1. The Diversity of Family Forms in South Africa

1.1 Current South African law and practice
South African law has no single definition of a `family'. Different pieces of legislation recognise individual relationships for particular purposes. It is, however, abundantly clear that the `traditional nuclear family form', based on the relationship of a married man and woman and their biological or adopted children, does not reflect the reality of South African society.

National surveys have illustrated that responsibility for a child is by no means synonymous with biological parenthood. So, for example, according to the October household survey of 1996, weighted to reflect the 1996 census results, the household location of children under seven years of age was as follows:

Other studies have indicated that prevalent family forms other than nuclear families include the following:

× three generational female-headed household, including the grandmother (while the male is often absent or `non-existent') - often several families share the home and care of the children;

× two generational female-headed household with a breadwinner in the 30 to 45-year category, and school-going or unemployed children;

× two generational female-headed household with absentee middle generation;

× two or three generational families with male heads.
This diversity of family forms is not unique to South Africa or even to the African continent, but is increasingly encountered throughout the world. Rising divorce rates and an increase in the number of children born out of wedlock have resulted in a growing number of children living in single-parent households or with one biological parent (usually the mother) and another person who is either married to that parent (a step-parent) or cohabiting with him or her. In addition, in South Africa, apartheid policies such as the migrant labour system and influx control measures had a devastating effect on family life, particularly as regards African families, resulting in the emergence of many `social families', viz. family units in which children are brought up wholly or partly by persons who are not biological or legal parents, including relatives such as grandparents, and other persons who are not related to the child in question.

The UN Convention on the Rights of the Child recognises the fact that there is a broad range of persons who may take responsibility for children. In terms of article 5, States Parties are obliged to respect `the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention'. This article thus provides the Convention with a broad and flexible definition of `family', reflecting the wide variety of kinship and community arrangements in which children are brought up around the world. The importance of the family is emphasised in the Preamble to the Convention: `. . . the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance, so that it can fully assume its responsibilities in the community', and `. . . 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'.

Recent legislative developments in South Africa have given some recognition to the reality of different `family' structures in this country. Probably the best example of this is the introduction of the new child support grant to replace the state maintenance grant (which is being phased out over a three-year period). In terms of the amendments made to the Social Assistance Act 59 of 1992 by the Welfare Laws Amendment Act 106 of 1997, the child support grant (R100 per month) is available for children under the age of 7 years who live in households with an income of below R9 600 per annum or R13 200 per annum if the child and his or her primary caregiver either live in a rural area or in an informal dwelling. The grant is payable to the child's `primary care giver', defined as `a person, whether or not related to the child, who takes primary responsibility for meeting the daily care needs of the child in question'. Despite the numerous bureaucratic difficulties that have reportedly been encountered in the administration of the child support grant, the legislative recognition of the notion of the `primary care-giver' is significant, in that it represents an attempt to grapple with the importance in children's lives of a range of persons other than their biological or legal parents.

In South Africa, the concept of `parental power' or `natural guardianship' is also closely linked to the nuclear family model. `Parental power' vests equally in both parents of a child born in wedlock, whilst it is only the mother of an extra-marital child who automatically has parental power over such child. The natural father of an extra-marital child can, of course, apply to the High Court for guardianship or custody of or access to the child, which application will only be granted if the court is satisfied that it is in the best interests of the child. Similarly, the High Court may, in its capacity as upper guardian of minors, make guardianship, custody and access orders in respect of children in favour of non-parents, provided that such an order is regarded by the court as being in the best interests of the child concerned. South African case law illustrates that it is only in exceptional circumstances that the High Court will be prepared to award guardianship or custody of a child to a non-parent to the exclusion of the natural parents and that it is highly unusual for the court to appoint non-parents as guardians or custodians to act as such together with the parents of the child in question. Legal recognition of the parenting role of `social' or `psychological' parents in this country thus appears to be fairly limited, despite the wide diversity of family forms referred to above.

1.2 Comparative law
Recent law reform endeavours in the area of child law in other African countries also reflect an increased willingness to recognise both a broad range of family forms and the role of `social parents', viz. persons who are not biological parents but who fulfil parental functions by taking care of children or being otherwise involved in their upbringing. Thus, the Ghanaian Children's Act of 1998 defines a `parent' as including (apart from a natural parent) `a person acting in whatever way as parent' (section 124), while section 5 provides for the child's right `to live with his parents and family' (emphasis added). In terms of the 1996 Namibian Draft Child Care and Protection Act, `family' is defined as meaning `a child, the child's parents, any legal custodian or guardian of the child other than the child's parents, and any other person who acts as a primary caretaker for the child or acted as a primary caretaker for the child immediately prior to a removal or placement of such child in terms of this act' (clause 1).

It would appear that, in New Zealand, there is a growing realisation that confining `guardianship' (the means of establishing a parental relationship with a child in New Zealand) to the natural parents `does not always accord with the practices and values of non-European cultures'. Thus, it is legally possible (and apparently not uncommon) in that country for a variety of people to be appointed as additional guardians of a child, or even in some cases as substitutes for the natural parents. Guardianship and custody orders may be made in favour of non-parents in terms of the Guardianship Act 1968 or the Children, Young Persons and their Families Act 1989. The focus of the latter Act (the primary legislation dealing with children in need of care and protection) is on sustaining the family group and whanau. Although the word `family' is not defined in the 1989 Act, `family group' is defined as follows:

`"Family group", in relation to a child or young person, means a family group, including an extended family -

(a) In which there is at least 1 adult member -

(i) With whom the child or young person has a biological or legal relationship; or

(ii) To whom the child or young person has a significant psychological attachment; or

(b) That is the child's or young person's whanau or other culturally recognised family group.'
In terms of the 1989 Act, custody and guardianship orders may only be made (by a Family Court) after the court has made a declaration that the child in question is in need of care and protection. Such a declaration may not be made unless a `family group conference' has been held. Thus, at least as far as children in need of care and protection are concerned, the New Zealand legal position is based on the recognition of family relationships which include, in addition to status connections (biological, legal and whanau connections), also functional connections between children and adults (psychological attachments).

As will be discussed more fully below, the concept of `parental power' has been replaced, in countries such as England, Scotland and Australia, with the concept of `parental responsibility'. While legal recognition has been given in these countries to the existence of diverse family forms and domestic relationships in legislation dealing with family/domestic violence, the allocation of parental responsibility proceeds from the starting point of the child's biological parents (all mothers and all married fathers in the English and Scottish context; all parents, regardless of their marital status, in the Australian context). There are, however, detailed provisions in the English Children Act 1989, the Children (Scotland) Act 1995 and the Australian Family Law Act 1975 (as extensively amended by the Family Law Reform Act 1995) enabling the acquisition (by court order) of parental responsibility (or aspects thereof) by persons other than parents. Attempts have also been made to clarify the legal position of persons who, while not having parental responsibility for a particular child, nevertheless have the de facto care of the child, either on a temporary or part-time basis or on a longer term or full-time basis. So, for example, s 3(5) of the English Children Act of 1989 provides as follows:

`A person who -

(a) does not have parental responsibility for a particular child; but
(b) has care of the child,

may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare.'

While there is apparently some doubt about the exact scope of this provision, it seems that it does not empower the caregiver to take `major', as opposed to `minor' or day-to-day, decisions in relation to the child. Nor does it give the caregiver any legal right to retain the care of the child.

The Scottish provision goes somewhat further than its English counterpart. In terms of s 5 of the Children (Scotland) Act 1995:

`(1) Subject to subsection (2) below, it shall be the responsibility of a person who has attained the age of sixteen years and who has care or control of a child under that age, but in relation to him either has no parental responsibilities or parental rights or does not have the parental responsibility mentioned in section 1(1)(a) of this Act, to do what is reasonable in all the circumstances to safeguard the child's health, development and welfare, and even though he does not have the parental right mentioned in section 2(1)(d) of this Act, give consent to any surgical, medical or dental treatment or procedure where -

(a) the child is not able to give such consent on his own behalf; and

(b) it is not within the knowledge of the person that a parent of the child would refuse to give the consent in question.

(2) Nothing in this section shall apply to a person in so far as he has care or control of a child in a school ("school" having the meaning given by section 135(1) of the Education (Scotland) Act 1980).'

1.3 Comments and submissions received
In the Focus Group Discussion Paper on the Parent-Child Relationship, the following questions were posed:

(1) What is the most appropriate way to give legal recognition, in a comprehensive children's statute, to the diversity of family forms and 'parental'/child relationships existing in South African society?

(2) Should a more pluralistic and functional legal definition of 'the family' be incorporated in a comprehensive children's statute? If so, what should this definition be and for what purposes should it be utilised?

There was broad consensus among respondents that the diversity of family forms and 'parental'/child relationships existing in South African society must be recognised. There was, however, less clarity on how this recognition should be embodied in legislation. Some respondents supported the inclusion in the children's statute of a definition of 'family unit' or 'family group' and suggested that this definition should be based on a combination of the Namibian definition of 'family' and the New Zealand definition of 'family group'. Other respondents proposed that the concept 'parental responsibility', rather than 'family unit', be defined, and that the children's statute should also include a non-exhaustive list of guidelines of what 'parental responsibility' includes. Many respondents were of the view that legal recognition of family forms should not only be based on biological parenthood, but should take into consideration the wide variety of kinship and community care arrangements in which South African children are being brought up.

The detailed submission of the National Coalition for Gay and Lesbian Equality ('NCGLE') supported the recognition of the diverse range of family relationships and structures existing within South Africa, including unmarried heterosexual couples, same-sex partnerships, religious marriages, and relationships between family members such as siblings who live together and owe each other a mutual obligation of support. In particular, the Coalition submitted that, in order to enforce the best interests of the child, new child care legislation must expressly prohibit unfair discrimination against any child, parent or family member. In addition to the prohibited grounds of discrimination listed in the Constitution, the Coalition proposed that family status (relating to discrimination on the basis of biological relationships), nationality and socio-economic status be included as grounds of non-discrimination. The non-discrimination clause proposed by the Coalition reads as follows:

'No person shall unfairly discriminate, whether directly or indirectly, against any child, parent or family member who is identified by one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family status, nationality or socio-economic status.

This prohibition on unfair discrimination includes unfair discrimination on the basis of -

(a) a characteristic or perceived characteristic that appertains generally to persons identified by one or more grounds; or

(b) a characteristic or perceived characteristic that is generally attributed to persons identified by one or more grounds.

Disability includes "the presence in the body of organisms capable of causing disease or illness".’

There was also overwhelming support among respondents for the incorporation of a more pluralistic and functional legal definition of the family in a comprehensive children's statute. Here too, however, there was less clarity as to what this definition should be and as to the purposes for which such a definition should be utilised.

