·
In
terms of the common law parents have authority over their children
·
The
authority gives parents rights, powers, duties and responsibilities over a child
and a child’s property
·
Parental
authority was replaced by parental responsibilities and rights(PRR) ito sec
1(1) of the Children’s act
·
PRR
includes caring for a minor child, maintaining contact with the child, acting
as a child’s guardian and contributing towards the maintenance of the child.
Guardianship:
·
The
Children’s act repealed the Guardianship act – hence sec 18(3) of the Children’s
act now regulates guardianship of minor children
·
Guardianship
relates to the administration and safeguarding of property or interests
therefore a guardian is to assist or represent a minor child in the administration
of and giving consent to any matter where consent/assistance is legally
required.
·
A
parent is not entitled to be compensated for controlling a minor child’s estate
– they are therefore obliged to administer the estate as a prudent and diligent
person, failing which the minor child may sue his/her parent/s for delictual
damages.
Care=custody:
·
Care
is defined in terms of sec 1(1) of the Children’s Act.
·
A
court will not easily interfere with the PRR a parent have iro his/her minor
child.
·
Previously
custody referred to the parent who will be given the control over the child on
a daily basis (where the child resides), ito the Children’s Act “care” refers
to various aspects of caring for the child, hence is a much wider concept than
custody.
Contact=access:
·
Contact
rights relates to maintaining a personal relationship between the minor child
and the non-primary caregiver.
·
The
purpose of contact rights is therefore to ensure communication between the aforementioned
on a regular basis.
Maintenance:
self-study
Acquiring
parental R&R:
PRR can be obtained as
follows:
·
Automatically
or by means of specific legal mechanisms.
(1)
At
birth the biological mother of a minor child automatically
receives PRR whether she is married or not. ( sec 19 of the Children’s Act)
(2)
Sec
18-21 of the Children’s act furthermore regulates the position iro artificial
fertilization – in this regard you must understand the implications of these
sections.
(3)
Married
fathers = receives
full PRR if he was married to the biological mother at the time of conception
or birth, or married anytime after the birth.
(4)
Unmarried
fathers = until
1998 fathers had obligations but no inherit rights – Fraser case: Fraser became
aware of the adoption of his minor child born outside wedlock. He successfully applied
to the high court to have the adoption set aside. Sec 18(4)(d) was declared unconstitutional,
but the ruling was suspended for 2 years to bring the law in line with the
ruling. In the interim the order was over-turned by the Supreme Court. Fraser applied
to the constitutional court – that refused the order as the court held that it
would not be in the best interest of the minor child to be removed from the
adoptive parents after staying with the adoptive parents for a period of 3
years. Fraser then plotted to kidnap the minor child. He was convicted of
kidnapping and sentenced to imprisonment which was later over turned to a community
–based sentence.
The Fraser case brought about
the Natural fathers of children born out of wedlock act that improvement the
PRR of unmarried fathers, but did not place them on the same footing as married
fathers.
In terms of sec 21 of the
Children’s act, unmarried fathers now automatically qualify for full PRR.
·
Parental
responsibilities & rights agreements
* Sec
22 (1) of the Children’s act allows that a mother of a minor child may enter
into a written agreement with the biological father of the child to share in all
or any of the PRR.
* Sec
22 (1) is not only limited to biological mothers and fathers
* It
is important to note that for the agreement to have effect it has to be
registered with the family advocate’s office.
·
Assignment
by orders of court:
* A
person that does not have PRR may be assigned contact and care iro a minor
child by means of a court order.
* Sec
23 of the Children’s Act provides that any interested party may approach the high
court and apply for PRR - e.g. grand parents.
·
Appointment
ito Will:
Sec 27 of Children’s act provides that a
person with sole guardianship or sole care giving can appoint a fit person ito
his/her will to become the guardian/primary care-giver of the minor child in
the event of the parent predeceasing the minor child.
·
Adoption:
* Adoption
is the formal process by which existing PRR are terminated and vested in
another person.
* The
Children’s act governs adoption in RSA and inter-country adoptions.
* The
act provides that any person may adopt as long as the adoptive parent is above
18 years of age.
