The_Law_of_Parent_and_Child_.pdf

The Law of Parent and Child Legal relationship between parents and children 7.1 Constitutional protection 💡 The law of parent and child definition : Subdivision of Family law that regulates the private law relationship between children and their parents, guardians, or other care-givers ⇒ this La...

The Law of Parent and Child Legal relationship between parents and children 7.1 Constitutional protection 💡 The law of parent and child definition : Subdivision of Family law that regulates the private law relationship between children and their parents, guardians, or other care-givers ⇒ this Law studies ways parents/subs acquire parental rights and responsibilities, how they should be exercised, and how they come to an end ITO the constitution Children have same rights as adults in the BOR S28 specifically protects children Children 28. (1) Every child has the right— (a) to a name and a nationality from birth; (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services; (d) to be protected from maltreatment, neglect, abuse or degradation; The Law of Parent and Child 1 (e) to be protected from exploitative labour practices; (f) not to be required or permitted to perform work or provide services that— (i) are inappropriate for a person of that child’s age; or (ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development (g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be— (i) kept separately from detained persons over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age; (h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and (i) not to be used directly in armed conflict, and to be protected in times of armed conflict. (2) A child’s best interests are of paramount importance in every matter concerning the The Law of Parent and Child 2 child. (3) In this section “child” means a person under the age of 18 years. The most important : Right of every child ITO S28(1)(b) to family care and parental care, ot to appropriate alternative care when removed from the family environment right of child ITO S28(2) to the paramountcy of their best interests in every matter that concerns them SvM S28 creates a right independent of other rights specified in S28(1) (The purple above) it is also subject to limitation ITO S36 of the const. The best interest standard Application was limited in previous private law disputes pertaining to parental rights and responsibilities its application ito the constitution to every matter concerning the child is thus significant Has been criticized as being vague To combat this → there are 7 factors in Section & of the Childrens Act to be considered when the standard has to be applied Best interests of child standard 7. (1) Whenever a provision of this Act requires the best interests of the child standard 25 to be applied, the following factors must be taken into consideration where relevant, namely- The Law of Parent and Child 3 (a) the nature of the personal relationship between(i) the child and the parents, or any specific parent; and (ii) the child and any other care-giver or person relevant in those 30 circumstances; (b) the attitude of the parents, or any specific parent, towards(i) the child; and (ii) the exercise of parental responsibilities and rights in respect of the child; (c) the capacity of the parents, or any specific parent, or of any other care-giver or 35 person, to provide for the needs of the child, including emotional and intellectual needs; (4 the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from(i) both or either of the parents; or 40 (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with 45 the parents, or any specific parent, on a regular basis; the need for the child- The Law of Parent and Child 4 (i) to remain in the care of his or her parent, family and extended family; and (ii) to maintain a connection with his or her family, extended family, culture or tradition; 50 (g) the child’s(i) age, maturity and stage of development; (ii) gender; (iii) background; and (h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (9 any disability that a child may have; 0) any chronic illness from which a child may suffer; 0 (iv) any other relevant characteristics of the child; 55 34 No. 28944 GOVERNMENT GAZETTE, 19 JUNE 2006 Act No. 38,2005 CHILDREN’S ACT, 2005 (k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; the need to protect the child &om any physical or psychological harm that may (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other The Law of Parent and Child 5 harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, illtreatment, (m) any family violence involving the child or a family member of the child; and (n) which action or decision would avoid or minimise further legal or (2) In this section “parent” includes any person who has parental responsibilities and (I) be caused by- 5 violence or harmful behaviour towards another person; 10 administrative proceedings in relation to the child. rights in respect of a child. Summary : 1. The nature of the relationship between the child an the parents or any other caregiver 2. The attitude of the parents towards the child and the exercise of parental responsibilities in respect of the child 3. The capacity of the parents or any other care giver, to provide for the needs of the child including emotional and intellectual needs 4. The likely effect on the child of any change in the child circumstances 5. the childs age, maturity, and stage of development 6. which action or decision would avoid or minimize further legal administrative proceedings in relation to the child The constitution does not expressly protect the rights of parents