Professor C J Davel of the Centre for Child Law, University of Pretoria, supported the idea of broadening the concept of 'family' in a comprehensive children's statute. Professor Davel favoured the New Zealand approach because it provides for a primary care-giver and acknowledges not only the biological/legal relationship, but also functional relationships (psychological attachment) and the role of the extended family. Ms L Opperman and her colleagues, Ms Wilona Petersen and Ms Denise Mafoyane, largely share Professor Davel’s view. The Thasamoopo Welfare Social Workers argued that the reality of South African society dictates a definition of 'family' that goes beyond the context of the traditional nuclear family form and recognises the existence of child-headed households. This organisation would define 'family' as ‘an environment in which there are rules, enculturation, definition of rules and responsibilities, guardians and an adult regarded as a parent.’

A more pluralistic and functional legal definition of 'family' was also supported by Ms M De Beer, who proposed that any such definition should contain the following elements:

- at least one adult member;
- biological or legal ties with the child;
- a child or children;
- a relationship between the members;
- the addressing of basic needs;
- frequency and interaction between members; and
- membership of a community/society.

According to the NCGLE, a clear trend is being established in South African public policy and law so as to include non-conventional families and partners in definitions of 'family' or 'spouse'. Pointing to the constitutionally-entrenched right of a child 'to family care or parental care, or to appropriate alternative care when removed from the family environment', the NCGLE submitted that a comprehensive children's statute must give content to this right by expressly including definitions of both 'family' and 'parent' in an inclusive manner which acknowledges the reality of families in South Africa. The NCGLE argued that respect for and protection of diversity suggests that a definition of 'family' should be based on the roles that families fulfil, and not on the particular forms that they may take. Such a definition of family is important in order to facilitate -

- broader access to services which are either reserved for families, or to which families have priority - access to such services has historically been limited to traditionally defined families;

- the prevention of the removal of a child and his or her placement in foster care with strangers or in institutions - by failing to acknowledge and recognise diverse forms of family, children have historically been removed from the care of non-traditional and extended family structures.

The following definitions were suggested by the NCGLE:

- ‘A child is any person under the age of 18 years.’

- A family means a collection of individuals who - by contract, agreement or kinship -choose to function or in fact function as a unit in a social and economic system.

In relation to a child, a family member means any member of a family -

(a) with whom the child or young person has a biological or legal relationship;

(b) with whom the child or young person has developed a relationship based on a significant psychological or emotional attachment; or

(c) who acts as a care-giver to the child, has acted as a care-giver to the child, or has indicated an express intention to act as a care-giver.'

1.4 Evaluation and recommendation
The project committee recommends that the diversity of family forms and parent/child relationships in South Africa can best be recognised by means of the inclusion, in the new children's statute, of a section expressly prohibiting unfair discrimination against children on any of the grounds set out in section 9(3) of the Constitution, in article 2 of the Convention on the Rights of the Child ('CRC'), as also on the grounds of the family status, health status, socio-economic status, HIV-status or nationality of the child or of his or her parents, legal guardian, primary care-giver or any of his or her family members.

The project committee also recommends that the new children's statute should contain a definition of 'family', which definition should be relationship-focused and should entrench a non-traditional approach to family relations. The definition of 'family member' proposed by the NCGLE appears to give effect to most of the submissions received, although the committee is aware of the possible need for different definitions of 'family' for different purposes, for example adoption, foster care, access to services and so on.

2. The Shift from `Parental Power' to `Parental Responsibility'

2.1 Current South African law and practice
Although the Guardianship Act 192 of 1993 still uses the language of parental `rights, powers and duties’, it has been recognised in South Africa that the `parental power’ (or `natural guardianship') is in fact concerned more with the duties and responsibilities of parents than with parents' rights and powers - the modern emphasis in this regard being on the rights and interests of children rather than parents. As stated by Foxcroft J in the recent case of V v V :

`There is no doubt that over the last number of years the emphasis in thinking in regard to questions of relationships between parents and their children has shifted from a concept of parental power of the parents to one of parental responsibility and children's rights. Children's rights are no longer confined to the common law, but also find expression in s 28 of the Constitution of the Republic of South Africa Act 108 of 1996, not to mention a wide range of international conventions.'

As mentioned above, article 5 of the UN Convention on the Rights of the Child introduces to the Convention the concept of parents' and others' `responsibilities' for children, linking them to parental rights and duties, which are needed to fulfil responsibilities. Article 18 also expands on the concept of parental responsibilities, requiring States Parties to `use their best efforts' to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of their child: `Parents or, as the case may be, legal guardians, have primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.' Although the Convention does not contain a specific definition of `parental responsibilities', the content of the whole Convention appears to be relevant in this regard.

The Guidelines for Periodic Reports requires information to be provided (to the Committee on the Rights of the Child) on `the consideration given by law to parental responsibility, including the recognition of the common responsibilities of both parents in the upbringing and development of the child and that the best interests of the child will be their basic concern. Also indicate how the principles of non-discrimination, respect of the views of the child and the development of the child to the maximum extent, as provided for by the Convention, are taken into account. As pointed out by Rachel Hodgkin and Peter Newell, the implication is that legal concepts of parental rights and powers should be translated into the concept of parental responsibilities and that the latter concept should be reflected and defined in the law of States Parties, using the framework of the Convention.

Thus, not only can it be argued that the South African common law concept of `parental power' is outmoded and unsatisfactory, it would also appear that, as a State Party to the Convention, South Africa has an international legal obligation to recognise in its legislation the shift away from this concept towards the concept of parental responsibility. There was also overwhelming support in the submissions on and responses to the First Issue Paper for legislative recognition of this shift in emphasis. At the same time it was felt that an appropriate balance should be struck between the responsibilities of parents towards their children and the rights and powers needed to enable parents to fulfil their responsibilities. Care should be taken to avoid new legislation becoming `parent-unfriendly'.

2.2 Comparative Law
In 1984, the Committee of Ministers of the Council of Europe adopted a Recommendation specifically dealing with the topic of parental responsibilities, it being agreed that `the term "parental responsibilities" described better the modern concept according to which parents are, on the basis of equality between the parents and in consultation with their children, given the task of educating, legally representing, maintaining etc. their children. In order to do so they exercise powers to carry out duties in the interests of the child and not because of an authority which is conferred on them in their own interests.'

The term `parental responsibility' was introduced into English law by the pioneering Children Act 1989, which came into force in 1991. It was subsequently adopted in the domestic legislation of other UK jurisdictions such as the Isle of Man, Northern Ireland and Scotland. Australia too has recently adopted this key concept, in terms of the far-reaching amendments made to the Family Law Act 1975 by the Family Law Reform Act 1995 which came fully into operation in June 1996. This trend is also evident from recent child legislation or draft legislation in several African countries. So, for example, s 7(1) of the Ugandan Children Statute 1996 (in force from 1997) provides that `[e]very parent shall have parental responsibility for his or her child'. So too, section 6 of the Ghanaian Children's of 1998 is headed `Parental duty and responsibility' and section 6(3) enumerates certain specific duties which parents have in relation to their children. The revised draft Kenya Children Bill of 1998 contains detailed provisions governing the meaning, allocation and acquisition of 'parental responsibility', parental responsibility agreements and the transmission of parental responsibility on the death of one or both parents of a child.

2.3 Comments and Submissions received
Both the Issue Paper, as also the Focus Group Discussion Paper, posed the question as to whether a comprehensive children's statute should incorporate the concept of parental responsibility to replace the common-law concept of parental power.

There was a great deal of support in the submissions on and responses to the Issue Paper for a legislative recognition of the shift in emphasis from 'parental rights' to 'parental responsibilities', although some respondents were of the view that this was not necessary. Respondents to the focus group discussion paper as well as participants at the focus group discussion agreed overwhelmingly that the move from the concept of 'parental power' to 'parental responsibility' is justified. However, as indicated above, several respondents cautioned that an appropriate balance should be struck between the responsibilities of parents towards their children and the rights and powers needed to enable parents to fulfil their responsibilities. Thus, according to Ms C Grobler from the Office of the Family Advocate, Pretoria:
‘Although it is necessary to recognise the paradigm shift from the power concept to responsibility, the importance of the parental role (e.g. guidance) should not be undermined. Children should also be taught that they have certain responsibilities vis-à-vis their relationship with their parents.’

The NCGLE pointed out that the concept of 'parental power' focuses on control by parents over their children's lives at the expense of providing such children with appropriate direction or guidance. The control model disempowers children by rendering them unable to assert their rights and to understand their concomitant responsibilities. The Coalition therefor submitted that the common-law concept of parental power is incompatible with our Constitution, which expressly recognises that particular rights are vested in children. Referring to the judgment of Foxcroft J in VvV, the Coalition argued that, to serve the purposes of consistency, legal certainty and the protection of children's rights and interests, the concept of 'parental power' must be expressly replaced in the new children's statute.

2.4 Recommendation
The project committee recommends that the new children's statute should replace the common-law concept of ‘parental power' with a new concept of 'parental responsibility', while at the same time striking the correct balance between the responsibilities of parents and the rights and powers needed to enable parents to fulfil their responsibilities.

3. The Meaning and Content of Parental Responsibility

3.1 Introduction
What does `parental responsibility' mean and how does it differ from `parental power' or `parental rights and duties'? It is obviously important that parental responsibility be definable in some way in order to determine what those persons who have it are entitled or bound to do in relation to the child concerned. The question thus arises as to whether such definition should be contained in a general statutory provision or simply left to case law and statutory provisions dealing with specific points. In this regard, different approaches have been followed in various legal systems which have incorporated the concept in their legislation.

3.2 Comparative Law
An early attempt to define the concept is to be found in the abovementioned Recommendation adopted by the Committee of Ministers of the Council of Europe in 1984, describing parental responsibilities as `a collection of duties and powers which aim at ensuring the moral and material welfare of the child, in particular taking care of the child, by maintaining personal relationships with him and by providing for his education, his maintenance, his legal representation and the administration of his property'.

Central though the concept is to the English Children Act 1989, this Act does not contain a comprehensive definition of what `parental responsibility' comprises. Instead, the statutory definition is essentially a `non-definition', in that it merely refers to the general law (i.e. common law and other statutes) to reveal the content of the `new' concept. Thus, s 3(1) states that :

`In this Act, `parental responsibility' means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.'

In defining the concept in this way, the Act implemented the strategy recommended by the English Law Commission in its Report entitled Family Law -Review of Child Law - Guardianship and Custody. The view of the Law Commission was that, although it would be `superficially attractive' to provide a comprehensive list of the incidents of parental responsibility, it was impractical to do so. Such a list would have to change from time to time to meet differing needs and circumstances and would also have to vary with the age and maturity of the child and the circumstances of each individual case. In the absence of a comprehensive definition, various English writers have attempted to give some guidance by listing the major components of parental responsibility. Thus, Bromley and Lowe suggest that the concept `comprises at least the following:
a. Providing a home for the child.
b. Having contact with the child.
c. Determining and providing for the child's education.
d. Determining the child's religion.
e. Disciplining the child.
f. Consenting to the child's medical treatment.
g. Consenting to the child's marriage.
h. Agreeing to the child's adoption.
i. Vetoing the issue of a child's passport.
j. Taking the child outside the [country] and consenting to the child's emigration.
k. Administering the child's property.
l. Protecting and maintaining the child.
m. Agreeing to change the child's surname.
n. Representing the child in legal proceedings.
o. Burying or cremating a deceased child.
p. Appointing a guardian for the child.’

