AMENDED BILL: MAY 2005

REPUBLIC OF SOUTH AFRICA

 

 

CHILDREN’S BILL

 

 

(As introduced in the National Assembly as a section 76-Bill; explanatory summary of Bill published in Government Gazette No. of 2003) (The English text is the official text of the Bill)

 

(MINISTER OF SOCIAL DEVELOPMENT)

 

[B -2003]

 

 

030803se

BILL

To give effect to certain rights of children as contained in the Constitution; to stipulate certain principles relating to the care and protection of children [define the rights and responsibilities of children]; to define parental responsibilities and rights; to determine principles and guidelines for the protection of children and the promotion of their well-being; to regulate matters concerning the protection and well-being of children; to consolidate the laws relating to the welfare and protection of children; and to provide for matters connected therewith.

 

Objects of Act

2. The objects of this Act are―

(a) to give effect to the following constitutional rights of children:

(i) appropriate alternative care when removed from the family environment;

(ii) social services;

(iii) protection from maltreatment, neglect, abuse or degradation;

[(a)](b) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;

[(b)](c) to strengthen and develop community structures which can assist in providing care and protection for children;

(d) to promote the preservation and strengthening of families;

[(c)](e) to protect children from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical and moral harm or hazards;

[(d)](f) to provide care and protection to children who are in need of care and protection;

[(e)](g) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic; and

[(f)](h) generally, to promote the protection, development and well-being of children.

Conflicts with other legislation

3. (1) In the event of a conflict between a section of this Act and―

(a) other national legislation relating to the protection and well-being of children, the section of this Act prevails.

(b) provincial legislation relating to the protection and well-being of children, the conflict must be resolved in terms of section 146 of the Constitution; and

(c) a municipal by-law relating to the protection and well-being of children, the conflict must be resolved in terms of section 156 of the Constitution.

(2) In the event of a conflict between a regulation made in terms of this Act and –

(a) an Act of Parliament, the Act of Parliament prevails;

(b) provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and

(c) a municipal by-law, the conflict must be resolved in terms of section 156 of the Constitution.

(3) For the proper application of subsection (2) (b) the Minister must in terms of section 146(6) of the Constitution submit all regulations made in terms of this Act and which affect a province, to the National Council of Provinces for approval.

(4) In this section “regulation” means―

(a) a regulation made in terms of this Act; and

(b) a rule regulating the proceedings of children’s courts in terms of section 52(1).

Implementation of Act

4. (1) This Act must be implemented by organs of state in the national, provincial and, where applicable, local spheres of government subject to any specific section of this Act and regulations allocating roles and responsibilities, in an integrated, co-ordinated and uniform manner.

(2) Recognising that competing social and economic needs exist, organs of [the] state in the national, provincial and where applicable, local government must, in the implementation of this Act, take reasonable measures within [its] their available resources to achieve the progressive realisation of the objects of this Act.

Inter-sectoral implementation of Act

5. To achieve the implementation of this Act in the manner referred to in section 4(2), all organs of state in the national, provincial and, where applicable, local spheres of government involved with the care, protection and well-being of children must co-operate in the development of strategies aimed at co-ordinating the policies regarding and services delivered to children.

CHAPTER 2

GENERAL PRINCIPLES

General principles

6[5]. (1) The general principles set out in this section guide –

[(a) the passing of all provincial legislation, municipal by-laws and subordinate national legislation to the extent that such legislation and by-laws are applicable to children;]

(a)[(b)] the implementation of all legislation applicable to children, including this Act; and

(b)[(c)] all proceedings, actions and decisions by any organ of state in any matter concerning a child or children in general.

(2) All proceedings, actions or decisions in a matter concerning a child must –

(a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights, the best interest of the child standard set out in section 7 and the rights and principles set out in [Chapter 3 of] this Act, subject to any lawful limitation;

(b) respect the child’s inherent dignity;

(c) treat the child fairly and equitably; [and]

(d) protect the child from unfair discrimination on any ground, including on the grounds of the health status of the child or a family member of the child; and

(e) recognise a child’s need for development and to engage in play, leisure and recreational activities appropriate to the child’s age;

(3) If a matter concerning a child involves a selection between one parent and the other, or between one care-giver or person and another, there should be no preference in favour of any parent, care-giver or person solely on the basis of that parent, care-giver or person’s gender.

(4) If it is in the best interest of the child, the child’s family must be given the opportunity to express their views in any matter concerning the child.

(5) In any matter concerning a child –

(a) an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided; and

(b) a delay in any action or decision to be taken must be avoided as far as possible.

(6) A child, having regard to the age, maturity and stage of development of the child, and a person who has parental responsibilities and rights in respect of that child, where appropriate [person who has parental responsibilities and rights in respect of a child, and having regard to the age, maturity and stage of development of the child, the child as well where this is appropriate], must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.