despite them bearing the primary burden of care In terms of common law however parents still have → right to assume responsibility over their children without arbitrary interference from the state The constitution does protect the right to life indirectly via the right to dignity The Law of Parent and Child 6 7.2 Sources of law of parent and child The Childrens Act 38 of 2005 legal relationship between parent and child used to be regulated by common law some aspects have not been codified some are governed by other statues Children’s Act is now most important source 7.3 New Terminology at common law → parents had “parental power” or “authority” over if acquired parental power ->the person had right and duty to act as guardian of the child (guardianship) to make day-to-day decisions regarding the person of the child (custody) right to maintain contact with child (access) parental power → shifted to responsibilities 💡 parental responsibilities and rights is defined in the CA to include: 1. to care for kid 2. to maintain contact with kid 3. To act as guardian of kid 4. to contribute maintenance of kid This list is not exhaustive guardianship has been retained The Law of Parent and Child 7 custody and access also mean care and contact WW v EW held the intention of the legislature was to bring common law conceppts in line with the broader statutory terms → and that the use of common law terms is not wrong → it is just preferable to use new technology 7.4 Content of parental responsibilities and rights May have full or specific parental rights and responsibilities Full specific 4 components mentioned above 1. to care for kid 2. to maintain contact with kid 3. To act as guardian of kid 4. to contribute maintenance of kid 7.4.1 Care Broader than the common law concept of custody “care”, in relation to a child, includes, where appropriate(a) within available means, providing the child with (i) a suitable place to live; (ii) living conditions that are conducive to the child’s health, well-being and development; and (iii) the necessary financial support; (b) safeguarding and promoting the well-being of the child; (c) protecting the child from maltreatment, abuse, neglect, degradation, 3 5 discrimination, exploitation and any other physical, emotional or The Law of Parent and Child 8 moral harm or hazards; (4 respecting, protecting, promoting and securing the fulfilment of, and guarding against any infingement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act; (e) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development; guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of 45 development; (g) guiding the behaviour of the child in a humane manner; (h) maintaining a sound relationship with the child; (i) accommodating any special needs that the child may have; and 0) generally, ensuring that the best interests of the child is the paramount 50 concern in all matters affecting the child; Right to Chastisement right to discipline your child punishment and corporeal punishment must be moderate and reasonable The Law of Parent and Child 9 YG v S common law defense of reasonable chastisement is unconstitutional and helf that the defemcse no longer applied in our law 7.4.2 Contact Contact has retained its common law meaning → CA defines it broaderly “contact”, in relation to a child, means- (a)maintaining a personal relationship with the child; and (b) if the child lives with someone else(i) communication on a regular basis with the child in person, including- (aa) visiting the child; or (bb) being visited by the child; or (ii) communication on a regular basis with the child in any other manner, including(aa) through the post; or (bb) by telephone or any other form of electronic communication; The more extended the right to contact → greater the benefit to kid and parents 7.4.3 Guardianship Guardians must: 1. administer and safeguard the child’s property and property interests 2. assist or represent the child in administrative, contractual, and other legal matters 3. give or refuse any consent required by law in respect of the child 7.4.4 Contribution towards maintenance CA does not define responsibility and right to contribute to maintenance of the child The Law of Parent and Child 10 Maintenance Act 99 of 1998 Common law duty of a parent to support kid extends to support as the child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education. maintenance and responsibility and right to care may overlap 7.5 Acquisition of parental responsibilities and rights Distinction between automatic and assigned acquisition parental responsibilities and rights are automatically acquired by the parents of a child at birth giving effect to the constitutional right to parental care When automatic → there is no prior investigation into whether or not the acquisition is in the best interest of the child Once parents satisfy CA requirements → considered legal parents of the child An uncle or grandparents however will nor require parental responsibilities and rights automatically at birth UNLESS the state finds that it is in the best interest of the child The acquisition is thus ASSIGNED 💡 Primary distinction → made between automatic and assigned allocation/acquisition of parental responsbilities and rights on the basis of whether or not the best interest standard is applied before the allocation / acquisition takes place In the case of automatic acquisition → the best interest standard is not applied Automatic acquisition of parental responsibilities and rights at birth of child The Law of Parent and Child 11 ITO the CA → only biological parents of a child can automatically acquire parental