The English legislative approach has, however, been criticised as unsatisfactory: `it immediately throws one back to the rights and duties concept which "responsibility" was supposed to replace'. Despite this criticism, the Australian Family Law Reform Act 1995, which drew very substantially on the provisions of the English Children Act 1989, does not take the matter any further. Section 61B of the Australian Family Law Act 1975, as amended by the 1995 Act, provides as follows:

`In this Part, "parental responsibility", in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.'

In B and B: Family Law Reform Act 1995, the Family Court, referring to the above definition, stated:

`9.24 This definition provides little guidance, relying as it does on the common law and relevant statutes to give it content. It would appear to at least cover guardianship and custody under the previous Pt. VIII and may be wider . . .

9.25 It omits any reference to rights. While this omission is understandable, given the philosophy of the amendments, it is doubtful whether that achieves any practical effect other than to make it clear that there are no possessory rights to children, insofar as this could be said to have been the case prior to the amendments.'

The English and Australian position may usefully be contrasted with that in Scotland. The Scottish Law Commission was of the view that there would be advantages in having a general statutory statement of parental responsibilities. Such a statement would make explicit what was already implicit in the law; it would counteract any impression that a parent had rights but no responsibilities; and it would enable the law to make it clear that parental rights were not absolute or unqualified, but were conferred in order to enable parents to meet their responsibilities.

In accordance with the recommendations of the Scottish Law Commission, the Children (Scotland) Act 1995 spells out the content of the concept of `parental responsibilities' as follows:
`[A] parent has in relation to his child the responsibility -

(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child -

(i) direction;
(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative,

but only in so far as compliance with this section is practicable and in the interests of the child.'

The Act goes even further by listing certain rights which parents have in order to enable them to fulfil their parental responsibilities. Thus, in terms of s 2(1), a parent:

`has the right –

(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative.'

The Scottish approach has been applauded by several commentators, being described as a `distinct improvement [on the English legislation] . . . more thoughtful, better-focused but most importantly more child-centred than that found in the Children Act 1989'. It has been pointed out that the Scottish legislation `neatly handles the problem of dealing with children of different ages and maturity by the simple expedient of stating that the responsibility to give direction and guidance should be "in a manner appropriate to the stage of development of the child" and [that] by making separate provisions for responsibilities and rights it grapples with the problem of having to deal with the parent-child relationship not simply between parent and child (in which context the expression "responsibility" seems absolutely right), but also as between the parents themselves and between parents and third parties (in which context the expression "rights" seems appropriate). It also avoids the problem of being too specific.'

Turning to the African continent, the Ugandan Children Statute 1996 follows the English and Australian approach by defining parental responsibility as meaning `all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child'. However, the Ugandan legislation does not stop there - it goes on to enumerate certain basic responsibilities on the part of parents and other caregivers as follows:

`6(1) It shall be the duty of a parent, guardian or any person having custody of a child to maintain that child and, in particular that duty gives a child the right to -

(a) education and guidance;
(b) immunisation;
(c) adequate diet;
(d) clothing;
(e) shelter; and
(f) medical attention.

(2) It shall be the duty of any person having custody of a child to protect the child from discrimination, violence, abuse and neglect.

* * * * *

8. It shall be unlawful to subject a child to social or customary practices that are harmful to the child's health.

9. No child shall be employed or engaged in any activity that may be harmful to his or her health, education, mental, physical or moral development.'

A similar `blend' of parental responsibilities and children's rights is to be found in the Ghanaian Children's Act of 1998. Sub-Part I of the Act is headed `Rights of the child and parental duty' - the children's rights provided for in this Sub-Part and in other sections of the Act appear to encompass all the rights contained in the `children's rights' provisions of the 1992 Constitution of the Republic of Ghana, and many of the rights in the UN Convention, including socio-economic rights. Although there is no definition of `parental responsibility' in the Act, Sub-Part I contains a statement of `parental duty and responsibility' reading as follows:

`(1) No parent shall deprive a child [of] his welfare whether –

(a) the parents of the child are married or not at the time of the child's birth; or

(b) the parents of the child continue to live together or not.

(2) Every child has the right to life, dignity, respect, leisure, liberty, health, education and shelter from his parents.

(3) Every parent has rights and responsibilities whether imposed by law or otherwise towards his child which include the duty to -

(a) protect the child from neglect, discrimination, violence, abuse, exposure to physical and moral hazards and oppression;

(b) provide good guidance, care, assistance and maintenance for the child and assurance of the child's survival and development;

(c) ensure that in the temporary absence of a parent, the child shall be cared for by a competent person and that a child under eighteen months of age shall only be cared for by a person of fifteen years and above;

except where the parent has surrendered his rights and responsibilities in accordance with law.’

The revised draft of the Kenya Children Bill 1998 defines 'parental responsibility' as meaning ‘all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child's property in a manner consistent with the evolving capacities of the child.’
The Kenyan legislation goes on to provide that:

'(2) the duties referred to in sub-section (1) include in particular -

(a) the duty to maintain the child and in particular to provide him with -

(1) education and guidance;
(2) immunisation;
(3) adequate diet;
(4) clothing;
(5) shelter;
(6) medical attention;
(7) leisure and recreation;

(b) the duty to protect the child from neglect, discrimination and abuse;

(c) the right to -

(i) to give parental guidance in religion;
(ii) determine the name of the child;
(iii) appoint a guardian in respect of the child;
(iv) receive, recover, administer and otherwise deal with the property of the child for the benefit [and] in the best interests of the child;
(v) arrange or restrict the emigration of the child from Kenya;
(vi) give notice of dissent to the marriage of a child;
(vii) upon the death of the child, to arrange for the burial or cremation of the child.’

3.3 Comments and submissions received
The focus group discussion paper posed various questions as to whether a new children's statute should contain a definition of the concept of parental responsibility and, if so, how this concept should be defined.

The overwhelming majority of respondents agreed that it was necessary for a new children's statute to contain a definition of the concept of parental responsibility and that there should be an attempt (as, for example, in Scotland) to enumerate more specifically the components of parental responsibility. Several respondents proposed certain amendments to the Scottish model. Thus, for example, Professor CJ Davel supported the inclusion under parental responsibility of provisions similar to those contained in the Ugandan and Ghanaian legislation so as to make it unlawful to subject a child to social or cultural practices that are harmful to the child's health, as well as to make provision for the child’s right to refuse to be betrothed or married.

Other respondents also supported the Scottish provision, while recommending that this provision should be expanded to include, inter alia, the following parental responsibilities:

- to provide for the basic needs of children;

- to protect the child from discrimination, violence, abuse or neglect, as well as harmful social or cultural practices;

- to provide suitable alternative care for a child in the absence of a parent;

- to provide or ensure an education for the child;

- to ensure that the child is immunised;

- to provide an adequate diet, clothing, shelter and medical attention to the child; and

- to protect the child from harmful employment and other practices.

On the other hand, Ms C Grobler of the Office of the Family Advocate (Pretoria) was in favour of defining the concept of parental responsibility without listing the specific components of such responsibility (in other words, the English/Australian approach). This was also the approach of the Thasamoopo Welfare Social Workers and of Ms Denise Mafoyane. Yet another approach was that suggested by Mr D S Rothman, who recommended that parental responsibility should be defined by incorporating ‘parenting elements’ that would largely avert the circumstances listed in section 14(4)(aB) of the Child Care Act.

The focus group discussion paper also posed the question as to whether a comprehensive children's statute should, in addition to a definition/statement of parental responsibility/responsibilities, also contain a definition/statement of parental rights and, if so, exactly what parental rights should be included.

In this regard, the vast majority of respondents were of the opinion that a new children's statute should contain a definition/statement of parental rights, provided that it is made clear that such rights are not absolute. Parental rights should include rights that parents can exercise against their children, the other parent, third parties and the State. While respondents recognised that persons with parental responsibility do need the affirmation that they have certain parental rights in order to enable them to exercise their parental responsibilities, any definition of parental rights should be an open-ended one.

Certain respondents linked the concepts of parental responsibility and parental rights so as to ensure that whatever rights a parent has in relation to a child are limited by respect for and protection of the child's best interests.

The NCGLE argued that, without such an express relation between the two concepts, the shift from parental power to parental responsibility would be difficult to achieve. The formulation proposed by the Coalition reads as follows:
'A parent is any family member who has parental responsibility.

Parental responsibility means the responsibility a parent has in relation to a child, including -

(a) safeguarding and promoting the child's health, development and welfare;

(b) providing direction or guidance in a manner appropriate to the stage of development of the child;

(c) providing an appropriate environment to foster respect for diversity, community and the environment;

(d) maintaining personal relations and regular, direct contact with the child if he or she is not living with the parent; and

(e) acting as the child's legal representative,

but only insofar as compliance is practicable and based on the best interests of the child.

A parent has those rights which are necessary to fulfil his or her parental responsibility, including the right-

(a) to have the child living with him or her or otherwise to regulate the child's residence;

(b) to direct or guide the child's upbringing in a manner appropriate to the child's stage of development;

(c) if the child is not living with him or her, to maintain personal relations and regular, direct contact; and

(d) to act as the child's legal representative,

but only insofar as those rights are exercised in a manner consistent with the constitutionally recognised rights of the child.’

In addition to the parental rights included in the Scottish legislation, certain respondents supported the inclusion of the following additional parental rights in the new children's statute:

- to protect the child from abuse and neglect, discrimination, oppression, violence and exposure to physical or moral hazards;

- to provide guidance, care, assistance and maintenance to the child to ensure the survival and development of the child;

- the right to have a say in all matters related to the well-being of the child;

- the right to access and custody of the child where it is in the best interest of the child; and

- the right to have access to information regarded the development of the child where the child is not living with the parent concerned.

3.4 Evaluation and recommendation
The project committee is in favour of a detailed definition of parental responsibility, which definition should enumerate the components of parental responsibility in a non-exhaustive manner. The project committee also recommends that a new children's statute should contain a statement of parental rights, which rights should, to a large extent, mirror the components of parental responsibility. In this regard, the committee is in favour of formulations along the lines of those included in the Scottish legislation, with certain amendments and additions. These suggested statutory provisions read as follows:

'Parental Responsibility
A parent has in relation to his or her child the responsibility -

(a) to create, within his or her capabilities and means, a suitable home for the child and living conditions that promote the child's health, welfare and development;

(b) to promote between him or her and the child a sound parent-child relationship and, if the child is not living with him or her, to maintain personal relations and direct contact with the child on a regular basis;

(c) to discipline the child in a humane manner;

(d) to protect the child from ill-treatment, neglect, exposure, exploitation and from physical and moral hazards;

(e) to safeguard and to protect the child's human rights and fundamental freedoms;

(f) to guide and direct the child's education and upbringing in a manner appropriate to the stage of development of the child;

(g) to guide, advise and assist the child in all matters that require decision making by the child, due regard being had to the child's age and maturity;

(h) to administer and safeguard the child's property; and

(i) to assist and represent the child in contractual, administrative and legal matters,

but only insofar as compliance with this section is practicable and ensures that the best interest of the child is the paramount concern in all matters effecting the child.’

