Acquisition of parental responsibilities and rights

Abstract

The thesis explores the impact of the new Children’s Act 38 of 2005 on the acquisition of parental responsibilities and rights within a newly proposed framework designed for the purpose of reflecting the various ways in which parental responsibilities and rights can be acquired. The research has shown that the Children’s Act has fundamentally transformed the way in which parental responsibilities and rights are acquired. The transformation has created a scheme for the acquisition of parental responsibilities and rights that is for the most part constitutionally compliant and progressive insofar as it gives recognition to the different family forms found in South Africa. To this end the Children’s Act has considerably expanded the ways in which parental responsibilities and rights can be acquired. Whereas previously exclusively the preserve of heterosexual married parents in a nuclear family, parental responsibilities and rights can now automatically be acquired by a committed biological father and a married lesbian couple conceiving by artificial means. Apart from authorising courts to assign parental responsibilities and rights, the Children’s Act allows any holder of parental responsibilities and rights to confer responsibilities and rights on another by prior approved agreement. The Act also includes specific provisions to regulate the acquisition of parental responsibilities and rights by commissioning parents in the case of a surrogate motherhood agreement. The structure developed for the research topic reflects the transformation of the law in this regard by making the application of the best interests-standard, rather than the marital status of the child’s parents, the distinguishing feature of the subdivision between automatic and assigned acquisition. In this way the structure is an embodiment of the paramountcy of the best interests principle in section 28(2) of the Constitution. Insofar as the law still requires a distinction to be made between biological mothers and fathers, on the one hand, and naturally and artificially conceived children, on the other, the structure also highlights the remaining shortcomings of the law in this regard. The structure is, furthermore, necessarily complicated by the need to distinguish between the acquisition of care, on the one hand, and guardianship, on the other. As far as fathers are still not treated the same as mothers in the automatic allocation of parental responsibilities and rights, the Act is deemed not to have been progressive enough. Conferring full parental responsibilities and rights on both parents based on their biological link to the child would not only be in line with worldwide trends, but would also meet the constitutional demands of substantive sex and gender equality. It will further place the focus on the best interests of the child, which emphasises the importance of both parents for the child. While the research shows that tensions between the biological and social constructs of parenthood may possibly hamper the legal recognition of de facto care-givers or other persons with whom the child has developed a psychological bond, the greatest weakness of the Act would seem to lie in the failure to implement an integrated family court structure. Please cite as follows: Louw, AS 2009, Acquisition of parental responsibilities and rights, PhD thesis, University of Pretoria, Pretoria, viewedyymmdd < http://upetd.up.ac.za/thesis/available/etd-09102009-170707/ > Copyright