Lectures 5-8: The Law of Parent and Child

Chapter 7: Legal Relationship between Parents and

Children
Convention on the Rights of the Child:

 SA ratified the CRC in 1995

 Committee on the Rights of Child and reporting procedure
 Best interests of child (article 3): “In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.”

African Charter on the Rights and Welfare of the Child:

 SA ratified the ACRWC in 2000

 Specific regional approach and perspective
 African Committee of Experts on the Rights and Welfare of the Child
 Best interests of the Child (article 4): “In all actions concerning the child
undertaken by any person or authority the best interests of the child shall
be the primary consideration”

7.1. Constitutional Protection

“The Law of Parent and Child” can be defined as that subdivision of Family Law
that regulates the private law relationship between children and their
parents, guardians or other care-givers. It studies the ways in which parents or
parent-substitutes:

1. May acquire parental responsibilities and rights.

2. How such responsibilities and rights should be exercised.
3. And how these responsibilities and rights come to an end.

The legal relationship between parents and children must be seen firstly against the
backdrop of the Constitution. While children have the same rights as adults in terms of
the Bill of Rights, section 28 of the Constitution specifically protects the rights of
children. These rights in section 28 are most important:

1. The right of every child in terms of section 28(1)(b) “to family care or parental
care, or to appropriate alternative care when removed from the family
environment.”
2. The right of the child, in terms of section 28(2), to the paramountcy of his or her
best interests in every matter that concerns him or her.

According to Sachs J in S v M, section 28(2) creates a right that is independent of the

other rights specified in section 28(1). Furthermore, section 28(2) is not to be seen as
an overbearing trump of other rights, but in the same manner as other
constitutional rights, subject to the limitation clause (section 36).
The best interest standard is not a new concept in SA, but its application has
previously been limited to private law disputes pertaining to parental responsibilities
and rights. The application in terms of the constitution to every matter concerning the
child is thus significant.

The strengths of the best interests of the child is that it is context sensitive as well as
child sensitive. The best interest standard has often been criticised as being vague. In
an attempt to give substance to the standard, SA has followed the international trend
by providing a checklist of factors in section 7 of the children’s act to be considered
when the standard has to be applied:

1. The nature of the relationship between the child and the parents or any
other care giver;
2. The attitude of the parents towards the child and the exercise of the
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’s
circumstances;
5. The child’s age, maturity and stage of development;
6. Which action or decision would avoid or minimise further legal or
administrative proceedings in relation to the child.

The constitution does not expressly protect the rights of parents as parents, even
though the parents of the child bear the primary burden to care for their child.
However, in terms of common law, parents still have the right to assume responsibility
of their child without arbitrary interference from the state.

The constitution protects the right to family indirectly via the right to dignity. In the
present context to the right to family life could become important when the state
attempts to interfere with the parent/child relationship by threatening to remove the
child from their parent’s care.

7.2. Sources of law of Parent and Child

Until the enactment of Children’s Act 38 of 2005, the legal relationship between
parents and children was largely regulated by common law as applied and interpreted
by courts. There are also some aspects that have yet to be codified. However, the
Children’s Act has since its inception become the most NB source of this area of law.

7.3. New Terminology

Traditionally in terms of common law: parents were said to have “parental power” or
“parental authority” over their children. If a person gained that parental power, he or
she had the right or duty to act as a guardian of the child (called guardianship),
to make the day-to-day decisions regarding the person of the child (called
custody), and the right to maintain contact with the child (called access).
There was a development in the culture of children’s rights, and as a result of that
there was a shift from the notion of parental “powers” to the idea that parents had
“responsibilities” and children had rights.

Parental responsibilities and rights is defined in the Children’s Act in relation to a

child to include the responsibility and the right:

a) To care for the child

b) To maintain contact with the child
c) To act as guardian of the child
d) To contribute to the maintenance of the child

(S18(2))

A person may have either full or specific parental responsibilities and rights in respect
of a child (S18(1))

Parental responsibilities are said to include these components; therefore, this means
that other components may be added and this list is not exhaustive. While the term
“guardianship” is maintained, the common law concepts of “custody” and “access”
now also mean “care” and “contact”. The court in WW v EW held that the
intention of the legislature was to bring the common-law concepts in line with the
broader statutory terms, and while the use of common law terminology may not
be wrong, it is preferable to use the new terminology in pleadings and court
orders.

7.4. Content of Parental Responsibilities and Rights

1. Care

2. Contact

3. Guardianship

4. Maintenance

A person may either have full or specific parental responsibilities and rights in respect
of a child. Full parental rights and responsibilities include at least 4 of the
abovementioned components.