'Parental rights
A parent has in relation to his or her child the right-

(a) to have the child live with him or her or, alternatively, to determine where the child is to live;

(b) if the child is not living with him or her, to maintain personal relations and direct contact with the child on a regular basis;

(c) to discipline the child in a humane manner;

(d) to protect the child from ill-treatment, neglect, exposure, exploitation and from physical and moral hazards;

(e) to safeguard and protect the child's human rights and fundamental freedoms;

(f) to guide and direct the child's education and upbringing in a manner appropriate to the stage of development of the child;

(g) to guide, advise and assist the child in all matters that require decision-making by the child, due regard being had to the child's age and maturity;

(h) to administer and safeguard the child's property; and

(i) to assist and represent the child in contractual, administrative and legal matters,

but only insofar as compliance with this section is practicable and ensures that the best interest of the child is the paramount concern in all matters effecting the child.'

As regards a person who does not have parental responsibility for a particular child, but has the de facto care of the child (either on a temporary or part-time basis or on a longer term or full-time basis), the committee recommends that the legal position of such a person in relation to the child should be spelt out in the new children's statute, as has been done in the English and Scottish legislation, as also in the revised draft of the Kenya Children Bill. The proposed statutory provision reads as follows:

'Care of child by person without parental responsibilities or parental rights
(1) A person who has the care of a child, but who does not have parental responsibilities or parental rights in respect of such child, has the responsibility to do what is reasonable in all the circumstances-

(a) to safeguard the child's health, welfare and development; and

(b) to protect the child from ill-treatment, neglect, exposure, abuse, exploitation and from physical or mental hazards.

(2) A person contemplated in subsection (1) shall have all the rights and powers which are reasonably necessary for fulfilling the responsibilities referred to in that subsection.

(3) A Court may limit or restrict any responsibility, right or power which a person contemplated in subsection (1) has in terms of this section.'

As was pointed out in the Issue Paper, the Children Act 1989 (UK), the Children (Scotland) Act 1995 and the Australian Family Law Reform Act 1995 made significant changes to the terminology of court orders relating to children. The major objectives of these changes were as follows:

× to reduce disputes between parents following their separation, by removing the 'proprietary' notion of children inherent in custody battles. An important psychological aspect was the idea that neither parent should be considered more important, regardless of where the children live or who is the child's primary carer;

× to direct attention to the rights and interests of children rather than the needs and concerns of their parents in post-separation arrangements and decision-making. The legislative changes sought to emphasise the idea that children have 'rights' while parents have 'responsibilities'. Thus, in all three jurisdictions, the former powers of guardianship (long-term responsibility) and custody (day-to-day responsibility) that were vested in the parents of a child were replaced by a single concept of 'parental responsibility'. A new range of court orders (referred to in the Australian legislation as 'parenting orders’) replaced the previous custody and access orders, namely, orders for 'residence’ ‘contact' and ‘specific issues'.

The effect of court orders in relation to children was also changed by the new legislation in England, Scotland and Australia. The legislation made it clear that parental responsibility for children remains unaffected by the separation of the parents or the child's living arrangements. Unlike the previous ‘custody’ order, a ‘residence’ order does not vest the person concerned with sole decision-making power for day-to-day matters; it simply regulates the arrangements as to the person or persons with whom the child is to live. Similarly, while the previous ‘access’ order gave the non-custodian parent a ‘right of acces’ to the child, a ‘contact’ order simply regulates the arrangements for maintaining personal relations and direct contact between a child and a person with whom the child is not, or will not be, living.

The legislation in all three jurisdictions makes it clear that a parenting order in relation to a child in favour of one person does not take away or diminish any aspect of the parental responsibilities or parental rights of any other person in respect of the relevant child, except to the extent (if any) expressly provided for in the parenting order and/or necessary to give effect to the parenting order.

The Issue Paper posed the question as to what would be appropriate terms, in a South African context, for the components of parental responsibilities and parental rights that are presently encapsulated in the concepts of guardianship, custody and access. While certain respondentssubmitted that consideration should be given to adopting the terminology now used in the English, Scottish and Australian legislation, there were other respondents who held the view that it was unnecessary to embark on an exercise of amending terminology which is internationally known and which has functioned adequately in the past. Both the office of the Chief Family Advocate, as also the Afrikaanse Taal en Kultuurvereniging ('the ATKV'), pointed out that changes to terms such as ‘guardianship’, ‘custody’ and ‘access’ are not of absolute importance and that, even if the wording is changed, people will not necessarily act differently, although a change in terminology may help to emphasise parental responsibilities instead of rights. Mr D S Rothman (Commissioner of Child Welfare, Durban) argued that it would be unwise to replace terms such as ‘guardianship’ and ‘custody’ with terms that are not universally known and used in South Africa. Mr Rothman pointed out that ‘guardianship’ is implied in the concept of ‘parental power’ as ‘parental guardianship’, as supposed to ‘legal guardianship’ awarded to a non-parent by a court of law. ‘Sole guardianship’ is to the total exclusion of the other parent, in contrast to the co-guardianship normally exercised by both parents. According to Mr Rothman, the present term ‘custody’ presents similar complexities.

The project committee is of the view that the components of 'parental responsibility' presently encapsulated in the terms 'guardianship', 'custody' and 'access' should also be defined in a comprehensive children's statute. The most appropriate term for a person's responsibility, and corresponding right, to maintain personal relations and direct contact with a child who is living with another person would appear to be the term 'contact'. This term would include both physical contact with the child (i.e. visiting the child or being visited by the child), as also other means of communication with the child (for example, telephonic or email contact).

As regard an appropriate term for the responsibilities, and corresponding rights, vested in a person with whom the child is to live, the project committee considered various actions, such as the retention of the term 'custody' or the replacement of the concept of 'custody' with a new concept of 'residence’ or day-to-day ‘care’. Because of the difference in the legal position of a person who has the de facto care of the child, and the legal position of a person who has the de jure care of a child, the preferable option would appear to be either to retain the term 'custody' (as has been done in the Ghanaian Children's Act of 1998 and in the revised draft of the Kenya Children Bill of 1998) or the introduction of the concept of 'residence' (as in the English, Scottish and Australian legislation). The project committee invites comment on the most appropriate option in this regard.

As regards 'guardianship', the project committee recommends that this term should be retained, but should be defined so as to encompass the residual aspects of parental responsibility (viz. those not covered by 'contact’ and 'residence') (cf. in this regard clause 97 of the revised draft of the Kenya Children Bill). The committee also recommends that provision be made in the new children's statute for the appointment of testamentary guardians in the event of a parent's death (see section 7 of the Children (Scotland) Act 1995, section 5 of the English Children Act 1989 and clauses 98-99 of the revised draft of the Kenya Children Bill). Provision should also be made for the appointment, by the court, of a person to be a child's guardian if the child has no parent with ‘parental responsibility’ for him or her or if the person in whose favour a ‘residence order’ in respect of the child has been made dies while such order is in force and no other ‘residence order’ has been made in favour of a surviving parent of the child (see, in this regard, the provisions of clause 100, read together with clause 24, of the 1998 Kenya Children Bill).

4. The Allocation of Parental Responsibility

4.1 Introduction
As stated above, article 18 of the Convention on the Rights of the Child provides that `[p]arents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child'. Although it is clear from this article that no distinction is drawn between extra-marital children and those born in wedlock, emphasis is placed on the primacy of parents in the allocation of parental responsibilities. Elsewhere in the Convention, however, it is recognised that family structures vary and that a child's extended family or community can play an important role in the child's upbringing.

Other articles of the Convention which emphasise the primacy of the parent/child relationship are article 7 (which gives children the right, `as far as possible', to know and be cared for by their parents) and article 9 (which gives children the right to live with their parents or, if separated from one or both parents, the right to maintain personal relations and direct contact with both parents on a regular basis, unless this is contrary to the child's best interests). So too, article 16(1) of the UN Convention on the Elimination of All Forms of Discrimination against Women (1979) directs States Parties to take all appropriate measures to ensure that men and women have `the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children', as also `the same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children'. Also relevant in this regard is the `Bill of Rights' in the South African Constitution (Act 108 of 1996) which outlaws unfair discrimination on the grounds, inter alia, of sex, birth and marital status, guarantees equality and equal protection of the law for all persons, entrenches rights to privacy and human dignity, and every child's right to `family care, parental care, or to appropriate alternative care when removed from the family environment'.

A discussion of the allocation of parental responsibility gives rise to questions such as the following : should parental responsibility automatically vest in all biological parents whether they are married or not? Should persons (or bodies) other than parents be able to acquire parental responsibility and, if so, who, how and in what circumstances? If such third parties do acquire parental responsibility, what effect does or should this have on the legal position of the biological parents?

4.2 Biological parents

4.2.1 Current South African law and practice
As pointed out above, South African law gives preference to the mother in the context of the parental power over extra-marital children. While the parental power over (or `natural guardianship' of) a legitimate child vests equally in both parents, in the case of an extra-marital child it is the mother who is its natural guardian (and also its custodian) to the exclusion of the father. The father may, on application to the High Court, be granted access to, or custody or guardianship of, his extra-marital child if he can satisfy the court that this is in the best interests of the child. In considering such an application, the court has to take into account, `where applicable', a non-exhaustive list of factors, including the relationship between the applicant father and the natural mother; the relationship of each of the natural parents (or of any other person) with the child; the effect of separating the child from the applicant father or the natural mother (or from any other person); the attitude of the child to the granting of the application; the degree of commitment that the applicant father has shown towards the child, and whether the child is the offspring of a customary union or of a marriage concluded under any system of religious law.

If an extra-marital child is to be adopted, the mother's consent is required, as well as that of the child himself or herself if he or she is over the age of 10 years. At present, the father's consent to the adoption of his or her extra-marital child is not required and it would appear that the father is not even entitled to notification of the intended adoption. However, in response to the much-publicised Constitutional Court decision in the case of Fraser v Children's Court, Pretoria North, the Adoption Matters Amendment Act 56 of 1998 has been enacted, although it is not yet in operation. Section 4 of this Act amends s 18(4)(d) of the Child Care Act so as to provide for the granting of consent by both parents to the adoption of a child born out of wedlock, provided that the natural father has acknowledged himself in writing to be the child's father and has made his identify and whereabouts known. The father's consent may be dispensed with in the following circumstances: if the father has failed to acknowledge himself as the father of the child or has, without good cause, failed to discharge his parental duties with regard to the child; if the child was conceived as a result of an incestuous relationship between the parents; if the father has been convicted of the crime of rape or assault of the mother of the child, or has been found by a children's court, on a balance of probabilities, to have raped or assaulted the mother of the child; if the father has failed to respond, within 14 days, to a notice served upon him informing him of the fact that the mother has given her consent to the adoption of the child and giving him the opportunity to, inter alia, apply for the adoption of the child himself. Provision is also made for the amendment of the Births and Deaths Registration Act 51 of 1992 so as to allow the natural father of an extra-marital child to apply to the Director-General, with the mother's consent, for the amendment of the child's birth registration so as to record the father's acknowledgement of paternity and his personal particulars. Where the mother's consent is not forthcoming, the father will be able to apply to the High Court for a declaratory order confirming his paternity and dispensing with the requirement of the mother's consent.