RSA Adoptions:
* In
RSA only a minor child can be adopted
* The
minor must also be adoptable (adoptability refers to a child that is a orphan, have
been abandoned or abused or in need of a permanent alternative placement)
* An
adoption social welfare officer determines whether a child is adoptable
* The
Director General of Social Development has to keep a register namely the “register
on adoptable children and prospective adoptive parents” (RACAP)
Adoptive
parents
* Any
adoptive parent must be found to be fit and proper
* The
adoption application must be made in the prescribed manner at the children’s
court.
* The
application must be accompanied by a report from the social welfare officer and
a letter from the dept of social development recommending the adoption.
* The
consent of all guardians must be obtained, if the guardian is a minor she must
be assisted by her guardian.
* Please
refer to the section dealing with when consent is not required -page 293. (Sec
236 of Children’s act.)
* If
the adoptable child is 10 years of age and mature enough to understand the
proceedings his/her consent must also be obtained.
* Before
consent is obtained the parties must be counseled by a social officer
* Any
party to the adoption may withdraw his/her consent within 60 days after signing
the adoption application; hence an adoption order may only be finalized
thereafter.
* If
the consent of a guardian is unreasonably withheld one can apply to the high
court to dispense with such consent ito sec 241 of the Children’s act.
A freeing order: Sec 235 of the Children’s act
A parent or guardian may
request to be freed from PRR pending the adoption application.
“a child protection
organization accredited in terms of section 25 1 to
Provide adoption services or
an adoption social worker may issue an order freeing a parent or person whose
consent to the adoption of the child is required in terms of section 233 from
parental responsibilities and rights in respect of the child pending the adoption
of the child.”
Consideration
of order: Sec
240 of Children’s act
* The
court must take all relevant circumstances into account (such as the religious
and cultural background of the child, the prospective parent’s circumstances, the
adoptive parent’s circumstances and nature as well as the report form the social
welfare officer)
* An
adoption order may only be made if it is in the child’s best interest and the
prospective parents have been properly assessed to be fit and proper parents
and the consent of all parties have been obtained.
Notice
to be given of proposed adoption: Sec 38 of the Children’s Act
238. “(1) when a child becomes available for adoption, the
presiding officer must without delay cause the sheriff to serve a notice on
each person whose consent to the adoption is required in terms of section 233.
(2)
The notice must-
(a)
Inform
the person whose consent is sought of the proposed adoption of the child; and
(b)
request that person either to consent to or to withhold consent for the
adoption, or, if that person is the biological father of the child to whom the
mother is not married, request him to consent to or withhold consent for the
adoption, or to apply in terms of section 239 for the adoption of the child.
(3)
if a person on whom a notice in terms of subsection (1) has been served fails
to comply with a request contained in the notice within 30 days, that person
must be regarded as having consented to the adoption.”
Advertisement
& Payment:
* Under
no circumstances are one allowed to compensate or advertise for the adoption of
a child. The only compensation that may be paid is in respect of the birth
mother’s medical expenses.
Effect
of order: Sec
234 & 242 of Children’s Act
* Family members of the biological
parents of the child also looses any PRR claim that may have in respect of the
child, unless a post adoption agreement has been entered into in terms whereof
the court approves limited means to
retain a link between the family members and the said child. The agreement must
be drafted in a particular format.
* Sec 234.( 1) The parent or
guardian of a child may, before an application for the adoption of a child is
made in terms of section 239, enter into a post-adoption agreement with
a (a) communication, including visitation between the child and the
parent or guardian concerned and such other person as may be stipulated in the
agreement;….
Rescission:
Sec 243 of
Children’s Act
* An
adoption order may be rescinded on application by an interested party
* The
application must be made to the high court/children’s court within a reasonable
period of time (not more than 2 years)
* If
the rescission order is granted, the PRR ceases from such date the rescission
is made.
Inter-country adoption:
The purposes of this Chapter
are give effect to the Hague Convention on Inter-country Adoption and to provide
for the recognition of certain foreign adoptions. A convention country is
therefore a country that forms part of the Hague convention.