CARE

Care is defined much more broadly in comparison to the common law concept of
“custody”.
As part of the right to “custody”, a parent traditionally also had a right of
chastisement to discipline the child. This discipline would include punishment, and
even corporal punishment, but had to be moderate and reasonable. The High Court in
YG v S recently declared the common law defence of reasonable chastisement
unconstitutional and held that the defence no longer applied in our law. This means
that a parent can no longer defend him or herself against a charge of
assault, for example, on the basis that he or she had the right to chastise
the child.

Freedom of Religion South Africa v Minister of Justice and Constitutional

Development and Others 2019

📌 YG v S (2017, High Court)

Issue:

 Whether the common law defence of “reasonable chastisement” (parents

using moderate physical punishment, like smacking, to discipline children) was
still valid in South African law.

Court’s Finding:

 The defence of reasonable chastisement was declared unconstitutional.

 Why?

o It violated children’s rights in the Constitution:

 s 10 – dignity

 s 12(1)(c) – freedom and security of the person (freedom

from violence)
  s 28(2) – best interests of the child are of paramount
importance

o The court found that children must be protected from all forms of
violence, including “moderate” corporal punishment in the home.

Result:

 Parents could no longer claim the defence of “reasonable chastisement”

if charged with assault against their child.

 In practice: if a parent smacks or hits a child, they can be charged with assault
— and cannot defend themselves by saying it was “reasonable discipline.”

📌 Freedom of Religion South Africa v Minister of Justice (2020, Constitutional

Court)

Appeal:

 Religious groups (led by Freedom of Religion SA) challenged the High Court’s
decision in YG v S.

 Their argument:

o The ruling interfered with religious freedom (s 15 Constitution),

because many religions allow parents to discipline children physically in a
“moderate” way.

o They said parents should retain the right to use reasonable chastisement
as part of their religious belief and parental role.

Constitutional Court’s Decision:

 The Court dismissed the appeal and confirmed the High Court’s decision.

 Key reasoning:

o Children’s rights (to dignity, equality, and freedom from violence)

outweigh the parental claim to religious freedom in this context.

o There are less restrictive means of disciplining children that do not

involve violence (e.g., guidance, time-outs, positive discipline).

o Therefore, abolishing the defence of reasonable chastisement was a

justifiable limitation on religious freedom.
📌 Final Outcome

 Since 2020, South African law no longer recognises reasonable

chastisement as a defence.

 Any physical punishment of a child = assault under the law.

 Parents must use non-violent forms of discipline.

CONTACT

Although “contact” in relation to a child has in essence retained its common law
meaning, the Children’s Act defines contact in somewhat broader terms and includes:

It is generally agreed that the more extended the right to contact the greater the
benefit for the child (and parent).

GUARDIANSHIP

As under the common law, “guardianship” in terms of the Children’s Act means that a
parent or other person who acts as a guardian must- (18(3))

As far as the legal relationship between parent and child are concerned, the responsibility and the right to
guardianship is thus of great significance.

MAINTENANCE
Unlike the other components of parental responsibilities and rights, the Children’s Act
does not define the responsibility to the right to “contribute to the maintenance of the
child”. In terms of the Maintenance Act 99 of 1998, the common law duty of a parent
to support his or her child extends to such 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.”
The responsibility and right to contribute to the maintenance of a child may overlap
with the responsibility and right to care for the child in so far as the latter also
includes providing the child with a suitable place to live and the necessary financial
support.

7.5. Acquisition of Parental Responsibilities and Rights

7.5.1. Distinction between automatic and assigned acquisition

Parental responsibilities and rights are automatically acquired by the parents of the
child at birth, thereby giving effect to the child’s constitutional right to parental care.
The allocation of parental responsibilities and rights at birth occurs automatically.
When responsibilities and rights are acquired automatically, there is no prior
investigation into whether or not the acquisition is in the best interests of the child.
Once the parents satisfy the requirements in terms of the Children’s Act, the parents
will automatically assume full parental responsibilities and rights and be considered
the legal parents of the child.

An uncle or grandparent on the other hand will not be able to gain full parental
responsibilities and rights at birth automatically unless the states (usually the courts)
find that it is in the best interests of the child. In this case the acquisition will be
deemed “assigned”. Seen in this way, a primary distinction can be made
between automatic and assigned allocation/acquisition of parental rights
and responsibilities on the basis of whether or not the best interests
standard is applied before the allocation/acquisition takes place. In the case
of automatic acquisition, the best interests standard is not applied, while the
best interests of the child are the overriding concern in the case of assigned
acquisition.

7.5.2. Automatic acquisition of parental responsibilities and rights at the birth of the
child

The law allocates parents to

the child at birth who then
will be regarded as the
legal parents of the child. In
terms of the Children’s Act,
only the biological
parents of the child can
automatically acquire
parental rights and
responsibilities of the child.
However, not all
biological parents
automatically acquire
parental responsibilities
and rights in respect to
the child as explained in paragraph (a) below. If the child is conceived artificially with
donor gametes, the position is more complicated as discussed in paragraph (b) below.