Despite these legislative improvements in the legal position of the father of an extra-marital child in South Africa, there are persons who argue that, especially in view of the constitutional and international legal provisions set out above, the law of parent and child should be reformed so as to incorporate full sharing by both parents of all parental rights and responsibilities, regardless of whether the child is born in or out of wedlock. On the other hand, it has been pointed out that, while it is true that the maternal preference in this context `appears to violate a requirement of formal equality, there are strong arguments in favour of the view that the maternal preference does not violate a deeper notion of substantive equality which underpins our constitutional commitment to egalitarianism'. Substantive equality requires us to examine the actual social and economic conditions that prevail in South Africa and, in particular, the gender-based division of parenting roles and the economic subordination of women occasioned in the main by their childcare responsibilities. Despite the constitutional commitment to equality, the reality in this country is still that it is predominantly women who care for children, whether born in or out of wedlock. This sexual division of labour is further exacerbated by the inadequate provision of child-care facilities, keeping women out of the formal work sector because they have no one to look after their children. As Sandra Burman has observed, the common pattern in South Africa (at least where there is no marriage between the parents under any system of law) is that the mother bears practically the full responsibility for caring for and rearing the child, with little or no material assistance from the father or members of his family. So too, in the abovementioned decision of the Constitutional Court in the Fraser case, Mahomed DP emphasised the need for Parliament to be `acutely sensitive to the deep disadvantage experienced by single mothers in our society'. These considerations may justify the conclusion that, at the current stage of South African societal and economic development, the mere existence of a biological tie should not in itself be sufficient to justify the automatic vesting of all parental responsibilities and rights in the father, where the father has not availed himself of the opportunity of developing a relationship with his extra-marital child and is not willing to shoulder the responsibilities of the parental role.

Comparative law
From a comparative perspective, it is interesting to note that recent law reform endeavours in the area of child law in some other African countries appear to proceed from the assumption that the marital status of parents should not affect their parental responsibilities in respect of their children. So, for example, the Ugandan Children Statute 1996 confers parental responsibility on `every parent' of a child, apparently irrespective of whether or not the child was born in wedlock. This statute contains a procedure for a declaration of parentage and provides that such a declaration `shall have the effect of establishing a blood relationship of father and child or of mother and child . . . accordingly, the child shall be in the same legal position as a child actually born in lawful wedlock towards the father or the mother.' However, a declaration of parentage does not have the effect of automatically conferring `rights of custody' in respect of the child upon the `declared' mother or father. The court may make an order concerning the custody of the child at the same time as a declaration of parentage, or at any other time. The court's primary consideration in making decisions on questions of custody (as with all questions concerning the upbringing of a child or the administration of a child's property) is the `welfare of the child'. The First Schedule to the Statute lists various factors to which the court `or any other person' must have regard in making decisions about children, including `the ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding'.

The section of the Ghanaian Children's Act of 1998 dealing specifically with `parental duty and responsibility' applies to all parents, regardless of their marital status and of whether or not they are living together. Both parents are responsible for the registration of the birth of their child and the names of both parents must be reflected on the birth certificate unless the father of the child `is unknown to' the mother. Any parent, family member or other person `who is raising a child' may apply to a Family Tribunal for custody of the child, while a parent, family member or other person `who has been caring for a child' may apply to this tribunal for periodic access to the child. When making orders for custody or access, a Family Tribunal is enjoined `to consider the best interest of the child and the importance of a young child being with its mother', as also certain listed factors including `the views of the child if the views have been independently given'.

In terms of the revised draft of the Kenya Children Bill of 1998, where a child’s parents were not married to each other at the time of the child’s birth and have not subsequently married each other, the mother has automatic parental responsibility for the child, but the father does not have such parental responsibility unless he acquires it in one of the following three ways:

(i) By an order of court made upon the father’s application;

(ii) By entering into a ‘parental responsibility agreement with the mother’; or

(iii) By cohabiting with the child’s mother subsequent to the child’s birth for a period or periods which amount to not less than twelve months, or by acknowledging paternity of the child, or by maintaining the child – in any of these circumstances, the father acquires parental responsibility for the child, ‘notwithstanding that a parental responsibility agreement has not been made by the mother and father of the child’.

In order to be effective, a parental responsibility agreement between the parents of a child born out of wedlock must be made ‘substantially in the form prescribed by the Chief Justice’. Such a parental responsibility agreement may only be terminated by a court order made on the application of any person who has parental responsibility for the child concerned, or by the child himself or herself with the leave of the Court. (Such leave to be granted only if the Court is satisfied that the child has sufficient understanding to make a proposed application).

The Namibian Draft Children's Status Act of 1996 vests `equal guardianship' in the parents of a child born out of wedlock, subject to the proviso that `the rights and responsibilities of guardianship shall apply only to parents who have voluntarily acknowledged parentage'. A non-custodian parent who has not voluntarily acknowledged parentage may apply to the court for equal guardianship. In the absence of a court order to the contrary, however, it is the mother of an extra-marital child who has `sole custody' of such child, whether she is a major or a minor. The father (even if he is a minor) may apply to court for an order giving him sole custody of the child, while provision is also made for both parents jointly to apply to court for an order giving them joint custody of their extra-marital child. As regards access to an extra-marital child, the Draft Act provides that the non-custodian parent who has voluntarily acknowledged parentage has a right of reasonable access to the child (in the absence of a court order to the contrary). This right does not, however, accrue to the father of a child conceived as a result of the rape of the mother. A non-custodian parent who has not voluntarily acknowledged parentage of an extra-marital child may obtain reasonable access to such child by application to court, if the court considers this to be in the best interests of the child.

In England, Scotland and Australia, there was no dispute that parental responsibility should automatically be vested in all mothers, irrespective of their marital status, and in married fathers (i.e. those who were married to the mother at the time of or subsequent to the child's birth). There was, however, a considerable debate (particularly in England and Scotland) as to whether the unmarried father should automatically be vested with parental responsibility.

In England, the Law Commission initially suggested (in 1979) that unmarried fathers should automatically be in the same legal position in relation to their children as married fathers. This suggestion elicited widespread opposition. Thus, for example, the National Council for One Parent Families argued that this would cause untold difficulties for the majority of mothers trying to bring up children on their own and that the benefits to children were by no means obvious. It was also feared that the risk of interference might discourage the mother from disclosing paternity or might cause stress and insecurity where the mother had married a third party. These considerations clearly carried weight with the Law Commission and, in its Report on Illegitimacy in 1982, the Commission recommended that unmarried fathers should not have `parental rights' automatically, but that they should be entitled to acquire such rights only after application to a court. The Commission rejected the proposal by the National Council for One Parent Families that an unmarried father should also be able to acquire `parental rights' on the basis of a joint declaration (i.e. a formal agreement) by himself and the mother to that effect. The Family Law Reform Act 1987 (which flowed from the Commission's recommendations) thus enabled an unmarried father to obtain the same status as a married father by applying to court, but did not provide for the sharing of parental rights by agreement without the necessity of going to court. This latter possibility was ultimately reconsidered and accepted by the Law Commission in its Report on Guardianship and Custody and the Children Act 1989 gave effect to its recommendations in this regard. Section 4 of this Act introduced a new procedure for an unmarried father to acquire parental responsibility by making an agreement with the mother, which agreement must be properly witnessed and registered with the court. In cases where the parents do not make such an agreement, the father may apply to the court for an order granting him parental responsibility. Such a court order, as also a parental responsibility agreement, may only be brought to an end by order of court.

The ability to make parental responsibility agreements was one of the innovations of the 1989 Children Act. Before then it was only possible to obtain a court order. However, as the English Law Commission had pointed out the need to resort to judicial proceedings seemed unduly elaborate, expensive and unnecessary unless the child’s mother objected. Accordingly, section 4(1)(b) now allows for agreements to be made, the procedure being that the parties should complete a prescribed form, having their signatures witnessed in court, and send the form to the Principal Registry for registration. It has been noted that these formalities are minimal. In particular there is no investigation of whether the agreement is in the child’s best interest nor of why the parents are entering into it. Since its introduction, the number of parental responsibility agreements registered each year is around 3 000. This is a low take-up rate in relation to the number of births out of wedlock registered in England and Wales - 232 663 registered births (35,8% of all registered births) in 1996. Of these registered births out of wedlock, 181 647 (78%) were registered with the father’s details. Of the births outside marriage which included the father’s details, 135 282 (58% of births outside marriage, 74,4% of joint registrations), showed the father and mother living at the same address.

By contrast with the above figures, the number of parental responsibility orders made by the courts in England and Wales is also surprisingly small. In 1996, for example, the courts made only 5 5087 parental responsibility orders. The low take-up rate probably results from public ignorance of the law. Indeed, there is evidence that many people simply assume that an unmarried father has parental responsibility, especially if the father and mother have jointly registered the child’s birth. Case law on parental responsibility orders is extensive, but it would appear that, provided that the father has shown the requisite attachment and commitment to the child, then the court will regard it as being prima facie in the interests of the child’s welfare that the order be made. Accordingly, acrimony between the parents is not a necessary bar to the making of an order nor should much weight be given to the mother’s objection to an order being made because of the consequential power it would give the father. In short, a section 4 parental responsibility order is normally made, the only reported example of refusals being where the father is violent.

Apart from the paramount `welfare principle', the principle of delay being prejudicial to the welfare of the child and the principle of minimum judicial intervention, there are no specific criteria governing applications by unmarried fathers for parental responsibility. English case law has suggested that the court will consider : the degree of commitment which the father has shown towards the child (as evidenced by factors such as financial support, pursuing contact, keeping arrangements, being present at the child's birth, being named as the father on the child's birth certificate, and so on); the degree of attachment existing between the father and the child (while noting that the father of a very young child may have had little opportunity to develop such a relationship); the reasons for the father's application.

The English position has not gone uncriticised and further changes to the English Law in this regard are now under discussion. In March 1998, the Lord Chancellor's Department issued a consultation paperseeking views on (inter alia) whether it is right in principle to make it easier for unmarried fathers to acquire parental responsibility for their children and if so, whether automatic parental responsibility should be limited to certain categories of unmarried fathers (such as, for example, those who jointly register the child's birth with the mother or those who are cohabiting with the mother).