Chapter
16 schedule 1 Children’s act governs inter-country adoptions. One must
differentiate between the following forms of inter-country adoptions:
* 1. Adoption of a child that is habitually
resident in RSA by an adoptive parent resident in a convention country. (Child
in RSA, parent from Italy)
In
this case the prospective adoptive parent must apply to the central authority
of the convention country where she resides (Italy). The central authority of
that country (Italy)
must compile a report and submit same to the DG social development in RSA. If a
suitable child is available in RSA, the DG prepares a report and submits same
to the central authority of the country where the prospective adoptive parent
resides (Italy).
If the central authorities of the 2 countries agree on the adoption, the DG
refers the matter to children’s court in RSA who will decide on the adoption.
Please
refer to the requirements in your text books.
* 2. Adoption of a child that is habitually
resident in RSA, by a parent from a non convention country: (Child in RSA,
parent from Japan)
Must
apply to competent authority of the country then follow the same procedure as
above. Japan is not a convention country;
hence this situation will arise when a Japanese prospective parent wants to
adopt a RSA child. The prospective parent must approach the Japanese authority
and then follow the same procedure as in 1.
* 3. Adoption by a RSA resident of a
child who is habitually resident in convention country: (Prospective
parents in RSA – child in Italy)
Apply
to central authority, as 1
* 4. Adoption by a RSA parent of a
child in a non-convention country: (Parents in RSA –child in Japan)
Same
as in 2.
Convention
country adoptions are recognition as foreign adoptions; however in the case of
non-convention countries a declaratory order may be requested to recognize the
adoption.
If more than 1 person has PRR:
·
A
co-holder of PRR may exercise his/her PRR without the other party‘s consent unless
otherwise prescribed.
Guardianship:
·
Sec
18(5) & sec 18(3) © of the Children’s Act provides that both guardians consent
are required when a minor wants to get married, be adopted, leave RSA, apply
for a passport or sell/encumber immovable property.
·
The
court may order exemption of the dual consent if it is found to be in the child’s
best interest and judged on its own merits.
·
The
act furthermore provides that due consideration must be given to the views of
other co-holders; where after a co-holder of PRR may act independently. Sec
31(2)
Surrender
/ Transfer of PRR:
* A person with PRR may not surrender/transfer his/her PRR,
although he/she may agree to act on the co-holders behalf.
Parenting
Plan:
·
Co-holders
of PRR that experience difficulty in exercising PRR may approach the High court
for an order assisting with the enforcement of their PRR. Prior to such an application
the parties are however required to try and enter into a parenting
agreement/plan.
·
The
assistance of the family advocate’s office is a requirement in drafting a
parenting plan.
·
A
parenting plan may determine any matter in connection with PRR, but has to be
in writing, signed by the parties and must comply with sec 7 of the Children’s
Act (best interest).
·
A
parenting plan may be varied/terminated – the family advocate has to be
involved with such application
·
If
a court orders a parenting plan, a court has to amend /terminate such
agreement.
Judicial
interference:
·
The
high court has common law and statutory powers to interfere in PRR.
·
The
statutory powers are granted ito the Matrimonial Affairs Act – sec 5(1), Marriage
Act - sec 25(4), the Divorce act- sec 6(3), the Domestic Violence Act- sec 7(6)
and various sections of the Children’s act.
Dispensing
with consent iro medical treatment:
·
A
child under the age of 12 must have the consent of his/her guardian prior to
medical treatment/operation or HIV testing.
·
If
a child is 12 the child still requires the guardian’s assistance but not
his/her consent.
·
If
consent is withhold, the Minister of Social Development may give consent, and
if the minister also refuse consent, the high court may be approach to grant consent.
·
On
an urgent basis, consent may be postponed or the superintendent of a hospital
can consent to such treatment/operation.
Child in need of care & protection;
·
In
the case of a child that is in need, a court may order the temporary safe guarding
of the child, by removing the child from his/her circumstances and placing the
child in a safe environment;
·
The
social worker must investigate such cases and report on her findings within 90
days
·
The
court will consider the findings of the social officer’s report and may make an
order retaining the minor child in temporary care of another, transferring the minor to another place of
safe keeping, or place the child under family control.
Child participation & legal;
representation: and orders
– self-study.
International child abduction:
Was governed by the Hague convention until
1 April 2010, today it is governed by chapter 17 schedule 2 of the Children’s
act.
Enforcement of PRR and termination of
PRR: Self-study
