The Nursery

The concept

The Children's Act 38 of 2005 replaced the old language of "parental authority/custody/access" with parental responsibilities and rights (PRR). Section 18 identifies four components a holder may have in respect of a child.

The four components

• Care — the day-to-day care of the child: a safe home, food, education, guidance and general well-being (replaces "custody")
• Contact — maintaining a personal relationship with the child, including visits and communication (replaces "access")
• Guardianship — administering the child's property and legal affairs, and giving consent to major acts (marriage, adoption, passport, leaving the country, litigation)
• Maintenance — contributing to the child's support

Full or specific

A person may hold full PRR or only specific responsibilities and rights. Guardianship consent for the most serious acts (e.g. marriage, adoption, removal from the country) generally requires the consent of all guardians.

The biological mother (s 19)

The biological mother of a child — whether married or unmarried — always has full parental responsibilities and rights.

The married father (s 20)

The biological father who is married to the mother (at conception, at birth, or between) has full PRR.

The unmarried father (s 21)

An unmarried father acquires full PRR if, at the time of the birth, he was living with the mother in a permanent life-partnership; or, regardless of whether he ever lived with her, if he
(a) consents to be identified as the father (or applies for a paternity order/pays damages under customary law),
(b) contributes or attempts in good faith to contribute to the child's upbringing, and
(c) contributes to the child's maintenance for a reasonable period.

Disputes & agreements

Disputes about whether s 21 is met are referred for mediation (e.g. to the Family Advocate). Holders of PRR may also make parental responsibilities and rights agreements (s 22), and others may acquire PRR by court order (s 23–24).

Paramountcy

In every matter concerning a child, the child's best interests are of paramount importance — s 28(2) of the Constitution and s 9 of the Children's Act. It is the golden thread running through all decisions about care, contact, guardianship, relocation and maintenance.

The s 7 factors — how courts weigh them

Section 7 of the Children's Act provides a non-exhaustive checklist: the nature of the child's relationships with parents/caregivers; the capacity of each parent to meet the child's emotional, intellectual and physical needs; the likely effect of any change in circumstances (courts prefer stability); the child's age, maturity and stage of development; any relevant characteristics (cultural, religious background); the need to protect from harm (history of violence or substance abuse); and any other relevant factor. The factors are weighed, not merely listed — greater financial capacity does not override a history of violence; an older child's preference carries more weight than an infant's.

The child's voice (s 10) — a genuine tension

Section 10 grants a child of sufficient age, maturity and development the right to participate in matters affecting them and to have their views given due consideration — not an unconditional veto. The Family Advocate typically interviews the child in a safe environment. This creates a tension with s 9 (best interests paramount): a teenager's preference to avoid contact with a disciplinarian parent must be considered, but the court does not abdicate its duty — it must distinguish a trivial discomfort from a genuine welfare concern.

The duty of support

Both parents (and, in some circumstances, other relatives) owe a child a duty of support according to their respective means and the child's needs — irrespective of whether the parents are married, divorced or never married. The duty exists at common law and is enforced through the Maintenance Act 99 of 1998 and the maintenance courts.

How it is enforced

A caregiver may approach the maintenance court for a maintenance order; the court investigates the parties' means and needs and makes an order, which can be enforced (e.g. by emoluments attachment). The duty may continue beyond 18 while the child is a dependent (e.g. a student).

The pro-rata formula

Each parent contributes to the child's costs in proportion to their respective means. Step 1: calculate the child's total monthly needs. Step 2: determine each parent's disposable income and the combined total. Step 3: divide — a parent earning 2/3 of the combined income pays 2/3 of the child's costs. Example: child costs R 6 000/month; parent A earns R 20 000, parent B earns R 10 000 (combined R 30 000). Parent A pays R 4 000 (2/3); parent B meets R 2 000 (1/3) directly through care or in-kind. The formula applies regardless of who is the primary caregiver.

Who the Family Advocate is

The Office of the Family Advocate was established by the Mediation in Certain Divorce Matters Act 24 of 1987 and significantly expanded by the Children's Act 38 of 2005. The Family Advocate is a state official in the Department of Justice who acts as a neutral investigator and adviser to the court — not an attorney for either parent, and not the same as a curator ad litem (who represents the child directly as a party in proceedings).

Role 1: Section 21(3) mediation

When an unmarried father believes he has acquired full PRR under s 21 but the mother disputes this, the parties must first attend mediation with the Family Advocate (or another qualified mediator) before approaching a court. The goal is to agree on a parenting plan — a document setting out who the child lives with, when and how contact takes place, and how guardianship decisions are made. Once agreed, the parenting plan may be registered or made an order of court.

Role 2: Court investigations and reports

In any family litigation involving children, the court may request the Family Advocate to investigate the family situation — interviewing the parents, caregivers and the child — and to produce a written report recommending what arrangements best serve the child's interests. The court weighs this report but is not bound by it.

Role 3: The voice of the child

The Family Advocate is typically the official who interviews the child in a safe, child-friendly environment, allowing the child to express their views without pressure from either parent. This gives effect to the participation right under s 10 of the Children's Act — ensuring the child's voice is heard in the best-interests enquiry without exposing the child to adversarial proceedings.

Parenting plans — s 33 and enforcement

Co-holders of PRR are encouraged to conclude a written parenting plan under s 33 of the Children's Act — a detailed agreement covering Care (primary residence), Contact (visits and schedule), Guardianship decisions (schooling, religion, medical), and Maintenance. Under s 34, the plan can be registered with the Family Advocate or made an order of court, making it legally binding. Section 35 criminalises wilful refusal to allow contact in terms of the plan — breach exposes the offending party to contempt of court or criminal prosecution. The Family Advocate must also endorse the settlement agreement in a divorce involving minor children before a divorce decree is granted.