Best interest of child standard

7[6]. (1) Whenever a provision of this Act requires the best interest of the child standard to be applied, the following factors must be taken into consideration where relevant:

(a) the nature of the personal relationship between –

(i) the child and the parents, or any specific parent; and

(ii) the child and any other care-giver or person relevant in those circumstances;

(b) the attitude of the parents, or any specific parent, towards –

(i) the child; and

(ii) the exercise of parental responsibilities or rights in respect of the child;

(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from –

(i) both or either of the parents; or

(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f) the need for the child –

(i) to remain in the care of his or her parent, family and extended family; and

(ii) to maintain a connection with his or her family, extended family, [tribe,] culture or tradition;

(g) the child’s –

(i) age, maturity and stage of development;

(ii) gender; and

(iii) background and any other relevant characteristics of the child;

(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i) any disability or chronic illness that a child may have;

(j)[(i)] the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(k)[(j)] the need to protect the child from any physical or psychological harm that may be caused by –

(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

(l)[(k)] any family violence involving the child or a family member of the child; and

(m)[(l)] which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.

(2) In this section "parent" includes any person who has parental responsibilities and rights in respect of a child.

[CHAPTER 3

CHILDREN’S RIGHTS]

Application

8[7]. (1) The rights which a child has in terms of this Act [Chapter] supplement the rights which a child has in terms of the Bill of Rights.

(2) All organs of state in any sphere of government and all officials, employees and representatives of an organ of state must respect, protect and promote the rights of children contained in this Act [Chapter].

(3) A provision of this Chapter binds a natural or a juristic person, if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

[Provisions of Chapter take precedence over other law

8. In the event of a conflict between a provision of this Chapter and any other legislation, the provision of this Chapter prevails except –

(a) to the extent that such other legislation is or could be interpreted as a limitation of general application on such provision that is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including those listed in section 36 (1) (a) to (e) of the Constitution; or

(b) as otherwise provided in section 3.]

Best interest of child paramount

9. (1) In all matters concerning the care, protection and well-being of a child the standard referred to in section 28 (2) of the Constitution [and section 6 of this Act] that the child’s best interest is of paramount importance, must be applied.

(2) When the best interest of the child standard must be applied, the factors stipulated in section 7 of this Act must be taken into consideration where relevant.

Child participation

10. Every child capable of participating meaningfully in any matter concerning that child has the right to participate in an appropriate way [in those proceedings] and views expressed by the child must be given due consideration.

[Rights of children

11. Every child has the right –

(a) to a name and a nationality from birth;

(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;

(c) to basic nutrition, shelter, basic health care services and social services;

(d) to be protected from maltreatment, neglect, abuse or degradation;

(e) to be protected from exploitative labour practices;

(f) not to be required or permitted to perform work or provide services that―

(i) are inappropriate for a person of that child's age; or

(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35 of the Constitution, the child may be detained only for the shortest appropriate period of time, and has the right to be –

(i) kept separately from detained persons over the age of 18 years; and

(ii) treated in a manner, and kept in conditions, that take account of the child's age;

(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and

(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.

(2) A child’s best interests are of paramount importance in every matter concerning the child.]

Children with disability or chronic illness

11. (1) In any matter concerning a child with a disability or chronic illness due consideration must be given to―

(a) providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community;

(b) providing the child with special care; and

(c) providing the child with the necessary support services.

(2) A child with a disability or chronic illness has the right not to be subjected to medical, social or cultural practices that are detrimental to his or her health, well-being or dignity.

[Harmful] Social and cultural practices

12. (1) Every child has the right not to be subjected to [harmful] social and cultural practices which are detrimental to [affect] the well-being, health or dignity of the child.

(2) Every child –

(a) below the minimum age set by law for a valid marriage has the right not to be given out in marriage or engagement; and

(b) above that minimum age has the right not to be given out in marriage or engagement without his or her consent.

(3) [Female] Genital mutilation or the circumcision of female children [as a cultural practice] is prohibited.

(4) Virginity testing, including virginity testing as part of a cultural practice, is prohibited.

(5)[(4)] Taking into consideration the child's age, maturity and stage of development, every male child has the right [–(a)] to refuse circumcision[; and

(b) not to be subjected to unhygienic circumcision.

(5) Every child has the right –

(a) to refuse to be subjected to virginity testing, including virginity testing as part of a cultural practice; and

(b) not to be subjected to unhygienic virginity testing].

(6) A male child that was subjected to circumcision against his will may lay a charge of assault, indecent assault or assault with the intent to do grievous bodily harm, as the case may be, against―

(a) the person that performed the circumcision; or

(b) a person that is under an obligation to protect that child from maltreatment, abuse or degradation and failed to fulfil this obligation.