When considering the reform of illegitimacy the Scottish Law Commission concluded, as the English Law Commission eventually did, that it was not desirable to confer automatic parental rights on unmarried fathers. This recommendation was based on four arguments which the Scottish Law Commission later summarised as follows:

1. It would be inappropriate to give parental rights to fathers where the child had resulted from a casual liaison or even from rape.

2. Automatic parental rights for unmarried fathers would cause offence to mothers who had struggled alone to bring up their children with no support from the fathers.

3. Mothers of children born outside marriage might feel at risk from interference and harassment by unmeritorious fathers in matters connected with the upbringing of the children.

4. The unmarried father would have to be involved more often in care or adoption
5. proceedings even in cases where it would be inappropriate to give any weight to his views.

However, unlike its English counterpart, the Scottish Law Commission, when considering the further reform of child law at a later stage felt that the arguments against automatic rights and responsibilities should be re-examined in view of the increasingly large category of fathers excluded from a full parental relationship. Addressing these four arguments the Scottish Law Commission observed:
1. It was not self-evident that where a child is born as a result of a casual liaison the unmarried father should not have parental responsibility. As the Scottish Law Commission put it: ‘... some fathers and some mothers will be uninterested but that is no reason for the law to encourage and reinforce an irresponsible attitude’.

2. The second argument that conferring automatic parental responsibility on the unmarried father would cause offence to mothers struggling to bring up their children without the support of fathers was not thought to be reason enough to deny all unmarried fathers parental responsibility. The Scottish Commission observed: ‘The important point in all these cases is that it is not the feelings of one parent in a certain type of situation that should determine the content of the law but the general interests of children and responsible parents’.

3. The Scottish Law Commission dismissed the argument that there might be a risk of interference and harassment by the father if he had automatic parental responsibility, essentially because it was a parent-centred rather than a child-centred approach. In the Scottish Law Commission’s view it ‘seems unjustifiable ... to have what is in effect a presumption that any involvement by an unmarried father is going to be contrary to the child’s best interests’. In any event the Scottish Law Commission did not believe that the risk of harassment would be increased by the proposed change of law.

4. The fourth argument that it is undesirable to involve all unmarried fathers in care and protection proceedings was countered by pointing out that it could equally be said to be a grave defect that a man who has been the social father to the child should have no legal position in such matters merely because he and the child’s mother have not married each other.

The Scottish Law Commission concluded that at a time when the parental position was being recast in terms of responsibility, the existing law might be seen as encouraging irresponsibility in unmarried fathers: `The existing law discriminates against unmarried fathers in two ways. It treats them less favourably than fathers who are or have been married to the child's mother: and it treats them less favourably than unmarried mothers. The increase in the number of co-habiting couples in recent years means that it is no longer possible, if it ever was, to assume that almost all unmarried fathers are irresponsible, uninterested in their children, or undeserving of a legal role as parent. By discriminating against unmarried fathers the law may foster irresponsible parental attitudes which it ought to be doing everything possible to discourage.' The Scottish Law Commission recommended, in its Report on Family Law in 1992 that, in the absence of a court order regulating the position, both parents of a child should have parental responsibilities and rights whether or not they are or have been married to each other.

This recommendation of the Scottish Law Commission was not, however, ultimately accepted by the legislature in Scotland : the Children (Scotland) Act 1995 does not confer parental rights and responsibilities on the unmarried father automatically, but provides for the acquisition of such rights and responsibilities either by application to court or by entering into a registered agreement in prescribed form with the mother. In considering whether or not to make an order conferring parental rights and responsibilities on the unmarried father, the court `shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all'. The court is also obliged, taking account of the child's age and maturity, to give the child (as far as practicable) the opportunity to indicate whether he wishes to express his views and, if so, to express such views, as also to have regard to such views as the child may express.

By contrast to the legal position in England and Scotland, the Australian law now treats all parents equally, irrespective of marital status. Under amendments made in 1987 to the Family Law Act 1975, all parents had equal rights of guardianship in respect of their children. These have now been replaced by provisions expressly dealing with parental responsibility. Section 61C of the 1975 Act, as inserted by the Family Law Reform Act 1995, provides as follows :

`(1) Each of the parents of a child who is not 18 has parental responsibility for the child;

(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affects, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

(3) Subsection (1) has effect subject to any order of a court for the time being in force . . .'

4.2.3 Comments and submissions received
The Issue Paper, the worksheet utilised at the workshops held nationwide to discuss the Issue Paper, and the focus group discussion paper all posed the question as to whether a comprehensive children’s statute should change the existing legal position of the unmarried father in South Africa, as set out in the Natural Fathers of Children Born Out of Wedlock Act 86 of 1997 and the Adoption Matters Amendment Act 56 of 1998. The Issue Paper posed the further (but related) question as to whether or not the fundamental assumption underlying the former Act (namely, that an unmarried father must go to court in order to be authorised to exercise any parental rights and responsibilities in respect of his child other than the duty to pay maintenance) is correct.

At the workshops held to discuss the Issue Paper, the main views expressed by participants were as follows (individual responses appearing in the first column and group responses in the second column:

Some of the specific suggestions made by workshop participants for improving the status quo in respect of children born out of wedlock were:

· There should be some sort of ‘track record’ of parents of children born out of wedlock.

· The present system is perceived as being fragmented in the sense that it is difficult to establish the identity of unmarried fathers who renege on their maintenance obligations. The current system is also perceived as having the effect of alienating biological fathers from their children, some participants pointing out that it is important for children (especially older children ‘seeking their own identity’) to ‘be able to know’ who their parents are, regardless of whether the parents are/were married to each other.

· The legal system should place equal emphasis on the rights and responsibilities of fathers of children born out of wedlock. In this regard, it was suggested that the maintenance responsibility of such fathers should be ‘linked’ to the ‘right of access to and custody of’ the child.

From the written submissions on the Issue Paper, it appears that respondents were (more or less equally) divided on the question as to whether the existing legal position in respect of unmarried fathers should be revisited and/or changed.

On the one hand, there were respondents who were of the view that the existing legal position should not be changed. In his written submission, Mr D S Rothman, drawing on his own longstanding experience as a commissioner of child welfare, argued that the abovementioned legislation goes far enough and, insofar as such legislation retains a ‘maternal preference’, this should remain. He was convinced that statistics would show that, as far as the care and protection of children are concerned, 80% of responsibility for the care and protection of children is borne by mothers, as opposed to only 20% by fathers, where marriages do not exist or have ceased to exist. In his view, fathers in such cases ‘should not be placed in a better position than mothers’.

Other respondents, however, believed that the legal position of fathers of children born out of wedlock should indeed be revisited. According to the Natal Society of Advocates, to the extent that there is still differentiation in South African law between children born in and out of wedlock, such differentiation should be eradicated – all fathers, married or otherwise, should automatically have ‘the right to exercise parental rights’ (at least such rights as guardianship and access), unless they are specifically deprived of these rights by a court of law. The Durban Committee of Family Lawyers (and, it would seem, the Durban Child and Family Welfare Society) argued that there should be an automatic right of access by the unmarried father to the child, and by the child to the father, without the necessity of a court application. The Johannesburg Institute of Social Services also submitted that all parents, whether married or unmarried, should have ‘equal rights’ in respect of their children, unless one of them has harmed or injured the child or neglected his or her parental duty. Dubbing it ‘unfair’ to require an unmarried father to approach the court to obtain parental rights, while the mother automatically has all such rights, the ATKV emphasise the need for ‘balance’ between the rights of fathers and mothers and the need to place the rights of the child first and foremost.

Prof C J Davel referred to the acknowledgement by the Constitutional Court of the deep disadvantage experienced by single mothers in our society as support for her argument that the fundamental assumption underlying the 1997 Act is indeed correct. She further submitted that, even if the position of unmarried fathers were to be revisited, this should not form part of the current investigation.

Participants at the focus group discussion, and respondents to the focus group discussion questionnaire, were also seriously divided on the first question set out above. One group of participants was of the opinion that unmarried fathers should be able to apply to be ‘formally registered as fathers’ and that, once registered, such a father should be informed about any pending adoption of his child and be given the opportunity to adopt that child – in essence, this is the present legal position in terms of the Adoption Matters Amendment Act 56 of 1998. This group could, however, reach no consensus as to whether the existing legal rights of natural fathers should be extended. Another group considered the position of the unmarried father in terms of customary law which apparently requires that the unmarried father should first ‘pay damages’ for impregnating the woman before he can acquire certain parental responsibilities. This group argued that the biological father of a child born out of wedlock should not automatically obtain parental responsibilities, but should enjoy certain preferences. If, for example, the natural father has shown a keen interest in the child’s life, then he should be given preference over ‘the extended family’.

Some respondents based their arguments (for either change or no change to the present legal position of the unmarried father) on children’s rights arguments, especially the right of the child not to be discriminated against on the grounds of the marital status of his or her parents. In this context, Mr D S Rothman opined that the current legislation is complex and ‘rather draconian to say the least, so much so that it has become rather "mother-unfriendly".’ As in his submissions on the Issue Paper, Mr Rothman once again argued that the percentage of unmarried fathers having a real interest in their children born out of wedlock is proportionally rather small, in contrast to the legislative ‘fuss’ made over them and, in view hereof, that the present legislation is ‘out of step with reality’. According to Mr Rothman, the granting of rights to a father who would ‘ordinarily’ acquire such rights through marriage would be to create a precedent whereby the institution of marriage would become superfluous, ultimately having the effect that children would be deprived of the ‘natural family home that comes with marriage’.
Ms D K Mathakgane of the Department of Developmental Social Welfare (Kimberley), as also Ms Gallinetti of the Legal Aid Clinic (University of Cape Town), were of the view that the existing legal position of the unmarried father should remain unchanged, the latter pointing out that in customary law more is required to obtain parental rights than merely being a biological parent. This view was shared by Professor Davel who (as in her submissions on the Issue Paper) argued that the maternal preference implicit in the existing legislation can be justified as it does not give rise to ‘substantive equality’. On the other hand, Mrs S M van Tonder of SANCA (Kimberley) was of the view that the marital status of parents should not effect their parental responsibilities and that, by ‘discriminating’ against unmarried fathers, the law may foster irresponsible parental attitudes which ought to be discouraged by all possible means.

The focus group discussion paper also posed the following questions:

If the comprehensive children’s statute does change the existing legal position of the unmarried father in South Africa, should the new legislation simply provide (in addition to the possibility of an application to court) for the sharing of parental responsibility between unmarried parents by formal agreement, without the necessity of a fully fledged application to court (as, for example, in the UK Children Act 1989, the Children (Scotland) Act 1995 and the revised draft of the Kenya Children Bill of 1998)? Or should the legislation go further by providing for automatic parental responsibility for all unmarried fathers (as is the case in Australia)? What would the practical implications of such provisions be?

