In terms of the Children’s Act of 2005 guardianship is defined is in the narrower sense being the parents’ control and administration of the child estate and capacity to assist or represent the child in legal proceedings.
Section 18(3) of the Children’s Act 2005 defines guardianship as follows:
“(a) administer and safeguard the child’s property and property interests;
(b) assist or represent the child in administrative, contractual and other legal matters; or
(c) give or refuse consent required by law in respect of the child including-
- consent to the child’s marriage;
- consent to the child’s adoption;
- consent to the child’s departure or removal from the Republic;
- consent to the child’s application for passport; and
- consent to the alienation or encumbrance of any immovable property of the child.”
In terms of the children’s Act each guardian may independently and without the consent of the other guardian exercise any rights or perform any duties arising from guardianship. However joint consent of the guardians is required in respect of:
- the marriage of the minor child;
- the adoption of the child;
- the removal of the child from the Republic of South Africa;
- application for passport on behalf of the child; and
- the alienation and encumbrance of any immovable property of the child.
It is important to note that it is very rare that a Court will wholly displace a parent’s guardianship in favour of a non-parent or one parent over the other. Thus in granting a decree of divorce, the courts will be reluctant to interfere with the equal status of joint guardianship however may, where appropriate, make an order of single guardianship, joint guardianship or sole guardianship.
The Children’s Act of 2005 has substituted the word ‘custody’ with the word ‘care’. The word ‘care’ has a much more extensive definition than a common law definition of custody. The new definition was implemented in terms of the recommendations of the South African Law Reform Commission.
Section 1 of the Children’s Act defines states that ‘care’, in relation to a child, includes, where appropriate-
“(a) within available means, providing the child with-
- a suitable place to live;
- living conditions that are conducive to the child’s health, well-being and development; and
- the necessary financial support;
(b) safeguarding and promoting the well-being of the child;
(c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
(d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;
(e) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;
(f) guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
(g) guiding the behaviour of the child in a humane manner;
(h) maintaining a sound relationship with the child;
(i) accommodating any special needs that the child may have; and
(j) generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child;”
Custody is related to the control and supervision of the daily life of the child. The custodian parent was empowered to control and make decisions in terms of the child’s day to day activities including educational decisions, medical decisions and religious education. The custodian parent enjoyed a broad discretion to act.
In the past the courts tended to prefer custody to remain with one parent however recently in view of the children’s rights in terms of the Bill of Rights and the Children’s Act it is uncommon for court to prefer one parent over the other unless exceptional circumstances exist. The court may award care, sole care or joint care to either or both parents as the case may be.
Traditionally care of young children and daughters of all ages was awarded to the mother, unless exceptional circumstances dictated otherwise. Today, it is accepted that neither parent is inherently more suitable custodian by reason of his or her gender. It must however be noted that a child’s mother may be favoured in cases where the court recognises that both parents are equally able to fulfil the role.
The High Court may in divorce proceedings or on application grant sole care to either parent. Sole care is often granted together with sole guardianship. Since an order of sole care severely curtails the powers of the non-custodian parent it is granted sparingly and only in the most extreme cases.
An order for joint care has the effect of vesting control over the child’s daily life and person in both parents and has the advantage of restraining either parent from assuming a dominant role in the child’s upbringing.
It has been found by the courts that an order for joint care helps to ensure that both parents continue to provide for their children, promotes the children’s rights by allowing more contact with both parents and promotes the equality between the parties.
It is important to note that joint care requires a large measure of cooperation and compatibility between the parents notwithstanding that their relationship has ended.
A contact order or a right to contact entitles a parent to see, spend time with or otherwise communicate with the child over which he does not have care.
The Children’s Act of 2005 states that ‘contact’, in relation to a child, means-
(a) maintaining a personal relationship with the child; and
(b) if the child lives with someone else-
(i) communication on a regular basis with the child in person, including-
(aa) visiting the child; or
(bb) being visited by the child; or
(ii) communication on a regular basis with the child in any other manner, including-
(aa) through the post; or
(bb) by telephone or any other form of electronic communication;
Where parents do not live together, contact serves to promote continuing parental relationship between the non-custodian parent and his or her child. The right to contact vests in the child since the child’s welfare is usually best promoted by contact with the non-custodian parent.
A court granting a decree of divorce will make an order with regards to contact with the child of the marriage.
It is important to note that the court may grant contact by someone other than the child’s parents for example grandparents, cousins or step-siblings on the condition that such contact is in the child’s best interest.