responsibilities and rights in respect of the child Biological parents Mother → section 19 of the Children’s Act Unless its a surrogacy → the women who gave birth to a child will be regarded as the legal mother of the child She assumes full parental responsibility and rights in respect of her child at birth However if the mother is a minor and unmarried → She is not competent to act as the guardian of her child In this case → the MOTHERS guardian will be the guardian of the child until she is a major or becomes married ONLY if the biological father of the child does not already have guardianship of the child The mother will have care of and contact to her child Father → Sections 20 and 21 of the Children’s Act If married to birth giving mother → father presumed to be the legal father of the child and assume full parental responsibility and rights Presumed paternity has not been expressly incorporated into the CA RvM The presumption of paternity (pater est quem nuptiae demonstants) remains applicable until rebutted If not married → biological father will only be regarded as legal father if he satisfies the requirements ITO S21 of the CA S21 creates 2 possibilities for fathers to acquire parental responsibilities and rights automatically The Law of Parent and Child 12 1 2 if at birth the father lived with the mother in a permanent lifepartnership IF all of the following 3 requirements are satisfied ⇒ father is identified as biological father 2 ⇒ contributes or has attempted to contribute to childs 1 upbringing in good faith ⇒ 3 contributes or has in good faith attempted to contribute towards the expenses in connection with maintenance for a reasonable period of time If biological father falls within scope → shares the same responsibilities and rights as those in a formally recognized marriage Section 21 (above) applies whether child was born before or after the commencement of the CA Father of child born before this date (2005) will be deemed to have acquired full parental responsibilities and rights as from 1 July 2007 earliest (when this section (21) came into operation) For disputes of a fathers parental responsibilities and rights ITO S21 The matter must be referred for mediation to a ‘’family advocate, social worker, social service professional or other suitably qualified persons’’ after mediation → if unsatisfied → parent can refer outcome of mediation to a court for a review 💡 If the donor of the sperm for Artificial conception is the husband of the child’s mother → or satisfies the requirements of S21 → he will be considered the legal father of the child Status of artificially conceived children If a women gives birth to a child → who she is not genetically related to BC of art. conception → she will still be regarded as the legal mother of the child The Law of Parent and Child 13 The spouse with be the other legal parent → provided they consented to the artificial fertilizations VVJ and another v Minister of Social Development and another Declared S40 unconstitutional as it held to violate artificially conceived children's rights to family / and or parental care The right to have their best interests considered is of paramount importance Section 40 violated their right to dignity and equality as well as the dignity and equality of the parties to a lifelong permanent partnership Section was to be read as including “or permanent life partner” 💡 💡 An informal life partner can now automatically acquire parental responsibilities and rights for Art. conceived child → same as spouse to mother who gave birth The donor of the gametes → incurs no right, responsibility, duty or obligation Section 40(3) creates 2 exceptions A donor may acquire responsibilities and rights if the donor (of the egg) was the women who gave birth to the child If the donor was the husband of such a women at the time of the artificial fertilization Assigned acquisition of parental responsibilities and rights parent or person who wishes to acquire parental resp. and rights → must prove it is in the best interest of the child first The Law of Parent and Child 14 ITO the CA → it may be assigned by : 1 2 by means of a parental responsibility and rights agreement in terms of a court order Parental responsibilities and rights agreements → S22 of CA Possibility of conferring parental responsibility and rights on a person by agreement mother or person who has R&R of child → may enter into agreement to confer R&R to another person may be conferred to biological father or anyone having an interest in care, wellbeing, and development of the child A person may only confer R&R that they have themsleves at the time of agreement 💡 The parental agreement must comply with certain formal requirements to become effective before agreement is registered or made an order or the court → family advcate or court must be satisfied that the parental R&R agreement is in the best interest of the child CA makes provision for amendment and termination of parental R&R agreements Assignment of a court order (limited to first assignment here) CA provisions do not affect inherent powers of the HC as upper guardian of all minors to assign R&R these cases → S23 and S24 of the CA will be used S23 regulates the assignment of contact and / or care S24 regulates guardianship only the HC may consider an application relating to assignment of guardianship The Law of Parent and Child 15 If the kid already has a guardian → applicant must submit reasons why the child’s existing guardian is not suitable to have guardianship in respect of the child RC v HC rights relates to milestone matters → eg formal consent necessary to achieve legality in important aspects