Parental rights and responsibilities: all or nothing?

In the case of GM v KI 2015 (3) SA 62 (GJ) E the facts were as follows: the parents of the minor child were not married. A year after the child’s birth the father abandoned the child and the mother. The mother brought an application requesting the court to dispense with the father’s rights but retaining his responsibilities. The judge refused and stated that: “parental rights and responsibilities exist concomitantly”. His other reason for refusal is that the Children’s Act did not clearly separate between rights and responsibilities.

The order that the mother asked for, amounted to a punishment of the father. The judge was not willing to do that. It seems that it is all or nothing when it comes to parental rights and responsibilities.

The judge also explained: “Section 18 represents a partial codification and recasting of the common-law concept of ‘parental power’ or ‘parental authority. Such concept amounts to a conglomeration of rights and obligations that flow naturally from the state of being a parent.’

Previously this was taken for granted in the common law, but the Children’s Act has now set it out more clearly in Section 18.

Section 18 of the Children’s Act 38 of 2005 contains the principles of care, contact and guardianship of children.

(1) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right–

  • to care for the child;
  • to maintain contact with the child;
  • to act as guardian of the child; and
  • to contribute to the maintenance of the child.

In other words: being a parent automatically gave you rights and obligations over your child.

In other words, parental responsibilities include the obligation to care for the child, maintain the child and to act as the child’s guardian. Parental rights in respect of a child include the right to have contact with the child.

“Guardian” is a key term that means: an obligation to consent to the child’s marriage, adoption, departure from South Africa, application for a passport, administering a child’s immovable property and/or representing a child in legal or administrative matters.

Leave a Reply