The New Childrens’s Act and new trends in the children’s courts

Introduction

As we are all aware, many things have changed with the inception of the new
Children’s Act 38 of 2005. The Act aims to give rights and responsibilities to both
biological parents of a child and to institute clearly defined decision making rights of
each parent. The one thing that has not changed is that the over encompassing
yardstick to decide on the rights of a parent with regard to a child is still “the best
interest of the child” which is clearly defined for the first time in S7 of the Act. In this
article I will deal with exactly what “the best interest of the child entails as well as the
new terminology for “custody” and “access” in the new act.

“Custody” – now defined as “primary residence” and “parental responsibilities and

rights”

The new Children’s Act aims to bring equality to a parenting relationship were a child
lives with one parents and the other parent also wishes to exercise his/her parental
rights and responsibilities. These rights and responsibilities are contained in Chapter
3 of the Act. According to this chapter the biological mother has full rights and
responsibilities of a child (S19) but the biological father can also claim these rights if
he was married to the mother either at the child’s conception or birth (S20).
Unmarried fathers can also acquire these rights if he is living with the child’s mother
at time of birth or if he has made attempts to maintain the child or contribute to its
upbringing (S21).

The aim is that both parents are co-holders of parental responsibilities and rights (as
envisaged in S30 of the Act) and that they exercise these rights together and consult
with the other co-holder before making major decisions involving the child (as stated
in S31). The parent with which the child stays therefore is only the holder of the
“primary residence” of the child and must take charge of a child’s day to day
wellbeing.

“Access” – now defined as “contact”

The term contact is defined in S1 of the act as maintaining a personal relationship

with a child an if a child is living with someone else regular communication with a
child whether via physical visits or through communication otherwise. Contact can be
restricted by a court if it is in the best interest of a child to do so and a court can set
out specific requirements regarding contact.

The best interest of the child

S9 of the Act states that the best interest of a child is paramount and in all matters
concerning the care, protection and well-being of a child the standard that the child’s
best interest is of paramount interest must be applied.
 According to S7 of the Children’s Act the court must take the following factors into
account when assessing the best interest of a child:
a) the relationship between parent and child
b) the attitude of the parents towards the child
c) the capacity of a parent to provide for the needs of the child
d) the likely effect on the child of any change in circumstances
e) practical difficulty and expense of a child having contact with a parent
f) the need for the child to remain in the care of the parent
g) family violence and the child
h) avoid or minimize further legal or administrative proceedings in relation to the
child.

Before the promulgation of this act it was not clear which factors could be taken into
account. The courts used look at for example: “ the love and affection and other
emotional ties which exists between the parent and the child and the parent’s
compatibility with the child” (Mc Call v Mc Call (3) SA 201 (C) at 204I) ; “which of
the parents was better able to promote and ensure the child’s physical, moral
emotional and physical welfare” (Soller NO v G and Another 2003 (5) SA 430 (W) at
par 54 – 55 445H-J) etc. These common law factors would differ from case to case
and there was no clear indication of exactly what the “best interest of the child”
meant or how the factors were to be considered.

The court now has a list of statutory requirements that it has to take into account as a
starting point when considering if the care and contact of a child is in the child’s best
interest. The courts are however not bound to it as the court found in J v J 2008 (6)
SA 30 (C) at par 20 37D – 38A that the court is empowered to consider and evaluate
all the relevant facts placed before it with a view of deciding what the best interest of
a child is. It is not bound by procedural structures and should “not be mechanically
sacrificed on the altar of jurisdictional formalism”. The court therefore still has a
discretion in deciding on what the best interest of the child is and will exercise its
discretion without being hindered by the legislation as set out in S7.

Conclusion

To my mind the new Children’s Act is an optimistic piece of legislation that tries to even
out the playing field of both parents of a child. The reality is that the implementation of
these principles are very problematic in that the courts and especially the family
advocates are now heavily involved in every aspect of the children’s lives and the
exercise of a parents rights. In an ideal world both parents would want to love, nurture
and care for their children and want to exercise their parental responsibilities selflessly
without spite or violence towards a child. In the modern South African society the reality
is, however, slightly different. When parents are not in a loving relationship with each
other the child usually becomes a tool or a burden. It is therefore my submission that the
legislation is the ideal and not the reality and changes will have to give effect to the
reality of modern society and family structures.