Parental responsibility (original) (raw)
Related papers
Obiter, 2013
The Children's Act 38 of 2005 provides the legal basis for the reshaping of the exercise of parental responsibilities and rights. In previous case law the custody of a child was assigned to the parent who had been the primary caretaker during the subsistence of the marriage relationship, although the overriding factor remained the best interests of the child. This model has proved to be insufficient in order to promote the need for a child to be brought up in a stable family environment or, where this is not possible, in an environment that is as close as possible to a caring family environment; including the child's right to maintain close contact with both parents. Facing this shortfall, the legislature adopted a "parenting-plan" model in terms of the Children's Act, which attempts to help parents to set aside their differences and work out a plan which is in their child's best interests. The parenting plan further attempts to help parents in exercising their parental responsibilities and rights over their children. The purpose of this article is to analyse this legal solution in an effort to ascertain whether it really promotes the best interests of the child, namely, promoting his/her right of growing up in a close relationship with both parents.
De jure, 2024
The South African post-constitutional era gave rise to the reframing of what was previously referred to as parental authority to parental responsibilities and rights. Throughout these developments, the best interests of the child remained a constant consideration, resulting in a move away from a parent-centred approach to a child-centred approach. In line with this child-centred approach, modern South African law recognises that children have the right to family or parental care. Recognition is also given to the subsequent fundamental principle that parents and the family perform a central role in a child's care and protection. However, analogous to global trends South African family structures have transformed and are no longer typically nuclear, but are characterised by a diversity of parental, family and community-based forms of caregiving. Children accordingly find themselves being cared for by persons who are not their biological parents. In this regard the position of the "interested third party" or so-called "co-holder of parental responsibilities and rights" is gaining increasing relevance. Although the role of interested third parties is recognised in domestic law, in the Children's Act, some uncertainty about the right of these parties to obtain parental responsibilities and rights over a child prevails. One such aspect is the right of a former life-partner to obtain parental responsibilities and rights over a non-biological child upon the dissolution of a life-partner relationship. A recent High Court case, RC v SC 2022 4 SA 308 (GJ) and its appeal namely, RC v HSC 2023 4 SA 231 (GJ) to a full bench of the High Court provides valuable insight into this regard and specifically on the approach taken by the courts about an application for parental rights and responsibilities to a non-biological child by an interested third party in terms of the Children's Act. How to cite: Bekink 'The best interests of the child and the right of interested third parties to parental responsibilities and rights:
Journal of Child Custody, 2017
This is the second part of an article, Part 1 of which proposes the paradigm of parental responsibilities to replace the discourse of rights, custody, and visitation. This Part describes the scope of parental responsibilities; who, alongside or instead of the biological parents, may have parental responsibilities visà-vis the child; the roles of grandparents and members of the extended family, and partners of parents, are described. The principal categories of parenting tasks are described in detail. I also show how the concept of parental responsibilities is essential for properly dealing with children in need of protection, and how the paradigm applies to courts that deal with proceedings involving children.
SHARED PARENTAL RESPONSIBILITY : NEED OF THE HOUR
A parent is the most important person in the life of a child. The concept of who is a parent is a vast and subjective concept. In common parlance, a parent is the father or the mother of a child who takes care of the child, raises him / her up and provides him / her with love, care and affection. In the legal sense, the term parent may be interpreted in various ways. However, defining who is a parent becomes imperative in deciding the purview of parental responsibility and protecting the rights of a child as well. With the increase in the breakdown of marriages, joint family systems and the increased number of divorces, the worst impact falls on the children. The concept of parental responsibility has acquired importance in this background and there is a need to enact a suitable legislation and / or amend the existing laws which govern the custody and guardianship matters to fill the vacuum created in the society and must provide new norms towards shared parental responsibility. In light of the present situation where there is no extended family support for child care anymore; having a legal framework defining the roles and responsibilities of parents is essential to safeguard the welfare principle and the interests of the children.
Family Law, 2021
Parental and responsibilities can be defined as the rights pf a parent act on behalf of their child. Children’s Act 38 of 2005 particularly the prescription of section 7, prescribes that, it is the duty to provide care, contact and guardianship to the child. Mothers possesses an automatic parental responsibility but the scenario changes when it comes to fathers, particularly the unmarried fathers. The unmarried fathers must meet the requirements provided for in Section 21 of the Act for them to attain parental rights. Grandparents’ rights and responsibilities are not expressly given by the Act, but they can fit under section 23 and 24, where any care givers can acquire guardianship if they meet the criteria. More so, according to Section 28 of the constitution the child has a right to family care which is beyond just the father and mother. It should be known that any decision made in line of this, should be in the best interests of the child. Parental rights can be limited since there is no absolute right and the limitation is applied if it is in the best interest of the child even though the best interest of the child is also not absolute and can be limited.
Parental Responsibility and Child Autonomy: Interdependent or Incompatible
In his dictum within the case of Hewer v Bryant , Lord Denning stated that the law surrounding children’s rights “can, and should, keep pace with the time ”. Denning criticised the late Victorian era case of Re Agar-Ellis where it was held that a parent’s absolute authority over their children continued unabated until the age of majority. These comments resurfaced in the prominent case of Gillick where the House of Lords established that a child’s capacity to make important medical decisions depended not on a legally set age but rather their individual level of maturity and understanding. This essay argues that post Hewer, Gillick and the implementation of the Human Rights Act , the UK has seen an increasingly contentious relationship between the concepts of parental responsibility and child autonomy at law. It is contended that the concepts are not inter-dependent but rather exist theoretically and practically opposed as competing and contextually qualified interests. This will be contended on the basis that the rights inherent within parental responsibility naturally conflict with a full conception of autonomy and represent instead a publicly endorsed paternalism toward children. Further, it is argued that both concepts are often used as judicial rhetoric in combination with the ‘welfare principle’ in order to impose judicial, value based, policy judgements; a precarious practice. It will be shown this is most apparent in the logically incoherent concept of ‘Gillick competency’ in relation to refusal of treatment.
Equal Shared Parental Responsibility and Children's Rights in Australia
UNSW Law Society Court of Conscience, 2020
The United Nations Convention on the Rights of the Child (‘CRC’) has made it unequivocally clear that promoting the best interests of the child should be a primary consideration in decision-making regarding the wellbeing of children. Australia has arguably gone further by making the best interests of the child as the paramount consideration under s 60CA of the Family Law Act 1975 (Cth) (‘FLA’). However, the idea of promoting the best interests of the child is a contested field which varies based on culture and values. In Australia, the paramountcy principle is statutorily understood to mean that the best interests of the child are promoted by a legal presumption of equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence. This article shall explore the rise of parental responsibility in Australia, particularly the presumption of equal shared parental responsibility and children’s rights.