The Children’s Act of 2005 (The Act) has made many changes to the laws relating to children and their parents. The Act repealed many of the old laws which regulated the relationship between parents and their children in South Africa, including the Natural Fathers of Children Born out of Wedlock Act. This has left many unmarried fathers disillusioned and confused about their rights and responsibilities in respect of any of their children. Some even believe that they have lost any rights that were afforded to them and that the new Act only secures the rights of mothers. This is not the case, as will be discussed below.
Previously the rights and responsibilities of unmarried fathers were governed by the provisions of the Natural Fathers of Children Born out of Wedlock Act. This Act proved, in various situations and circumstances, to be insufficient, and inadequate, in protecting the interests, rights and responsibilities of unmarried fathers, their children and the relationship between them. This inadequacy is hoped to have been remedied by the promulgation of the Children’s Act.
Section 18(1) of the Act states that:
” A person may have either full or specific parental responsibilities and rights in respect of a child.”
Section 18(2) of the Act goes on to state that parental responsibilities and rights include the responsibility and right:
“(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.”
Section 19 of the Act bestows full parental responsibilities and rights on any biological mother of a child, regardless of whether she is married or not. This position is not any different from previous legislation, but what about the father?
Section 20 of the Act provides:
“The biological father of a child has full parental responsibilities and rights in respect of the child –
(a) if he is married to the child’s mother; or
(b) if he was married to the child’s mother at –
(i) the time of the child’s conception;
(ii) the time of the child’s birth; or
(iii) any time between the child’s conception and birth.”
Section 20 clearly places biological fathers of children on the same level as the biological mother as long as the father falls into one of the four abovementioned categories. What happens if the father does not fall into one of the categories?
Section 21 of the Children’s Act provides that:
“(1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of Section 20, acquires full parental responsibilities and rights in respect of the child –
(a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership;
(b) if he, regardless of whether he has lived or is living with the mother –
(i) consents to be identified or successfully applies in terms of Section 26 to be identified as the child’s father or pays damages in terms of customary law.
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child.
(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1)(a) or (b), the matter must be referred to mediation to a family advocate, social worker or other suitably qualified person.
(b) any party to the mediation may have the outcome of the mediation reviewed by a court.
(4) This section applies regardless of whether the child was born before or after the commencement of the Act.”
In basic terms Section 21 automatically bestows parental responsibilities and rights on unmarried biological fathers of children if the father is living with the biological mother when the child is born, or if he does not live with the mother, when he accepts to be identified as the child’s biological father or has proven his paternity in court, and has contributed or tried to contribute to the child’s upbringing and maintenance. Section 21 therefore grants and protects the rights of unmarried fathers more adequately than previous legislation. This protection however, does not detract or alter the duty a father has to pay maintenance for his children.
Section 21 applies retrospectively, meaning that it applies to children and unmarried fathers before the effective date of 1 April 2010 and not only to those born after the effective date.
Sections 20 and 21 change the law drastically and give fathers more rights. Fathers can now have joint parental responsibilities and rights with mothers, and all major decisions relating to a minor child (a child under 18 years of age) needs to be taken by the parties jointly. This is very different from the old position where, in the case of a divorced or unmarried parents, one parent (usually the mother) was awarded the custody of a minor child and the other parent (usually the father) would be entitled to visitation. The old position also granted the custodian parents the power to make all the day-to-day decisions in the minor child’s life without needing to consult the other parent. The new dispensation now provides for joint decisions making and a need for consultation between parents.
Even in a situation where a child’s parents were not married, a father can now apply for parental responsibilities and rights if he complies with one of the requirements mentioned above. In such a situation the mother would still remain the primary caregiver of the child, but the father would now have joint parental responsibilities and rights in respect of the child and thus have a say in the decisions pertaining to the child.
It is still important to note that despite Sections 20 and 21 the biological father is still responsible to pay maintenance for any and all his children, regardless of whether he has chosen to apply for parental responsibilities and rights or not.
In the event of a dispute regarding such maintenance arising between a minor child’s parents regarding the parental responsibilities and rights, the dispute must be referred for mediation to a family advocate, social worker, or other qualified person. The outcome of such mediation proceedings is not final and parties may still approach a court to enforce their rights or clarify their position.
The Act further allows a child to bring an application before court, and be assisted in doing so, if the child wishes to have contact with his or her father. If a child is mature enough, of an appropriate age and can fully comprehend the matter, such a child should be allowed to participate in the matter.
In conclusion it can be seen that the new Children’s Act does indeed protect and secure the rights of fathers, mothers and children in a way which has never been achieved before. It is important that the general public, and more specifically mothers and fathers become aware of the changes that have been made so that they may be fully aware of their rights and responsibilities in respect of their children.