First and foremost, one need to understand that guardianship of children is a vital aspect of both the children’s and the parents’ lives. A parent or person who wishes to apply for the sole guardianship of a child, must understand what is expected of a guardian.

In terms of section 18(2)(b) as well as section 18(3) of the Children’s Act, 38 of 2005 (hereinafter referred to as “the Act”) it states that a guardian must:

• administer and safeguard the child’s property and property interests;
• assist or represent the child in administrative, contractual and other legal matters; or
• 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.

Either parent may exercise any aspect of guardianship independently, except for certain matters that require both parents’ consent, which is fully set out in section 18(3)(c). The parents are usually joint guardians and are called the 'natural guardians'. If for some reason the natural guardian cannot carry out his or her duties, the court appoints a 'legal guardian' for the children. It is important to note that the High Court of South Africa is the upper guardian of all children in South Africa.

If a guardian is not satisfied with their duties as set out in the Act, the High Court of South Africa can be approached to intervene and has the power to terminate a guardianship and transfer care of the child to another person or parent. The question then arises, when can guardianship be taken away from either the other parent, or in certain circumstances, be awarded to a third party.

In order to answer the question, the following factors need to be taken into consideration:

1. Whether the parent has shown any interest in building or maintaining a relationship with the minor child;
2. The frequency of the parent and the minor child’s contact with one another;
3. Will the parent that is going to obtain sole guardianship be able to provide for the minor child on his/her own;
4. The best interest of the minor child needs to be considered such as future trips across borders, obtaining passports, etc.;
5. Whether the other parent complies with any of their parental rights and responsibilities in terms of contact, care or maintenance.

There are various other factors that can be considered and such factors will be determined from case to case.

When can you bring a guardianship application or even consider it:

• If your ex-spouse does not contribute in any manner, whatsoever, towards the upbringing of your child;
• If you want to travel with your child outside the Republic;
• If you need to apply for an unabridged birth certificate or passport of a child;
• If the minor child perhaps needs to be adopted by a new spouse.

If you have been the only parent making all the decisions of the minor child’s well-being without assistance from the other parent, however, in instances where the administration where both parents’ consent is necessary, the other party refuses assistance as a way of punishment or spite then you need to consider bringing a guardianship application to ensure that you can make day-to-day decisions pertaining to the minor child and to act in minor’s best interest.

Cavanagh & Richards Attorneys are expert family and divorce attorneys. If you require assistance or advice with the guardianship of a child - call us now on 012 940 1947 or email info@crlawchambers.co.za.

Written by Emmirenchia Loots

2 April 2020