(a) Biological parents of the child

 (i) Mother: Section 19 of the Children’s Act

Except in the case of a surrogacy arrangement, a mother who gave birth to the
child will be regarded as the legal mother of the child. The birth-giving mother
will assume full parental responsibilities and rights in respect to her child at birth.
However, if the mother is a minor and unmarried, she is not competent to act as
the guardian of the child. In such a case, the mother’s guardian will be the
guardian of the child, until the mother gets married or reaches the age of majority,
whichever comes first. The mother in the meantime will have the care of (and contact
to) her child, even though she is still a minor. The guardian of the mother will
acquire guardianship only if the biological father of the child does not
already have guardianship in respect of the child.

1. Mother gives birth →

o Default: She is the legal mother with full parental rights.

o Exception: Surrogacy → She is not the legal mother.

2. If mother is a minor & unmarried →

o Not competent to act as guardian.

o Her guardian steps in as guardian of the child.

o Minor mother still has care + contact.

3. Guardian role shifts when →

o Mother marries, or

o Mother turns 18.

4. BUT

o Mother’s guardian only becomes guardian if the biological father does not
already have guardianship.

(ii) Father: Sections 20 and 21 of the Children’s Act

 If

married to the birth-giving mother, the husband of the mother will be presumed to be
the legal father of the child and assume full parental responsibilities and rights in
respect of the child. Although the presumption of paternity: pater est guem nupitae
demonstrant has not in express terms been incorporated in the Children’s Act, the
court in R v M recently held that it remains applicable until rebutted.

If the parents of the child are not married, the biological father of the child will
only be regarded as the legal father of the child if he satisfies the requirements in
terms of section 21 of the children’s act. Section 21 creates two possibilities for
such fathers to acquire parental responsibilities and rights automatically.

Option 1: If, at the time of birth of the child the father lived with the mother in a
permanent life partnership,

OR

Option 2: If the following three requirements are satisfied:

 The father is identified as the biological father of the child; and

  He contributes or has attempted in good faith to contribute to the child’s
upbringing for reasonable period; and
 He contributes or has attempted in good faith to contribute towards the
expenses in connection with the maintenance for a reasonable period.

If the biological father falls within the scope of either of these two options, the mother
and father of the child will have and share the same responsibilities and rights as
those that are vested and shared by parents in respect of a child born from a
formally recognised marriage. It is important to note that section 21 applies
regardless of whether the child was born before or after the commencement
of the Children’s Act. A father of a child born before this date will be deemed to
have acquired full parental rights and responsibilities as from the 1st July 2007 at
the earliest, because this is the date upon which this section came into operation.
The judiciary has given some but not adequate guidelines on how the requirements in
terms of section 21 should be interpreted.

Where a dispute arises as to whether the father has in fact acquired parental
responsibilities and rights in terms of section 21, the matter must first be referred
for mediation to a “family advocate, social worker, social service professional
or other suitably qualified person”. Only after the matter has been mediated can
an unsatisfied parent refer the outcome of the mediation to a court for review.

If the donor of the sperm used for the artificial conception of a child is the husband
of the child’s mother or satisfies the requirements of 21, he will also be
considered the legal father of the child.

A. Married to Mother?
→ Yes → Husband presumed legal father (pater est quem nuptiae demonstrant) → full
rights/responsibilities.
→ No → Must look at Section 21.

B. Section 21 Test (for unmarried fathers):

 Option 1 → Cohabiting in permanent life partnership at birth.

 Option 2 → Biological father + contributes to upbringing + contributes to

maintenance.
✅ If either satisfied → equal parental rights with mother.

C. Extra Rules:

 Applies before/after Children’s Act (but earliest from 1 July 2007).

 Disputes → mediation first → then court.

 Sperm donor → legal father if husband OR Section 21 satisfied

(b)Status of artificially conceived children: Section 40

Even if a woman gives birth to a child to whom she is not genetically related
because the child was artificially conceived with donor gametes, she will still
be regarded as the legal mother of the child. The spouse of the mother will be
regarded as the other legal parent of the artificially conceived child, provided the
mother and the spouse had consented to the artificial fertilisation.

The court in VVJ and Another v Minister of Social Development and Another
(2023) declared section 40 unconstitutional as the section was held to violate
artificially conceived children’s right to family and/or parental care and their
right to have their best interests considered of paramount importance. The
court found that the section not only violated the dignity and equality of the children
born of such artificial fertilisation but also the rights to dignity and equality of
parties in a permanent life partnership. The court ordered that the section be
read as including “or permanent life partner” after the word “spouse” and
“husband” wherever such words appear in section 40, directed that the section be
referred to parliament for reconsideration and that the definition of “parent” also
be reconsidered in view of the changes in society. In terms of this judgement an
informal life partner can now automatically acquire parental responsibilities
and rights in respect of artificially conceived children on the same basis as a
spouse (or civil union partner) of the mother who gave birth to the child.

