Parental Rights and responsibilities

The Children’s Act 38 of 2005 (“the Act”) sets out the parental rights and responsibilities that a person can have in respect of a child. These parental rights and responsibilities include the responsibility and the right to:

1. care for the child; 

2. maintain contact with the child; 

3. act as guardian of the child; and 

4. contribute to the maintenance of the child.

If more than one person is a legal guardian of a child then, except for specific instances or if a court directs otherwise, each guardian can exercise his/her rights and responsibilities independently and without the consent of the other guardian.

Specific instances where both guardians’ consent and/or refusal will be required include the following:

1. consent to the child’s marriage;

2. consent to the child’s adoption;

3. consent to the child’s departure or removal from the South Africa;

4. consent to the child’s application for a passport; and

5. consent to the alienation or encumbrance of any immovable property of the child.

The Act governs both the acquisition and loss of parental responsibilities and rights not only by the parents of the child but also in respect of other interested persons. 

There are several ways in which a person can acquire parental responsibilities and rights in respect of a child. Depending on the circumstances of each case a person may acquire parental responsibilities and rights automatically, by way of an agreement, through a will or by means of a court order. 

The biological mother and the married biological father acquire parental responsibilities and rights automatically in terms of the Act. 

The Act however does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers. Unmarried biological fathers will only acquire automatic parental rights and responsibilities if:

1. at the time of the child’s birth, he was living in a permanent life partnership with the mother; or

2. regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law; and contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance.

If a dispute arises as to whether the unmarried father meets the requirements as set out above the matter must be referred to mediation. If the mediation is unsuccessful then either party may approach the court for adjudication of the issues.