PARENTAL RESPONSIBILITIES AND RIGHTS IN RESPECT OF MINOR CHILDREN

BY F S SPANGENBERG

The Children’s Act is specifically formulated to protect our vulnerable children, protecting and promoting their best interest.  Every child has the right to be cared for, has the right to be maintained, and have contact with his/her parents.

In terms of Section 18(1) a parent may either acquire full responsibilities and rights in respect of a minor child, alternatively specific responsibilities and rights.  Parental responsibilities and rights include the following-

i) to care for a child;

ii) to maintain contact with a child;

iii) to act as guardian of a child; and

iv) to contribute to the maintenance of a child

In terms of Section 19 of the Children’s Act, the biological mother of a minor child, irrespective of whether she is married or unmarried, have full parental responsibilities and rights.  However, this section does not apply to children born from surrogacy agreements.

The position relating to married fathers is regulated by Section 20 of the Children’s Act.  The married father acquires full parental responsibilities and rights in respect of the minor child, whether he is married to the mother of the child, or was married to the mother of the child at the time of conception, birth or any time between conception and birth.

The position for unmarried fathers prior to the enactment of the Children’s Act was not as favourable since the enactment of the Children’s Act.  In terms of Section 21 of the Children’s Act, the unmarried father, in certain instances, also acquire full parental responsibilities and rights in respect of the minor child.

In terms of Section 21, unmarried fathers acquire full parental responsibilities and rights if, at the time of conception or birth of the child, he was living or is living with the mother of the child in a permanent relationship.  Alternatively, regardless of whether he was living with the mother in a permanent life- partnership but consents to be identified as the father of the child, or successfully applies to be identified as the father of the child, or pays damages in terms of customary law.

Alternatively, the father contributes or attempts in good faith to contribute to the upbringing of the child for a reasonable period, and contributes or has attempted to contribute in good faith towards the expenses of the child for a reasonable period.

In practice, regardless of whether the position has been amended in terms of the Children’s Act, unmarried fathers still have great difficulty in acquiring full responsibilities and rights in respect of their children, simply because the child’s mother does not wish for him to be acknowledged as such.

Parents tend to forget that regardless of their personal feelings towards each other, the person suffering the most is the children, who in a lot of cases are scared to voice their opinion, namely that they want to have a relationship with both their parents, in fear that they might be disappointing their mother.

Many people are under the impression that a father’s right to have contact with his children is dependent on whether he pays maintenance or not.  A father may not be paying maintenance, but he still has a right to have contact with his children even though it might not be legally right, as he has the responsibility to maintain his children.

In conclusion, always remember that the best interest of children is of paramount importance, and all decisions concerning children should be made in their best interest.