of the kids life such as change in status → or movement beyond the courts jurisdiction QG and another v CS and another even though a sperm donor does not automatically acquire parental R&R → nothing stops the courts from assigning care and contact to a donor ITO S23 if it is in the best interests of them child 💡 Surrogacy and adoption → the court assigns fulll parental R&R to the applicants Procedure of adoption and surrogacy are regulated by Chapter 15 and 16 in CA 7.5 Co-existence of parental responsibilities and rights General statutory guidelines: Section 30 of the CA CA allows more than one person or parent to hold PR&R ITO the same children Co-holders may act without consent of the other co-holder The Law of Parent and Child 16 Co-holder may not surrender or transfer his or her responsibilities and rights to another person By agreement - co-holder may allow another co-holder or person to exercise any or all of his or her responsibilities and rights on his or her behalf Whether expressly placed in loco perentis or not → there is a duty to exercise responsibilities and rights as necessary to safeguard and protect child in his/her care Co-existence of guardianship → Section 18(3) of the CA 💡 more than one person holds guardianship? consent to: ⇒ consent of all guardians must childs marriage childs adoption childs departure or removal from the republic childs application for a passport alienation or encumbrance of any immovable property of the minor Major decisions involving child: Section 31 CA Decisions that require consideration of views and wishes of child before decision → due consideration must be given to views and wishes expressed by the child keep in mind Age, maturity, and stage of development 1. decision relating to matter requiring consent of all guardians 2. decision affecting contect between child and co-holder of PR&R 3. decision regarding assignment of guardianship or care to another person after death of a parent The Law of Parent and Child 17 4. decision likely to change or adversely effect the child living conditions, education, health, personal relations with parent or fam member → or childs general well-being Decisions that require consideration of views and wishes of co-holder Decisions that could adversely effect another co-holders exercise of PR&R → due consideration must be given to views and wishes other co-holder expresses JvJ “due consideration” does not mean that the decision making party is bound to give effect to wishes and views of the other co-holder Once consideration has been given → parent can act independently parenting plans → section 33-35 of CA not the same as PR&R agreements 💡 Parenting plans are agreed upon to help persons who already hold PR&R → to exercise them Not obligatory Where co-holders are having difficulties in exercising PR&R → must first seek to agree on a parenting plan before seeking court intervention examples of contents include: where they must live maintenance contact schooling religious upbringing How PP must be amended or terminated PP must comply with best interest standard The Law of Parent and Child 18 must be in writing signed by parties registered with the family advocate or made an order of court Refusal to allow exercise of parental responsibilities and rights → Section 35 of CA 💡 Any person who has care or custody who refuses another person to exercise their PR&R (thus in contravention of court order or PR&R agreement) is guilty of an offence. Any person who prevents that person from exercising their PR&R is also guilty if an offense. They are liable on conviction to a fine, or imprisonment not exceeding 1 year. Offence can only be committed in contravention of a court order or agreement that has become effective. 7.5 Parental Responsibilities and Rights at Divorce Introduction Divorce causes long-term consequences in children law has introduce special measures for children after divorce → to ensure protection of interest of children after divorce Found in the Divorce Act and Certain Divorce Matters Act Divorce Act ⇒ Section 6 court may make following orders for minors: Custody order / order for sole custody guardianship order / order for sole guardianship The Law of Parent and Child 19 order regarding access order for maintenance 💡 Common law “custody” and “access” are still employed in the Divorce ACt Court may make order that they deem fit Best interest of children remain overriding consideration ⇒ Court may not grant decree of divorce unless: 1. Satisfied that provisions made or contemplated with regard to the welfare of any minor or dependent child of civil union are satisfactory or are the best given circumstance 2. If enquiry is instituted ITO the Mediation in Certain Divorce Matters Act, the court has considered the report and recommendation of the family advocate Mediation in certain Divorce Matters Act 24 of 1987 Act does not make provision for mediation services in divorce proceedings Office of family advocate investigates circumstances of children → with the aim of making recommendations to court Fam advocate is assisted by family counsellors social workers, psychologists, educationalist, church leaders etc Court or any party can request enquiry Family advocate may apply to court for authorization order to enquire Van Vuuren v Van Vuuren family advocate should institute an enquiry ITO the Act in the following circumstances: 1. Where there are serious problems with regard to contact The Law of Parent and Child 20 2. Intention not to grant care of young children to mother 3. intention to separate children 4. intention to grant care of child to someone other than the parents 5. Make an arrangement with