Refer to section 28 of the Constitution

[3] Section 18(1) and 18(2)

[4] Section 1

[5] Wheeler v Wheeler [2010] JOL 25083 (KZP)

[6] LB v YD 2009 (5) SA 463 (T)

[7] Section 1

[8] Section 18(2)(b)

[9] B v S 1995 3 SA 571 (A)

[10] Section 18(3)

[11] Section 24

[12] Section 15(3)(a)(i)

[13] Section 15(3)(a)(ii)

[14] Section 15(3)(a)(iii)

[15] Section 21(2)

[16] Section 19(1)

[17] Section 20

[18] Section 21(1)

[19] Section 21(3)(a)

[20] Section 21(3)(b)

[21] Section 22(1)

[22] Section 22(3), Form 4 of Regulation 7

[23] Section 22(4)

[24] Section 22(5)

[25] Section 23(1)

[26] Section 23(2)

[27] Section 33(1)

[28] Section 33(2)

[29] Section 33(5)

[30] Section 33(3)

[31] Section 34(1)(a)

[32] Sections 34(2)(a) & 34(3)(a)

[33] Section 33(4)

[34] Potgieter v Potgieter [2007] JOL 19597 (SCA)