Michele Uys
8 May 2018

A typical scenario can be outlined as follows:

“Dad is mentally ill and resides in a mental institution whilst mom is nowhere to be found and her last whereabouts unknown. Will granny and grandad be able to obtain full parental responsibility and rights over me when my parents decide to get divorced? Gran and grandad are already taking such good care of me and attending all my parent-teacher conferences”. 

What happens to your minor child when you and your spouse decide to separate after several attempts to reconcile? Are you capable of raising your minor child alone? What if you aren’t in good health and think it may be in the best interest of your minor child to stay in the care of another family member?

This short article will briefly outline the process of dealing with personal circumstances akin to the scenario’s above.
Chapter 3 of the Children’s Act No. 38 of 2005 (“the Act”) deals specifically with parental responsibilities and rights and governs the laws relating to care, contact and protection of children. It defines parental responsibilities and rights in detail and makes provision for the establishment of Children’s Courts (although the High Court is seen as the upper guardian) and the appointment of welfare (social workers and child care expert) officers. In all cases the general rule and guiding principle is ‘the best interests of the child shall be the primary consideration and are of paramount importance in every matter concerning the child’.

The guiding principle has furthermore been enshrined in the United Nations Convention on the Rights of the Child (“CRC”), read together with three additional pillars of parallel importance namely, non-discrimination, the survival and development of the child and child participation set out in Article 2, 6 and 12 pf the CRC. The Convention provides for “recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”.

Whether mom and dad obtain their decree of divorce by settlement or brawl, assigning their parental responsibilities and rights to another party, namely an interested party, requires certain formalities to be met but is not as complex as one would assume.

Section 22 of the Act states that mom and dad, or any other person who has parental responsibilities and rights in respect of your minor child may enter a settlement agreement, providing for the procurement of such parental responsibilities and rights in respect of the minor child as are set out in the settlement agreement, with any other person having an interest in the care, well-being and development of the child. Before registering a parental responsibilities and rights settlement agreement or before making such an agreement an order of court, both the family advocate and the court concerned must be satisfied that the parental responsibilities and rights settlement agreement is undeniably in the best interests of the minor child.

The settlement agreement as pertains to your minor child should be regarded as separate to your divorce settlement. It is however possible to lodge an application dealing with both issues on the same day. As mentioned previously, the High Court acts as the upper guardian of all minor children and will be reluctant to grant you a decree of divorce without being fully satisfied that the best interests of your minor child have been cared for.

Before separating it is imperative to assess your personal circumstances and to reassess the relationship your minor child has with the interested party. It is possible to give your child the best possible life filled with an atmosphere of happiness, love and understanding.