regard to care or contact which is Prima Facie not in the interest of the child 💡 The report of the family Advocate → should contain balanced recommendations and may not choose sides or be prescriptive to the court Soller v G Fam Adv provides a professional and neutral channel of communication between conflicting parents (and child) and judicial officer legal practitioner stands in the corner of the child Mediation Mediation is a more appropriate method of dispute resolution SALRC is in process of finalizing legislation to provide for Family Resolution Bill Allowing voices to be heard reducing costs (re) assignment of parental responsibilities and rights at divorce Parents retaining full parental responsibilities and rights after getting divorce → is in the best interest of the children Guardianship, care and contact maintained CARE ⇒ right to decide where the child is to reside “care giver” or “primary residence” to indicate with which parent child will reside Other parent has right to contact The Law of Parent and Child 21 Parenting plan can be incorporated into divorce settlement and made part of the divorce order to give it force of law Care orders Decree of divorce only granted once provisions made with regard to welfare on a minor is satisfactory Court may deprive one parent of right to care → make order of sole care Will inquire into circumstances of children to decide what is in their best interest factors in Section 7 will be considered 💡 Other factors: nature of personal relationship between child and parent and capacity of parent to provide for needs of child need for child to remain in care of parent, family and extended family and to maintain connection with family Consideration of child’s gender taking wishes of child into consideration nature of personal relationship between child and parent and capacity of parent to provide for needs of child in the past → mothers granted physical care → mothering was deemed a component of a women’s being exclusively Van Der Linde v Van Der Linde rejected the so-called “tender-years” or “maternal preference” rule Concept of mothering is indicative of a function rather than a persona not necessarily situated in the biological mother The Law of Parent and Child 22 Court deemed application of maternal rule a useful point of departure → specifically for young kids however it does not serve as a “universally valid axiom” Ex Parte Critchfield the mother giving birth to child can be considered a factor but that would be unfair discrimination ITO the constitution IF court attached improper weight to it Heaton and Kruger rejection of assumption that mothers make better caregiving parents is in accordance with the equality clause as well as the child’s constitutional right to “parental care” need for child to remain in care of parent, family and extended family and to maintain connection with family McCall v McCall Desirability or otherwise of keeping siblings together Van Linde v Van Linde Siblings who experience the trauma of divorce tend to form a bond with one another that gives then a feeling of security against “onslaught from outside” Consideration of child’s gender In McCall above → court also discussed desirability of applying the doctrine of sex matching Girls growing up with moms and boys growing up with dads The Law of Parent and Child 23 Stated it is a “well established proposition” and that a boy needs a masculine environment which includes discipline taking wishes of child into consideration Seen in Section 10 of the Act Childs preference should be taken into account → if court satisfied that the emotional maturity and intellect can accurately give expression to their feelings Contact order The parent who is not the primary caregiver has a right to reasonable contact with the children born from the civil union Contact order aimed at maintaining relationship between parent and child more extended the right → the greater the benefit Court may deprive contact if it is in the best interest of the child Van Rooyen v Van Rooyen Before constitutional era case children should be protected from the “confusing signals” resulting from homosexual behavior of parent Court decided to limit homosexual parents right to to contact in detailed terms Later → sequel to the case → original case was seen as “clearly constitutionally untenable” VvV Criticized decision in Van Rooyen legally wrong to describe homosexual orientation as abnormal The Law of Parent and Child 24 Ex parte Critchfield In both care and contact orders → court should not be concerned with sexual preferences of parties Should not be seen in a more serious light than adulterous flirtations When sexual preferences of a parent pose and actual or potential threat to welfare of minor → court must consider impact on children best interest principle should take precedence over the right of the parent not to be discriminated against based on his or her sexual orientation 7.8 Termination, Extension, Suspension or restriction of parental responsibilities and rights The state has the power and responsibility to interfere with the exercise of parental responsibilities and rights if the interests of the child is being threatened These powers are derived from common law and specific legislation Common law powers of court As upper guardian → HC has inherent powers to make decisions in the best interest of the children Court has wide discretion and power to terminate, extend, suspend, and restrict PR&R Statutory powers of court Matrimonial affairs Act 37 of 1953 Authorizes court to make any order it deems fit ITO care, contact, or guardianship of child in circumstances where parents are married