The donor of the gametes used for the artificial fertilisation, however, incurs
no right, responsibility, duty or obligation in respect of the child born as a
result of the artificial fertilisation of the mother. Section 40(3) creates two exceptions
to this general rule: a donor may acquire responsibilities and rights if the donor (of
the egg used for the artificial conception) was the woman who gave birth to the
child, or the donor was the husband of such a woman at the time of the artificial
fertilisation.

A. Who is the Mother?

 Birth-giving woman = legal mother (even if donor gametes used).

B. Who is the Other Parent?

 If consented to artificial fertilisation:

 o Before 2023 → Only a spouse (husband/wife/civil union partner).

o After 2023 VVJ Case → Spouse or permanent life partner.

C. What about Donors?

 Default = no rights/responsibilities.

 Exceptions:

1. Egg donor who also gave birth.

2. Husband of the birth-giving woman at fertilisation.

✅ In short:

 Birth-giving mother = always the legal mother.

 Spouse or permanent life partner (post-2023) = other legal parent if

consented.

 Donor = no rights, unless falling under one of two narrow Section 40(3)
exceptions.

7.5.3. Assigned acquisition of parental responsibilities and rights:

Assigned acquisition of parental responsibilities and rights implies that the parent or
person who wishes to acquire parental responsibilities and rights must first prove that
it is in the best interests of the child. In terms of the Children’s Act, parental
responsibilities and rights may be assigned to a person in any of the following ways:

1. By means of a parental responsibilities and rights agreement; or

2. In terms of a court order.

1. Parental responsibilities and rights agreements: Section 22 of the Children’s Act

The Children’s Act, for the first time in our law, has now created a possibility of
conferring parental responsibilities and rights on a person by agreement. The mother
of the child, or any person who has parental responsibilities and right in respect of a
child, may enter into an agreement to confer parental responsibilities and rights on
another person. Parental responsibilities and rights may by agreement be conferred to
the biological father of the child or “any person having an interest in the
care, well-being and development of the child.”

A person may only confer by agreement upon another those parental

responsibilities and rights which the person has at the time of the
agreement. For example, an unmarried mother who is still a child will only be
competent to confer care and/or contact on another person in terms of the parental
responsibilities and rights agreement, because she herself is not vested in the
guardianship of the child.

The parental agreement must comply with certain formal requirements to

become effective. Before a parental responsibilities and rights agreement is
registered or made an order of the court, the family advocate or the court
concerned must first be satisfied that the parental responsibilities and
rights agreement is in the best interests of the child. The Children’s Act also
makes provision for the amendment and termination of parental responsibilities and
rights agreements.

2. Assignment in terms of a court order

The discussion under this paragraph is limited to the first assignment of parental
responsibilities and rights to a parent or person who has never had such
responsibilities and rights in respect of the child before. The reassignment of
parental responsibilities and rights already acquired previously will be considered
later.

The provisions of the Children’s Act do not affect the inherent power of the high
court as upper guardian of all minors to assign parental responsibilities and
rights. However, it can be safely assumed that applications of this nature will in future
probably be dealt with in terms of the express statutory jurisdiction conferred on the
courts by section 23 and 24 of the Children’s Act. Section 23 regulates the
assignment of contact and/or care and section 24 the assignment of
guardianship. Only the high court may consider an application relating to the
assignment of guardianship for a child. The legal position in relation to the right to be
made guardian is even more stringent requirements than rights of contact and care. If
the child already has a guardian, the applicant must submit reasons as to why the
child’s existing guardian is not suitable to have guardianship. According to the court in
RC v HC this is because the rights relate to milestone matters such as formal
consents necessary to achieve legality in relation to important aspects in
the child’s life- such as the change in status or his movement beyond the court’s
jurisdiction.

When considering an application for care, contact and or guardianship, the best
interests of the child are the court’s paramount concern. The court in QG and
Another v CS and Another held that even though a sperm donor does not
automatically acquire parental responsibilities and rights based on his genetic link,
nothing bars the court from assigning care and/or contact to a donor in
terms of section 23 if it is found to be in the best interests of the artificially
conceived child.

In the case of surrogacy and adoption the court assigns full parental rights
and responsibilities to the applicants. The procedure and consequences of
adoption and surrogacy are entirely regulated by statute in Chapters 15 and 19 of the
Children’s Act. Surrogacy and adoption are both very vast and specialised fields within
the law of parent and child and are therefore not dealt with in great detail in this
module.