Our practice
When children’s rights take center stage in parents’ daily lives, ensuring the protection of these rights becomes paramount. Our department, guided by the Children’s Act, provides a comprehensive framework for understanding these rights and responsibilities. We address situations where parents, even if not married, share custody of their child or children. Our team ensures the enforcement and court-mandated implementation of a parenting plan, which serves as a legal order. In cases where a parent fails to adhere to this court-ordered parenting plan, consequences are enforced to safeguard the child’s well-being.
Transition to Parental Responsibilities and Rights:
In line with South Africa’s Children’s Act 38 of 2005, the previously used terms “custody and access” have been replaced with a more inclusive terminology: “parental responsibilities and rights.” This new terminology encompasses the duty to provide care for the children and the obligation and entitlement to maintain contact with them.
In situations where parents are not married, issues regarding parental responsibilities and rights may arise. An agreement outlining these responsibilities and rights can be established, provided that the procedures outlined in the Act are followed.
If disputes arise regarding the execution of the agreed parental responsibilities and rights, parents can collaboratively or with the assistance of the family advocate create a parenting plan. This plan is intended to clarify each parent’s responsibilities and rights. For legal recognition, the parenting plan must be registered with the family advocate and/or sanctioned by the court.
Parental Responsibilities and Rights Agreements:
Sections 19 and 20 of the Act affirm that both parents share equal responsibilities and rights concerning their children. Even after separation or divorce, both parents maintain the capacity to care for their children.
However, a scenario may arise where the parents were never married, and a question of paternity emerges, leading to a dispute over parental responsibilities and rights.
Section 22(1) of the Act allows the mother of a child or another person with parental responsibilities and rights to enter into an agreement with either the biological father (who lacks such rights and responsibilities) or any other person interested in the child’s care, well-being, and development, according to the terms set in the agreement.
Section 22(2) specifies that the mother or another person can only confer those parental responsibilities and rights that they possess at the time the agreement is made. Section 22(3) mandates that the agreement must adhere to a prescribed format and contain specific details, while Section 22(4) states that a Parental Responsibilities and Rights (PRR) agreement will only take effect if registered with the family advocate or sanctioned by the relevant court.
If parties finalize a PRR agreement without the involvement of a family advocate, social worker, or psychologist, the PRR agreement will not become effective until it is registered with the family advocate or approved by the High Court, a divorce court, or a children’s court, upon application by the concerned parties.
Before registration or court approval, Section 22(5) requires that the family advocate or the court must be convinced that the agreement serves the child’s best interests.