Guardianship – Rights, and Responsibilities

Guardianship is a fundamental aspect of family law. A guardian is not only a person who cares for someone else but also one who attends to legal and administrative matters. For example, in relation to a child, a guardian would be the one who has to provide consent for the application of a passport or to leave the Republic. Then there are various other aspects. For example, should a child wish to enter into a contract, or purchase a house, then the guardian would need to assist. And lastly, but not least, should the child need to undergo a medical procedure, the guardian’s consent is required. The High Court, on the other hand, is the upper guardian of all minor children. Therefore, it can override the decision of parents in relation to minor children in relation to consent.

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This website, therefore, deals with a few practical aspects of guardianship rights. This includes the following:
1. Confirming guardianship – An application to the court in a custody dispute where the court confirms guardianship of unmarried parents;
2. Assigning guardianship – An application to the court for the appointment of an interested third party as a guardian over a minor child;
3. Consent for a Passport – An application to the court for the consent of a passport where a parent refuses to give consent; and
4. Consent for leaving the Republic or relocating – An application to court where the consent for the minor child to leave the Republic or to relocate with a parent is refused.

 

Guardianship regarding minor children – The Law

Section 18 of the Children’s Act 38 of 2005, deals with the issue of guardianship in relation to minor children. Before we unpack the law, let us first quote the entire section. You may also want to look at the Guardianship Act 192 of 1993. However, it basically repeats what is stated in the sections below.

Section 18 of the Children’s Act 38 of 2005

Parental responsibilities and rights.—
(1) A person may have either full or specific parental responsibilities and rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right—
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.
(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must—
(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 any consent required by law in respect of the child, including—
(i) consent to the child’s marriage;
(ii) consent to the child’s adoption;
(iii) consent to the child’s departure or removal from the Republic;
(iv) consent to the child’s application for a passport; and
(v) consent to the alienation or encumbrance of any immovable property of the child.
(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.
(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c).

Administer and safeguard the child’s property and property interests

The first duty the Children’s Act places on a parent is to administer and safeguard the child’s property and property interests. This is a very broad duty, but it, in essence, means that the parent, or parents, as the case may be must ensure that the child’s property is protected. So for example, if the child owns money, and wants to purchase a useless toy, the guardian should ensure that the child’s money is not wasted by purchasing that toy. The same way, if the child received money as a gift, his or her guardian should ensure the money is well protected. This can be done by placing the money into a bank account or investing it.

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Assist or represent the child in administrative, contractual and other legal matters

The second aspect the Children’s Act enforces a guardian to do is to assist or represent the child in administrative, contractual and other legal matters. So if the child wants to enter into a business arrangement, the guardian should assist. For example, if the child is good at sport and wishes to enter into a sports contract, the guardian should assist the child. Should the child been in an accident and suffered damages, the guardian should represent the child in the court case.

Another example would be a claim against the Road Accident Fund. A further common example is a case of claiming child maintenance. It is the parent, who appears in court when it comes to a child maintenance issue.

Give or refuse any consent required by law in respect of the child

The Children’s Act specifically states what consent is required from a guardian in relation to a minor child. It states that it is required for the following:

(i) consent to the child’s marriage;
(ii) consent to the child’s adoption;
(iii) consent to the child’s departure or removal from the Republic;
(iv) consent to the child’s application for a passport; and
(v) consent to the alienation or encumbrance of any immovable property of the child.

As one can see, those are important aspects of a child’s life. Therefore consent to the child’s marriage and consent to the child’s adoption are fundamental aspects to a child’s life. The child cannot himself or herself consent in this regard. The guardian has to give consent.

Then there are the other aspects, which is the subject of much court visits. That is consent to the child’s departure or removal from the Republic and consent to the child’s application for a passport. For this, both parents who are guardians need to consent. However, this becomes a problem when one parent wants to take the child overseas and requires a passport and the other refuses to consent. In such a case, the parent would need to approach the High Court.

And lastly, consent to the alienation or encumbrance of any immovable property of the child. What the law says, is that if a child wants to sell immovable property like a house, or have it bonded, the guardian’s consent is required. At the same time, the High Court’s consent is also required.

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