Prior to the implementation of Chapter 3 of the Children’s Act, Act No. 38 of 2005 (hereinafter referred to as “the Children’s Act”), South Africa followed the common law, in respect of conferring parental authority pertaining to minor children on their respective parents. The Children’s Act however brought about significant changes to the issue of conferring or terminating parental authority, since the Children’s Act no longer refers to parental authority but now rather refers to the acquisition and termination of parental responsibilities and rights of parents towards their children.

Acquisition and loss of parental responsibilities and rights: 

Part 1 of Chapter 3 of the Children’s Act specifically deals with the acquisition and loss of parental responsibilities and rights, which are not merely limited to be applicable to the biological parents or guardians of a child, but these responsibilities and rights can also be acquired and conferred on to third parties who have no biological ties to the child in question, should the court deem same to be in the best interests of the child, which is always the predominant factor to consider where children are concerned. 

Section 18 of the Children’s Act: 

In terms of Section 18 of the Children’s Act, a person may have either full or specific parental responsibilities and rights in respect of a child and these responsibilities and rights include to care for the child, to maintain contact with the child, to act as guardian of the child and to contribute towards the maintenance of the child. 

Parental responsibilities and rights agreements (Parenting Plans):

Section 22 of the Children’s Act provides a mechanism for the mother of a child or any other person that has parental responsibilities and rights in respect of a child, to enter into an agreement providing for the acquisition of such responsibilities and rights in respect of that child, as set out in the agreement, with the biological father of that child or any other person having an interest in the care, well-being and development of the child. 

These agreements are very popular amongst parents that are no longer in a live-in relationship with each other, or who divorced, as the aim of these agreements are to confer and confirm each relevant party’s specific responsibilities and rights in relation to their children.

It is however important to note that parties should consult an attorney before entering into such a parental agreement, to ensure that all the parties fully comprehend their responsibilities and rights in respect of such an agreement and to fully understand the impact of such an agreement will have on their, as well as their children’s daily lives.

Assignment of Parental Responsibilities and Rights by an order of Court:

In circumstances where the biological parents of a child cannot agree on a specific party’s acquisition of parental responsibilities and rights in respect of a child or where any other interested third party wants to acquire parental responsibilities and rights of a child; that party may approach the High Court or local Children’s Court for an application to assign such responsibilities or rights to that party by an order of court in terms of the provisions of Section 23 of the Children’s Act.

In such an application the appropriate court can grant an order for the care of the child or contact with the child in favor of the party making such an application, subject to that order being in the best interests of the child concerned. The awarding of such an order by the court to a party does not affect the parental responsibilities and rights that any other person may have had prior to such an application, concerning such a child if such an application is brought under the auspices of Section 23.

Termination, extension, suspension or restriction of parental responsibilities and rights: 

Should it for a reason that is deemed by the appropriate Court, to be in the best interests of the child concerned, be necessary that a co-parent or third party vested with parental responsibilities and rights in respect of a child, be divested of such responsibilities and rights pertaining to that child, his or her responsibilities and rights may be terminated, extended, suspended or restricted, and an application of such nature can be made to either the High Court or Children’s Court with the necessary jurisdiction, in terms of the provisions of Section 28 of the Children’s Act. The applications are often also brought on an urgent basis, to protect the child concerned from any further or future harm.

In such an application an interested party can request the Court for an order either suspending for a specific period, or terminating as a whole, any or all of the parental responsibilities and rights which a specific person has in respect of a child. 

Under this section one can also apply for a court order extending or circumscribing the exercise of any or all of the parental responsibilities and rights that a specific person has in respect of a child. 

Conclusion: 

The implementation of Chapter 3 of the Children’s Act has had a profound impact on the codification of the acquisition and termination of responsibilities and rights of parents and/or interested third parties in that same is no longer governed by the common law principle of parental authority, but rather by the provisions of the Children’s Act. 

Parents or third parties with an interest in a child are therefore provided with appropriate and clear legal mechanisms to either acquire parental responsibilities and rights of a child, to share same with a co-parent or any other interested third party by agreement and/or if such an agreement cannot be reached, to approach the appropriate court for an order vesting such responsibilities and rights on that parent/third party or for the  extension, suspension or termination of same, as the case may be. 

By Cavanagh & Richards Attorneys

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For legal advice tailored to your specific situation, contact Cavanagh & Richards Attorneys).