The consensus opinion of participants in the focus group discussion and of the vast majority of respondents to the focus group discussion questionnaire was that automatic parental responsibilities for unmarried fathers are not acceptable. So for example, Ms Gallinetti opposed the automatic granting of parenting responsibility to all unmarried fathers mainly on the grounds of the vulnerable position of women in South African society and the need to respect customary law practices. So too, Ms Masoyane argued that the practical implication of providing for automatic parental responsibility for all unmarried fathers may be disruption and confusion caused in the lives of the children involved by the ‘interference of the unmarried father’.

Other respondents who were opposed to the idea of conferring automatic parental responsibility on all unmarried fathers were Professor C J Davel, Ms Wilona Petersen , Ms L Opperman and her colleagues at the Christelik-Maaskaplike Raad (Bellville), Ms O M Mogoane of the Department of Health and Welfare (Nylstroom), Ms V K Mathakiane of the Department of Developmental Social Welfare (Kimberley) and Mr D S Rothman.

Mr Rothman pointed out that the mother of a child born out of wedlock may end up marrying someone else and, in fact, in practice it often happens that her husband wishes to adopt her child who now lives with them and often is maintained by him. Access to the child and the exercise of parental responsibility by the unmarried father could cause a strain on the marriage, prejudicing the child. Mr Rothman expressed the view that, in all instances where children are born out of wedlock, ‘mothers should retain the edge, as it were’, and that fathers should not be given ‘an advantage over mothers’ unless a court decides otherwise. In support of this view, Mr Rothman stated that South African maintenance courts are ‘flooded’ with mothers struggling to gain financial support for their children from the fathers of such children.

A number of respondents were of the view that, while the law should not confer parental rights and responsibilities on the unmarried father automatically, it should provide for the acquisition of such rights and responsibilities by the unmarried father, not only by application to court, but also by entering into an agreement in some prescribed format with the mother of the child concerned. Other respondents were, however, of the view that any agreement between unmarried parents for the sharing of ‘parental responsibility’ should be scrutinised by a court in order to ensure that such agreement is in the best interests of the child concerned and, if so, should be sanctioned by court order.

In its submission, the National Coalition for Gay and Lesbian Equality referred to the judgments of the Constitutional Court in the case of Fraser v Children’s Court, Pretoria North, and Others in support of its view that family law could no longer be based on ‘implistic’ distinctions between married and unmarried persons – ‘in modern society, stable relationships between unmarried parents are no longer exceptional’. The Coalition was, however, aware of the need to be ‘acutely sensitive to the deep disadvantages experienced by single mothers in our society’, in the words of Mahomed DP in the Fraser case.

According to the Coalition, the Natural Fathers of Children Born out of Wedlock, 86 of 1997, while it recognises the inherent problems in the automatic granting of parental responsibility to all unmarried fathers, fails to acknowledge the role played by those unmarried fathers who are supportive and who play an integral role in the development and upbringing of their children. In order to address this lacuna, the Coalition proposed the following formulation:

‘A child’s best interests are best served by vesting unmarried fathers with automatic parental responsibility when –

(a) the father has registered the child’s birth jointly with the mother and has lived with her for a continuous period of no less than one year subsequent to the registration;

(b) with the informed consent of the mother, the father has been caring for the child as if he has parental responsibility for a period of no less than one year, whether or not he has been living with the mother of the child; or

(c) the father is the de facto primary caregiver of the child and –
(i) the biological mother has expressed no interest in assuming her parental responsibility in relation to the child concerned; and

(ii) the biological mother is deceased; or

(iii) the biological mother’s whereabouts are unknown or cannot be practicably ascertained.’

The Coalition also expressed the view that the new legislation should indeed allow for the sharing of parental responsibility between unmarried parents by formal agreement, without the necessity of an application to court. The registering official should be obliged to inform both parties of the legal implications of such an agreement and of the legal mechanisms available to terminate the agreement. The formulation proposed by the Coalition reads as follows:

‘If the unmarried father has registered the child’s birth jointly with the mother, he should be informed at such registration of his right to enter into a parental responsibility agreement with the mother, subject to her consent.

A mother’s consent may not be unreasonably withheld in relation to the registration of parental responsibility agreements. If such consent has been unreasonably withheld, an unmarried father may approach an appropriate forum for relief. Unless the best interests of the child determine otherwise, such a forum must issue an order granting him parental responsibility.’

At the focus group discussion, several of the groups of participants suggested that the sharing of parental responsibility between unmarried parents should be arranged through a standard formal agreement which is lodged with the court or some other appropriate structure. Emphasis was placed upon the practical workability of any legislative provisions in this regard.

Further (related) questions posed by the focus group discussion paper were as follows:

If it is considered undesirable to confer automatic parental responsibility upon all unmarried fathers, should automatic parental responsibility be limited to certain categories of unmarried fathers, such as a father who is living with the mother at the time of the child’s birth, or a father who registers the child’s birth jointly with the mother, or a father who voluntarily acknowledges himself to be the father of the child in the manner provided for in the Adoption Matters Amendment Act 56 of 1998 (or in some other manner)? Are there other situations in which automatic parental responsibility should be conferred on an unmarried father? What would the practical implications of such provisions be?

Participants in the focus group discussion could not reach consensus on these questions, mainly because of the opposition to the idea of automatic parental responsibility for all unmarried fathers.

Professor Davel was in favour of the present legal position ‘where the best interests of the child are of paramount importance’. In her view, unmarried fathers should bring applications for parental responsibility or components thereof to the proposed new family court. According to Mr D S Rothman, parental responsibility for unmarried fathers should never be automatic unless the mother agrees, is deceased, is missing or is decreed to be incompetent by a court of law.
Ms Wilona Petersen supported the limitation of automatic parental responsibility to the following categories of unmarried fathers :

· fathers who are living with the mother at the time of the child’s birth;
· fathers who register the child’s birth jointly with the mother; and
· fathers who voluntarily acknowledge themselves to be such.

Mrs S M van Tonder also supported the conferring of automatic parental responsibility on an unmarried father who voluntarily acknowledges himself to be the father of the child, whether or not such father is living with the mother at the time of the child’s birth. Similarly, Ms C Grobler from the Office of the Family Advocate and Ms O M Mogoane were in favour of automatic parental rights and responsibilities for certain categories of unmarried fathers, the categories being similar to those contained in the Adoption Matters Amendment Act.
Some respondents were of the view that certain categories of unmarried fathers should not automatically have parental responsibility in respect of their children – this would include situations where the father has been convicted of the rape of the mother and where the child was conceived as a result of an incestuous relationship with the mother.

4.2.4 Evaluation and Recommendations
The project committee recommends that the new legislation should provide for a procedure whereby an unmarried father can acquire parental responsibility by entering into an agreement with the mother, which agreement must be in the prescribed form and must be registered with the appropriate forum and in the prescribed manner. There should, however, be certain exceptional cases (such as, for example, where the child was conceived through rape or incest) where this procedure would not be open to the unmarried father. Failing a parental responsibility agreement with the mother, the unmarried father who does not have automatic parental responsibility should, in the view of the project committee, be able to obtain parental responsibility or certain components thereof by making application to the appropriate forum and satisfying such forum that this will be in the best interests of the child concerned.

The project committee further recommends that certain categories of unmarried fathers should be vested automatically with parental responsibility. These categories should include the following :

· the father who has acknowledged paternity of the child and who has supported the child within his financial means (or has expressed his willingness to do so) and who has (if reasonably practicable) regularly visited or communicated with the child;
· the father who, subsequent to the child’s birth, has cohabited with the child’s mother for a period or periods which amount to not less than one year;
· the father who, with the informed consent of the mother, has cared for the child on a regular basis for a period or periods which amount to not less than twelve months, whether or not he has cohabited with or is cohabiting with the mother of the child.

The project committee failed to reach agreement on other categories of unmarried fathers who should be vested with automatic parental responsibility.

4.3 The Acquisition of Parental Responsibility by Persons Other Than Biological
Parents

4.3.1 Current South African Law and Practice
As is well illustrated by the tables set out in paragraph 1.1 above, there are many cases in South Africa in which children are cared for and brought up wholly or partly by persons who are not their biological or legal parents. Most non-biological caregivers have no automatic legal relationship with the child, although relatives, foster parents, step-parents, de facto step-parents and other persons may all be, in a sense, ‘social parents’ to the child. As a general rule, if any such ‘social parent’ wants a legal relationship with the child in question, he or she must obtain a court order in this regard.

A ‘social parent’ can, of course, be placed in exactly the same legal position vis-à-vis the child as a biological parent through the medium of adoption. The effect of an order of adoption is, however, completely to sever the legal relationship between the child and any person who was such child’s parent (either biological parent or adoptive parent) immediately prior to the adoption, as well as between the child and all the relatives of such parents. It is only in the case where the ‘new’ spouse of a child’s parent adopts the child (a so-called ‘step-parent adoption’), that the legal relationship between the child and the parent in question continues to exist. For biological parent(s), adoption is thus an extreme measure.

Apart from an adoption order made by a children’s court in terms of chapter 4 of the Child Care Act 74 of 1983, a ‘third party’ can also apply to the High Court, in its capacity as the upper guardian of all minors within its area of jurisdiction, to award access to, or custody of guardianship of, a child, provided that such an order is regarded by the court as being in the best interests of the child concerned. Upon the death of either parent of a legitimate or legitimated minor child, the other parent, in the ordinary course of events, becomes the sole natural guardian of the child concerned. The first-dying parent is not entitled, under current South African law, to remove or to encroach upon the surviving parent’s ‘parental power’ by appointing a testamentary guardian in his or her will, unless the former parent has been awarded sole guardianship of the minor child in question by a competent court. A parent who is the ‘sole natural parent’ of a minor child (viz, in most cases, the surviving parent of a legitimate or legitimated minor child, as also the mother of an extra-marital child) is entitled to appoint a testamentary guardian to succeed him or her as the guardian of the child.

As stated above, the death of one parent normally vests full ‘parental power’ in the other parent. What is the current legal position of a minor child when both his or her parents have died (or, in the case of an extra-marital minor child, when his or her major mother or the guardian of his or her minor mother has died) and no testamentary guardian or custodian has been duly nominated and appointed? Such a minor child has no legal or natural guardian and hence there is nobody who can legally care for an control the child’s daily life, administer the child’s property or supplement the child’s limited capacity to perform juristic acts or to litigate. As far as the administration of the child’s property is concerned, a so-called ‘tutor dative’ may be appointed by the Master of the High Court, acting in terms of the Administration of Estates Act 66 of 1965. A ‘tutor dative’ appointed by the Master in this way only has the authority to administer the minor’s property and, if applicable, to carry on a business or undertaking on behalf of the minor. The day to day care of the minor and the control of the minor’s person will have to be provided for in some other manner, either by making an application to the High Court for the appointment of a custodian, or by making use of the provisions of the Child Care Act 74 of 1983 concerning the custody of ‘a child in need of care’.