but living apart → or are already divorced The Law of Parent and Child 25 Marriage Act 25 of 1962 and RCMA HC grant consent to civil and or customary marriage of a minor where parent, guardian , or presiding officer refuses to consent Administration of estates Act 66 of 1965 No parent of guardian may alienate or burden with a mortgage bon immovable property of a minor without the consent of the master of the HC or HC itself Divorce Act and RCMA to safeguard interest of children at divorce → divorce court may make order that it deems fit ITO care, contact, or guardianship of such children Domestic Violence Act 116 of 1998 Court that issues a protection order against a perpetrator of domestic violence ITO this Act → may refuse / restrict perpetrators contact with a child → if in bet interest Children’s Act empowers the court to interfere with the way in which parental responsibilities and rights are exercised ITO a child Section 28 applications to terminate or extend etc PR&R Automatic termination of parental responsibility and rights terminates automatically when: death of child death or parent or person with PR&R Child becomes a major / or by concluding a valid civil marriage or costmary marriage adoption of child rescission of an adoption order The Law of Parent and Child 26 7.6 Maintenance 💡 S28(1)(c) of Const. → protects every child’s right to basic nutrition, shelter, basic health care services and social services Maintenance and parental responsibilities and rights PR&R expressly includes responsibility and right to maintain a child not limited to parents or persons with PR&R ⇒ unmarried biological father has duty to maintain his child notwithstanding the fact that he may not have acquired PR&R Parents duty to maintain continues as long as child is in need of maintenance Even after becoming a major → and PR&R are no longer Legal foundation of maintenance claim of children Van Der Vyver and Joubert Maintenance obligation is founded upon : Blood relationship Presumed blood relationship Fact acknowledged by the law to treat parties as blood relations → such as adoption 2 further possibilities firstly ⇒ MB v NB responsibility to contribute to maintenance of child can be incurred by a person acting in loco parentis secondly ⇒ The Law of Parent and Child 27 person will incur liability when vested with the full parental responsibilities and rights by agreement or order of court Liability and maintenance providers 💡 Priority of maintenance liability depends on the nature of the family relationship Biological parents of child obliged to maintain their children according to their means legal nature between parents is irrelevant Even if they do not have PR&R Artificially conceived children S40 → must be regarded as child of birth giving mother and her spouse → if both consent No right, responsibility, duty or obligation arises between donor of gametes Priority of other family members First and only case law found is: Barnes v Union and South West Africa Insurance Co Ltd there is an order of priority under common law If father and mother are lacking → burden of maintaining grandchildren or other descendants has been laid by the civil law on parental and maternal grandfather and rest of ascendants Van Der Vyver and Joubert The Law of Parent and Child 28 Obligation primarily rests on materal and paternal grandparents and if they cannot fullfill obligation → duty is transferred to brothers and sisters of child 💡 direct line is held liable before the collateral line (siblings) is held liable Does not extend further than siblings ITO child born out of wedlock → common law position is that they can claim maintenance from mothers family but not fathers family Was held to be unconstitutional → liability for maintenance of a paternal grandparent of a child born out of wedlock was recognized 💡 No obligation for: Auties and uncles nieces and nephews Adopted children Adoption order terminated all bonds (except bonds of blood relations) between adopted natural parents (before adoption) Transfers it to adoptive parents Stepchildren only recently relationship between step parent and child is recognized Heystek v Heystek maintenance obligation founded upon S28(1)(b) → right to parental care and (c) → right to basic nutrition, shelter, basic health care and social services of the constitution The Law of Parent and Child 29 MB v NB considered maintenance obligation of a stepfather mother argued that stepfather by implication undertook maintenance when he made an undertaking to the school yo be jointly and severally liable for school fees Stepfather positioned himself in loco parentis → could not renounce his obligation as a result of the breakdown of the marriage Child had a right to expect him to provide the family and parental care Court did not seem to exclude general duty of support 💡 Not all stepfathers or stepmothers will thus necessarily become obliged to maintain theo stepchildren Mother of dead father was in this case also liable for school fees stepfather only liable for one third of school fees Children who get married Maintenance obligation of a parent comes to an end when child concludes a marriage Reciprocal duty of maintenance is created between child and his / her spouse immediately upon conclusion f marriage only revived when child can no longer support themselves → and spouse is no longer by law capable or liable to support the child Requirements for maintenance Child is entitled when 1. cannot provide his / her own maintenance needs 2. nearest family relation from whom the maintenance is claimed → has means to provide the maintenance The Law of Parent and Child 30 Size of maintenance