The Childrens Act 38 of 2005, passed by Parlia ment and signed by President Thabo Mbeki, stirred up controversy as certain sections came into effect on July 1 this year.
With media attention fixed on the sections allowing children access to contraceptives and HIV-testing, other provisions that have a significant effect on the parent-child relationship went unnoticed.
The Act comes following a shift in emphasis in the past decade from the rights of parents to the rights of children. There is recognition that it is the childs right to be cared for and that parents bear the responsibility for raising children as opposed to parents rights to exercise authority over the child. The diverse and alternative family structures in South Africa also necessitated new provisions to protect children. This shift is recognised in chapter three of the Childrens Act, entitled Parental Responsibilities and Rights.
Parental responsibilities and rights include guardianship, care and contact. Traditional concepts, such as custody and access, are now defined respectively as care and contact. This is a clear indication that it is the childs right to be cared for and not a parents right to have custody or control over a child.
Care is comprehensively defined in the Act and relates to all aspects of the childs day-to-day needs. Contact is defined broadly to encompass all forms of communication with a child to maintain a relationship with him/her and is not limited to physical access. It is the childs right to have a relationship and contact with both parents or to be spared contact with a parent if contact is not in the childs best interest.
Parents of children born during their marriage both have equal and full responsibilities and rights.
The chapter aims to protect the parent-child relationship where the father of the child is not married to the mother. Before the Childrens Act, unmarried fathers did not automatically have custody or access rights. Unmarried fathers had to go through costly and sometimes very acrimonious applications to the high court to gain any rights. An acrimonious split with the mother sometimes left an unmarried father in a position where a lengthy and strong relationship with his child could be summarily cut off as a result of the break-up.
An unmarried father now automatically has parental rights and responsibilities in respect of the child if he was living with the mother at the time of the childs birth or, irrespective of whether he had been living with the mother, if the father agrees that he is the father, is involved in the childs upbringing and he pays maintenance for the child.
An unmarried father will, therefore, be the guardian of the child with the mother, instead of the mother having sole guardianship. This part of the Act has not been tested in courts and it is unclear what automatic parental responsibilities and rights for unmarried fathers means practically, particularly when the parents are not living together or in a relationship.
Parents living together in a life-partnership will continue to act together with full parental rights and responsibilities without the need for the father to apply to the high court to formalise his relationship with his children.
However, it can never be in the childs best interests that automatic rights mean that an unmarried father, who is not living with the child, can remove the child from the mothers care and insist that the child lives with him.
Similarly, it cannot be automatically in a childs best interest to have unlimited contact with an unmarried father in the absence of a pre-existing relationship and contact should probably be phased in.
The section on unmarried fathers was one of the main driving forces to put some sections of the Act into operation and not to wait for the whole Act to come into effect. Although there has been criticism that giving these rights to unmarried fathers will encroach on the rights of the mothers, the fundamental issue at stake is the childs right to know and have a relationship with both parents.
Carina du Toit is from the University of Pretorias Centre for Child Law