As stated above, stepparents in South African law do not automatically acquire any parental rights or obligations in respect of their stepchildren. The effect of a children’s court order placing a child in the custody of any person other than such child’s parent or legal guardian (i.e. a foster care order) is to divest the child’s parents or legal guardian (as the case may be) of ‘the rights of control over and custody of the child’, and to vest those ‘rights’ in the foster parent concerned. A parent retains his or her common-law ‘right of reasonable access’ to the child, however. Especially included in the parental ‘rights’ thus transferred are the right to punish and to exercise discipline. Not included, on the other hand, are (a) the power to deal with the child’s property; (b) the power to consent to the child’s marriage; and (c) the power to consent to an operation or medical treatment entailing serious danger to life. It has been pointed out that these legal provisions limit the decision-making capabilities of foster parents and expose them to interference from the parents of the child, thereby prejudicing the child.

In its investigation entitled ‘The Granting of Visitation Rights to Grandparents of Minor Children’ (ultimately broadened to encompass ‘Access to Minor Children by Interested Persons’), the South African Law Commission came to the conclusion that ‘the present common law position in terms of which parents have the exclusive say to decide to whom and under what circumstances to grant access or visitation rights, does not in all cases meet the current needs of society’. The Commission pointed out that there may be circumstances where a ‘special relationship’ between a child and a non-parent develops over time, sometimes requiring that ‘visitation rights’ to the child be given to such other person. Moreover, with the increase in ‘extended families’ following divorce and remarriage, a step-parent may develop a special relationship with the stepchild – should the biological parent then die or be divorced from the step-parent, it may be necessary to grant ‘visitation rights’ in respect of the child to the step-parent concerned. So too, in the case of adoption, there may be circumstances in which the best interests of the child would be served by granting ‘visitation rights’ to a person with whom the child has a special relationship. Following international trends in this regard, the Law Commission proposed legislation to the effect that, if a grandparent of a minor child or any other person who alleges that there exists between him or her and a minor child any particular family tie or other relationship which renders it desirable in the child’s interest that he or she should have access to the child, is denied access to the child by the person with parental authority over the child, such grandparent or other person may apply to the court for an order granting him or her access to the child. The court may refer any such application to the Family Advocate for investigation and recommendation and shall not grant any such order unless the court is satisfied that this serves the best interest of the child in question. At the time of writing, however, the legislation recommended by the Law Commission had not yet made its appearance.

4.3.2 Comparative law
In other legal systems, too, a person other than a biological parent of a child can obtain ‘full’ parental rights and responsibilities in respect of such child by adopting him or her. As in South Africa, however, the effect of an adoption order is to completely sever the legal relationship existing between the adopted child and his or her biological parents or previous adoptive parents, as also between the child and the relatives of such parents. Thus, as is the case in South Africa, adoption is an extreme measure as far as the biological parent or parents of a child are concerned.

As regards the position of stepparents, the general rule in other legal systems is that stepparents do not automatically require parental responsibility in respect of their stepchildren. Under English law, for example, a stepparent in relation to whom ‘the child is a child of the family’ is entitled, without obtaining the leave of the court, to apply for a residence or contact order in respect of the child, and the granting of residence automatically confers parental responsibility for the child upon such stepparent while the residence order remains in force. In addition, any person with whom the child has lived for three years can apply for a residence or contact order without obtaining the leave of the court to do so. It would appear that this latter possibility is primarily intended for foster parents, although it could of course also be utilised by the unmarried partner of the child’s biological (custodial) parent. Despite their eligibility to apply for residence and contact orders, stepparents (and other non-parents) do not thereby acquire a full legal relationship with the child:

‘The parental responsibility they (stepparents) assume is not the same as that held by parents: guardians cannot be appointed, consent to adoption cannot be withheld, the child cannot succeed on the stepparent’s intestacy, and parental or court approval is required for a change in the child’s surname. A residence order formalises the step-parent’s relationship with the child and gives that person standing in relation to local authorities, but in practical terms offers little more than the statutory right to do what is reasonable for a child. For stepparents it may seem considerably less desirable than adoption.’

When a residence order is obtained by a stepparent, the non-custodial natural parent does not lose any parental ‘status’ or responsibility. His or her parental rights and responsibilities remain and he or she may continue to play a substantial part in the child’s life, albeit sharing parental responsibility with a third person. This is, of course, the value of residence over adoption for both the non-custodial natural parent and the ‘reconstituted’ family. But there are also disadvantages. A residence order may be difficult for the stepparent to obtain, as the court must be satisfied that making such order will be better for the child than not making an order at all. In the event that such order is granted, the stepparent only gains a limited legal relationship with the child for as long as the residence order remains in force.

In a White Paper on adoption law reform published in 1993 by the Lord Chancellor’s Department, it is proposed that a stepparent be able to enter into a parental responsibility agreement with the natural person to whom he or she is married, with the consent of the other natural parent, and thereby acquire parental responsibility for the child concerned. If the other parent’s consent is not forthcoming, the stepparent could apply for a parental responsibility order in respect of the child. Ultimately, if adoption proved to be the best course, the stepparent alone, rather than the married couple jointly, could apply for the order. This would remove the present absurdity of a natural parent having to apply to adopt his or her own child.

In Scotland, parental responsibility also automatically follows the making of a residence order but, in addition, the Children (Scotland) Act 1995 allows a court to make in favour of a stepparent an order conferring upon such parent some or all of the parental rights and parental responsibilities in relation to the child concerned. A similar position exists in Australia.

Some authors have argued that a plausible case can be made out for the automatic vesting of parental responsibility in the new marital partner of the care-giving parent as ‘it seems rather odd to treat stepparents as if they were complete strangers to the child, by according them no special status at all’. Such pleas for automatic parental status for stepparents have been resisted.
In Canada the definition of ‘parent’ has been extended beyond its traditional legal meaning of biological or adoptive parent to also include any person standing in loco parentis to a child. This broader definition of ‘parent’ governs both child support obligations and the right to seek custody or access. Every province in Canada, except Alberta and Quebec, has followed the federal lead and enacted legislation extending the definition of parent, at least for the purposes of child support. For example, the Ontario Family Law Reform Act 1978 provides that a ‘parent’ includes a ‘person who has demonstrated a settled intention to treat a child as a child of his or her family’. The effect of this type of legislation has been to give persons who are standing in the place of parents, such as stepparents, the right to seek custody or access after the termination of a relationship with a child’s biological parent.

In Ghana, any parent or family member of a child or any person ‘who is raising a child’ may apply to the Family Tribunal for custody of the child. Similarly, any parent or family member of a child or any person ‘who has been caring for a child’ may apply to a Family Tribunal for periodic access to the child. When making an order for custody or access, the Family Tribunal must consider the best interest of the child and the importance of a young child being with his or her mother, as also the following factors :

‘(a) the age of the child;

(b) that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents;

(c) the views of the child if the views have been independently given;

(d) that it is desirable to keep siblings together;

(e) the need for continuity in the care and control of the child; and

(f) any other matter that the Family Tribunal may consider relevant.’

Under the proposed new legislation in Kenya, a court may, on application, grant the custody of a child to the following persons: a parent; a guardian; any person who applies with the consent of a parent or guardian of a child and has had actual custody of the child for three months preceding the making of the application; any other person who can show cause why an order should be made awarding him or her custody of the child. Determining whether or not to make a custody order in favour of an applicant, the court must have regard to:

‘(a) the conduct and wishes of the parent or guardian of the child;

(b) the ascertainable wishes of the relatives of the child;

(c) the ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his home in the last three years preceding the application;

(d) the ascertainable wishes of the child;

(e) whether the child has suffered any harm or is likely to suffer any harm if the order were not made;

(f) the customs of the community to which the child belongs;

(g) the religious persuasion of the child;

(h) whether a care order, or a supervision order, or a personal protection order has been made in relation to the child concerned and whether those orders remain in force;

(i) the circumstances of any sibling of the child concerned, and of any other children of the home, if any.’

In both England and Scotland the granting of a residence order, with its accompanying parental responsibility, can be applied for by foster parents and relatives alike. The apparent intention is the recognition and protection of well-established relationships, although in the case of relatives the potential for distortion of familial relationships is more profound. Both Acts insist on the ongoing nature of legal parenthood (‘parental responsibility’), even if the person with such responsibility is not living with or caring for the child in question. Consequently, if grandparents, for example, obtain a residence order and acquire parental responsibility in respect of the child, they cannot usurp the natural parents’ legal position. The natural mother and the father if they are married, are the only people to have, and keep, full legal parenthood. ‘This inclusive notion of legal parenthood protects the biological parent as, apart from adoption, a mother’s legal position can never be achieved by a social parent.’

In England, where a child has been with local authority foster parents for a short time, and the foster parents want to apply to court for a residence order in order to establish a more secure legal relationship with the child, they have to obtain the leave of the court as well as the consent of the local authority. This procedure protects the biological parents from any hasty applications by foster parents, and is intended to avert the danger that biological parents who are in difficulty will be deterred from seeking local authority help. However, the longer the fostering placement, the stronger becomes the foster parents’ case for legal recognition of their relationship with the child. Foster parents can apply for a residence order as of right if the child has been with them for three years or they have the consent of the parents. Some authors question whether residence will be enough, in the interest of both foster parents and child, if the placement becomes long term:
‘Residence can be revoked, has insufficient legal status and little social status as far as the child is concerned, and does not alter surnames or make the child anything other than a foster child. It gives neither security nor permanence to the child and does not demand a long-term commitment from the foster parents. It is at this point that an adoption application might be made’.

One solution proposed for this problem is what has been called an ‘inter vivos guardianship order’. This is effectively the middle ground in policy terms, strengthening the current residence order so as to provide a kind of ‘foster-plus’ status which yet falls short of adoption. It will extend the period of residence until the child is 18 years old, give foster parents the right to appoint a guardian in the event of their own deaths, and prohibit any application to revoke the order unless the leave of the court is obtained. This last provision is intended to enhance the feeling of permanence between foster parents or relatives and the child, yet at the same time the biological parents retain their formal legal attachment to the child. The proposal is yet to be implemented.

The position in New Zealand on the role of relatives and foster parents is rather different from that which prevails in England. There are few unifying treads and the law is found in disparate places. It would seem that greater emphasis is placed on the recognition of the variety of cultural approaches to parenting. Relatives in New Zealand may obtain parenting rights by applying for custody. Leave of the court is required before such an application can be made, which places relatives at a disadvantage compared with birth and stepparents. Relatives may sometimes be given parental responsibility in somewhat extreme circumstances. In exceptional cases, relatives (or others such as foster parents) may be appointed substitute guardians, with the parents being stripped of guardianship rights (but still retaining the ‘shell’ of parenthood). While court-appointed or testamentary guardians may be ‘removed’ at the discretion of the court, parents may be removed only if ‘for some grave reason’ they are unfit to be a guardian or are ‘unwilling to exercise the responsibilities of a guardian’. The bias in favour of the natural parent is therefore very strong.


**NOTE: Paper amended and consolidated up to here, rest to follow