claim reasonable under the circumstances Determined by considering financial capacity of parents or persons who are legally liable for child maintenance as well as living standard + social status of child if there is a discrepancy → living standards of providers and child will be considered Enforcement of maintenance if person responsible to pay maintenance does not do so voluntarily → court order can be obtained to enforce Must be obtained from the Maintenance Act 99 of 1999 may be claimed through HC or divorce court (during proceedings) Termination of duty of support automatically ends when child becomes self-supporting may thus continue after child becomes a major or when other components of PR&R (guardianship, care, contact) are terminated Questions to reflect on during week 11 and 12: 1. Where does the Law of Parent and Child fit into the scope of Family Law and Child Law? 2. To what extent are the rights of children and parents protected in the Constitution? 3. Who are automatically regarded as the legal parents of a child at birth? 4. How can other persons, besides the biological parents of a child, acquire parental responsibilities and rights? 5. How does the Children's Act regulate the way in which co-holders should exercise their parental responsibilities and rights? 6. When will the parental responsibilities and rights exercised in relation to a child come to an end? The Law of Parent and Child 31 7. How are children's rights protected in the event of divorce? 8. What are the legal foundations for the duty to support a child? 9. Who can be held liable for maintaining a child? 3. Learning outcomes There are quite number of learning outcomes for the next 2 weeks. After working through the content of weeks 11 and 12, you should be able to: 1. Define the Law of Parent and Child; 2. critically discuss the two most important constitutional rights of children as far as the study of the Law of Parent and Child is concerned; 3. discuss the content and importance of section 7 of the Children’s Act for the Law of Parent and Child; 4. critically discuss the extent to which the law protects the rights of parents in respect of their children; 5. explain how the Constitution has had an impact on the Law of Parent and Child. 6. Explain, with reference to the judgment in WW v EW, the impact of the new terminology on the substantive Law of Parent and Child. 7. define “parental responsibilities and rights” and be able to between “full” and “specific” parental responsibilities and rights; distinguish 8. in general terms, explain what is meant by the concept of “care”, “contact” and “guardianship”; 9. explain what is understood by “maintenance” in relation to a child and how the duty of support may overlap with the duty of care. 10. Distinguish between the automatic acquisition of parental responsibilities and rights and assigned acquisition of such responsibilities and rights with reference to examples; 11. explain why a distinction is made between a naturally conceived child and an artificially conceived child for purposes of automatic acquisition; The Law of Parent and Child 32 12. critically discuss the automatic acquisition of parental responsibilities and rights; 13. discuss the various ways in which parental responsibilities and rights can be assigned to a parent or other interested person and a client accordingly; advise 14. name and briefly discuss the various ways in which a court can assign full parental responsibilities and rights to a person or persons. 15. discuss the general guidelines provided in section 30 of the Children’s Act regarding the co-exercise of parental responsibilities and rights in general; 16. indicate how the exercise of guardianship is regulated in terms of the Children’s Act; 17. discuss the way in which section 31 of the Children’s Act provides for the exercise of parental responsibilities and rights where major decisions involving the child are made; 18. distinguish between parenting plans and parental responsibilities and rights agreements; 19. discuss the circumstances in which a parenting plan would become necessary and compulsory; 20. discuss the legal remedies available to a co-holder of parental responsibilities and rights who is being prohibited by another co-holder from exercising his or her responsibilities and rights; 21. discuss the special statutory measures that serve to protect the interests of children at divorce; 22. discuss the general guidelines with regard to the granting of care orders at divorce and be able to the factors/criteria that have been formulated in case law to give effect to these guidelines; apply 23. discuss and the principles relating to the granting of contact orders upon divorce with reference to case law. apply 24. discuss the common law powers of the high court as upper guardian of all minors to interfere with, or even terminate parental responsibilities and rights; The Law of Parent and Child 33 25. discuss the statutory powers of the court in this regard; 26. list the ways in which parental responsibilities and rights will automatically come to an end. 27. explain why the maintenance obligation is dealt with separately from the other incidents of parental responsibilities and rights; 28. indicate the different legal foundations that could create a maintenance obligation towards a child; 29. discuss the maintenance liability of parents and other family members; 30. name the conditions upon which a child would be entitled to claim maintenance; 31. discuss the way in which the size of a maintenance is determined; 32. discuss the automatic termination of the duty of support towards a child. The Law of Parent and Child 34