The rights and responsibilities of a parent is set out in the Children’s Act 38 of 2008 (the “Children’s Act”) and can be defined as a complex set of rights, duties and responsibilities which have to be performed in the best interest of the child. These rights and responsibilities include the following elements namely: caring of the child, maintaining contact with the child, to act as a guardian over the child and to contribute to the maintenance of the child.
These can also be seen as a set of parental rights; the right to care for a child; to have and to maintain contact with the child; and the right to act as a guardian of the child.
Care of the child can also be termed as the custody of the child and includes providing the child with a suitable place to live, safeguarding its well-being, protecting it from abuse, maltreatment and neglect as provided for in the Constitution. Contact between the parent and the child can also be termed access to the child in South African law. This can be explained as the maintenance of a personal relationship between the child and the parent with whom the child does not live. This entails communicating with the child on a regular basis through visits, letters, telephone calls, Skype, or any other form of communication.
Guardianship on the other hand is the right to administer the child’s property, to assist the child in administration, contractual or other legal matters, and to consent to a child’s marriage, adoption and departure from South Africa, application for a passport, or alienation or encumbrance of any immovable property. The last element of parent rights and responsibilities is maintenance. This can be defined as the duty of a parent to support the child financially, by contributing towards the child’s education, upbringing, accommodation, food, clothing etc.
An overriding principle that is of utmost importance in South African law is that the best interests of the child is of paramount importance in any matter involving the child; whether it be a dispute between the child’s parents regarding the care of the child, the contact or guardianship or even regarding the maintenance of the child. This best interest of the child principle was established in international law and entrenched in the Constitution of the Republic of South Africa as well as in section 9 of the Children’s Act.
In determining what care, contact and guardianship arrangement would best serve the minor child’s best interests, the court does not look for the “perfect parent” but rather focuses on finding the least detrimental option available for safeguarding the minor child’s growth and development.
It is important for a minor child born out of wedlock or a minor child after a divorce, to build and maintain a relationship with the non-primary carer. The aim of contact is to give the non-primary carer the opportunity to preserve to some extent a parent-child relationship. Contact rights to a child born out of wedlock or after divorce should only be removed if it can be proved that this contact is not in the best interests of that child.
It is important to take note that more than one person may hold parental rights and responsibilities in respect of the same child.