Week 11 Intro to Acquisition PDF

THEME 3 LAW OF PARENT AND CHILD SUBDIVISIONS OF FAMILY LAW : CHILD LAW (KID 410) Aspects of private law Criminal law and procedure Constitutional and international law CHILD LAW (KID 410) (a) Private legal status of children in SA Aspects of private law (b) Parent and child relationship (...

THEME 3 LAW OF PARENT AND CHILD SUBDIVISIONS OF FAMILY LAW : CHILD LAW (KID 410) Aspects of private law Criminal law and procedure Constitutional and international law CHILD LAW (KID 410) (a) Private legal status of children in SA Aspects of private law (b) Parent and child relationship (c) Theory of children’s rights OVERLAP BETWEEN FAMILY LAW AND CHILD LAW Law of parent and child Law of parent and child 7.1 Definition and Constitutional protection 7.2 Sources 7.3 Terminology 7.4 Content of PR & R 7.5 Acquisition of PR&R 7.6 – 7.7 Exercise of PR&R 7.8 Termination 7.9 Maintenance 7.1 DEFINITION OF THE LAW OF PARENT AND CHILD Subdivision of family law that regulates the private law relationship between children and their parents / guardians / care-givers 7.2 MAIN SOURCES OF LAW a. Constitution b. Children’s Act 38 of 2005 c. Common law d. Case law CONSTITUTIONAL PROTECTION The Constitution Sec 28(1)(b):“Every child has the right – to family care or parental care, or to appropriate alternative care when removed from the family environment.” CONSTITUTIONAL PROTECTION The Constitution Sec 28(2):“A child’s best interests are of paramount importance in every matter concerning the child.” WHAT ABOUT PARENTS’ RIGHTS? • Parents bear primary burden of caring for their children. • Constitution does not expressly protect rights of parents. • Common law : exercise rights without arbitrary state interference. Law of parent and child 7.1 Definition and Constitutional protection 7.2 Sources 7.3 Terminology 7.4 Content of PR & R 7.5 Acquisition of PR&R 7.6 – 7.7 Exercise of PR&R 7.8 Termination 7.9 Maintenance 7.3 NEW TERMINOLOGY “Parental power” or “parental authority” included: • right and duty to act as guardian (guardianship) • make day to day decisions (custody) • maintain contact (access) 7.3 NEW TERMINOLOGY PREVIOUSLY NOW Common law Children’s Act Parental power which included: Parental responsibilities and rights which includes: • guardianship • custody • Access • • • • guardianship care contact maintenance 7.3 NEW TERMINOLOGY Importance of WW v EW • preferable to use new terminology • in line with international and statutory norms Law of parent and child 7.1 Definition and Constitutional protection 7.2 Sources 7.3 Terminology 7.4 Content of PR & R 7.5 Acquisition of PR&R 7.6 – 7.7 Exercise of PR&R 7.8 Termination 7.9 Maintenance 7.4 CONTENT OF PR & R Care: s 1(1) of the Children’s Act Defined in very wide terms but generally includes the responsibility and rights to make day-to-day decisions regarding the person of the child Guardianship: s 18(3) of the Children’s Act Includes assistance with the child’s estate and legal matters e.g. consent to marriage Contact: s 1(1) of the Children’s Act Maintaining a personal relationship with a child and if the child lives with someone else it means maintaining communication on a regular basis with the child Maintenance: s 15(2) of the Maintenance Act Financial support and can overlap with the responsibility and right of care Law of parent and child 7.1 Definition and Constitutional protection 7.2 Sources 7.3 Terminology 7.4 Content of PR & R 7.5 Acquisition of PR&R 7.6 – 7.7 Exercise of PR&R 7.8 Termination 7.9 Maintenance HOW DOES A PERSON ACQUIRE PR+R Automatic acquisition Assigned acquisition Not take interests of child into account Investigation into best interests of the child AUTOMATIC ACQUISITION OF PR & R Biological mother (s 19 of Children’s Act): - woman who gave birth to child (exception: surrogacy) - full PR & R automatically (exception: mother herself is a minor) AUTOMATIC ACQUISITION OF PR & R Biological father (s 20 and 21 of Children’s Act) Married fathers Unmarried fathers Section 20 Section 21 Husband of birth mother will automatically acquire parental responsibilities and rights at birth. OPTION 1 Lives in permanent-life partnership with birth mother OR OPTION 2 • Identified himself as the father AND • Contributed to upbringing AND • Contributed to maintenance ARTIFICIALLY CONCEIVED CHILDREN (SECTION 40) Who acquires PR & R automatically? - Woman who gives birth to child - The woman’s spouse / civil union partner Who does not acquire PR & R? - Domestic partner - Third party donor of gametes HOW DOES A PERSON ACQUIRE PR+R Automatic acquisition Assigned acquisition Not take interests of child into account Investigation into best interests of the child