Parental Responsibilities and Rights in South Africa

The Children’s Act 38 of 2005 uses the phrase “parental responsibilities and rights” (often shortened to PRRs) to describe the legal relationship between a parent and a child. These are set out in sections 18 to 21 of the Act and always operate subject to the best interests of the child.

What PRRs include

• Care — providing a suitable home, daily needs and a safe environment.
• Contact — maintaining a personal relationship with the child.
• Guardianship — administering the child’s legal affairs and property, and consenting to major decisions such as marriage or a passport.
• Maintenance — contributing financially to the child’s upbringing.

Married parents

Parents who are married to each other automatically have full parental responsibilities and rights in respect of their child. This continues even after divorce, although a court may regulate how care and contact are exercised.

Mothers

The biological mother of a child, whether married or not, automatically has full parental responsibilities and rights.

Unmarried fathers

Section 21 of the Children’s Act allows an unmarried father to acquire full parental responsibilities and rights if he was living with the mother in a permanent life-partnership at the time of the birth, or if he has consented to be identified as the father, contributes or attempts to contribute to the child’s upbringing, and contributes to maintenance. He need not be married to the mother to qualify.

Resolving disputes

If parents disagree about whether a father meets the section 21 requirements, the matter can be referred for mediation to the Family Advocate or a social worker. If mediation fails, a court decides. Parents can also apply to a court to acquire, vary or, in serious cases, terminate parental responsibilities and rights.

Understanding who holds parental responsibilities and rights is often the starting point in family disputes, maintenance claims and relocation matters. Where the position is unclear, legal advice can clarify each parent’s standing before any court application is made.