Access to his children – A father’s right

Section 28(1)(b) of the Constitution of the Republic of South Africa guarantees that :

“Every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment”.

The Children’s Act 38 of 2005 (herein referred to as the Children’s Act) has been promulgated to improve and define the rights of children in line with our country’s Constitution. According to Section 18(1) of the Children’s Act, ”A person may have either full or specific parental responsibilities and rights in respect of a child.

In legal terms, “full parental responsibilities and rights” refers to the responsibility and 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.

A father has the same rights and responsibilities as the biological mother of a child, provided that he is married or was married to the child’s mother, at the time of the child’s conception, or at the time of the child’s birth or anytime between the child’s conception and birth.

In instances where the father does not meet one of abovementioned requirements, Section 21 of the Children’s Act provides that: “The biological father of a child can also acquire full parental responsibilities and rights in respect of the child –

  • if at the time of the child’s birth he is living with the mother in a permanent life-partnership;
  • if he, regardless of whether he has lived or is living with the mother –
    • consents to be identified or successfully applies in terms of Section 26 to be identified as the child’s father or pays damages in terms of customary law.
    • contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
    • contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

This basically means that the relationship status of the biological parents is of no relevance in instances where the parents have automatically acquired full parental rights and responsibilities in terms of the Children’s Act, as both parents are responsible for that child, unless a court orders otherwise.

In cases where a dispute arises between the biological parents, regarding the parental rights and responsibilities, the matter is referred for mediation, of which in most cases, is to a family advocate. The Family Advocate will evaluate the parties’ background and circumstances in light of the best interests of the child and will make a recommendation to the Court. The outcome of such mediation proceedings is not final and parties may still approach a court to enforce their rights or clarify their position.

It is evident that the new Children’s Act does indeed provide some protection and also secures the rights of fathers and children in a more adequate way as compared to the old dispensation. It is also important that both parents familiarise themselves with the basics, pertaining to rights and obligations, which could one day assist them, as the Children’s Act defines parental responsibilities and rights.

If you have any further queries, please do not hesitate to contact our family law department.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.  Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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