The Children’s Act, 38 of 2005 (hereinafter referred to as “the Act”) deals with parental rights and responsibilities, and it can be summarily explained as follows :-
- A person can have full rights and responsibilities; OR
- Specific rights and responsibilities.
If a person only has specific rights it would mean that the person can only exercise some of the rights as described in their Parenting Plan or Parental rights and responsibilities agreements. An example of a person having specific responsibilities of paying maintenance but would not be the holder of any of the other rights.
A mother of a specific child will have full parental rights and responsibilities. If the mother of the child is a minor, the grandmother of the child will be the guardian of her grandchild and the child’s mother. A woman who gives birth following a surrogate agreement does not hold rights as the mother of the child. Those rights will be hold by the mother as per the surrogate agreement.
Married fathers will have full parental rights and responsibilities if he is married to the mother of the child, OR he was married to the mother of the child :-
- At the time of the conception of such child;
- At the time of the birth of the child; OR
- Anytime in between.
Unmarried fathers will have full parental rights and responsibilities if –
- If they were in a permanent life-partnership with the mother of the child;
- They consent to be identified as the father of the child;
- They applied to the Children’s Court in terms of Section 26 of the Act to be identified as the father;
- Pays damages in terms of customary law;
- Contributes or attempts to contribute to the upbringing of the child;
- Contributes or attempts to contribute to the maintenance child;
The unmarried father in terms of Section 26 –
- With the consent of the mother can apply to have his name entered into the birth registration of the minor child; OR
- He can apply to court for an order confirming his paternity if the mother refuses or is incompetent to give consent or cannot be located or is deceased.
Even if the unmarried father does not meet any of the above requirements, he may still be held liable for the maintenance of the minor child.
If there is a dispute between the mother and the unmarried father about his parental rightsand responsibilities the parties must first refer the dispute for mediation to the Family Advocate or a Social Worker or a Social Service Professional.
If there is a dispute between the mother and the unmarried father regarding his paternity towards the child, the unmarried father may request that the mother avail the child for a paternity test or the unmarried father may approach the High Court with an Application to compel the mother to avail the child for such paternity. This is a very tricky application and will only be considered in specific and extenuating circumstances.
In terms of Section 239 parental rights and responsibilities can also be assigned to any other person than the father or mother of the child. To assign such rights to a person who has an interest n the well-being or development of the child an application must be brought before the High Court.