Information on health care

13. Every child has the right to―

(a) have access to information on health promotion and the prevention of ill-health and disease, sexuality, and reproduction; [and]

(b) have access to information regarding his or her health status;

(c) have access to information regarding the causes of his or her health status; and

(d)[(b)] confidentiality regarding his or her health status and the health status of a parent, care-giver or family member, except when maintaining such confidentiality is not in the best interests of the child.

Access to courts

14. Every child has the right to bring, and to be assisted in bringing, a matter to a court, provided that matter falls within the jurisdiction of that court.

Enforcement of rights

15. (1) Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights or this Chapter has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.

(2) The persons who may approach a court, are:

(a) A child who is affected by or involved in the matter to be adjudicated;

(b) anyone acting in the interest of the child or on behalf of another person who cannot act in their own name;

(c) anyone acting as a member of, or in the interest of, a group or class of persons; and

(d) anyone acting in the public interest.

Responsibilities of children

16. Every child has responsibilities appropriate to the child’s age and ability towards his or her family, community and the state.

Age of majority

17. A child, whether male or female, becomes a major upon reaching the age of 18 years.

CHAPTER 3 [4]

PARENTAL RESPONSIBILITIES AND RIGHTS

Part 1

Acquisition and loss of parental responsibilities and rights

Parental responsibilities and rights

18. (1) A person may have either full or specific parental responsibilities and rights in respect of a child.

(2) The parental responsibilities and rights that a person may have in respect of a child, includes the responsibility and the right―

(a) to have custody of the child;

(b) to have access to the child;

(c) to act as the guardian of the child; and

(d) to contribute to the maintenance of the child.

(3) Subject to subsections (4) and (5), a parent or other person who acts as the guardian of a child must―

(a) administer and safeguard the child’s property and property interests;

(b) assist or represent the child in administrative, contractual and other legal matters; or

(c) give or refuse any consent required by law in respect of the child, including―

(i) consenting to the child’s marriage;

(ii) consenting to the child’s adoption;

(iii) consenting to the child’s departure or removal from the Republic;

(iv) consenting to the child’s application for a passport; and

(v) consenting to the alienation of encumbrance of any immovable property of the child.

(4) Whenever more than one person have guardianship of a minor child, each one of them is competent, subject to subsection 5 or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.

(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child shall be necessary in respect of consenting to the matters set out in subsection (3)(c).

Parental responsibilities and rights of mothers

19. (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

(2) If―

(a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and

(b) the biological father of the child does not have guardianship in respect of the child,

the guardian of the child’s biological mother is also the guardian of the child.

[(2) If the biological mother of the child is an unmarried child and the child’s father does not have full parental responsibilities and rights or has no parental responsibilities and rights in respect of the child, the guardian of that mother has those parental responsibilities and rights in respect of the child which that guardian has in respect of that mother.]

(3) This section does not apply in respect of a child who is the subject of a surrogacy agreement.

Parental responsibilities and rights of married fathers

20. The biological father of a child has full parental responsibilities and rights in respect of the child―

(a) if he is married to the child’s mother; or

(b) if he was married to the child’s mother [her] at―

(i) the time of the child’s conception;

(ii) the time of the child’s birth; or

(iii) any time between the child’s conception and birth.

Parental responsibilities and rights of unmarried fathers

21. (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child [―

(a) if at any time after the child’s birth he has lived with the child’s mother –

(i) for a period of no less than 12 months; or

(ii) for periods which together amount to no less than 12 months;

(b)] if he, regardless of whether he has lived or is living with the mother, has contributed or has attempted to contribute in a bona fide manner towards expenses in connection with the maintenance of the child [cared for the child with the mother’s informed consent –

(i)] for a period of no less than 12 months [; or

(ii) for periods which together amount to no less than 12 months].

(2) This section does not affect the duty of a father of a child to contribute towards the maintenance of the child.

(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions imposed under subsection (1), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.

(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.

(4) When this Act comes into operation, a biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20 or in terms of a court order, acquires full parental responsibilities and rights in respect of the child in accordance with subsection (1) regardless of whether the child was born before or after the commencement of this Act.

Parental responsibilities and rights agreements

22. (1) Subject to subsection (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with―

(a) the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or

(b) any other person having an interest in the care, well-being and development of the child.

[(1) Subject to subsection (2), the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 may enter into an agreement with the mother or other person who has parental responsibilities and rights in respect of the child, providing for the acquisition by the father of such parental responsibilities and rights in respect of the child as are set out in the agreement.]

(2) The mother or other person who has parental responsibilities and rights in respect of a [the] child may only confer by agreement upon a person contemplated in subsection (1) [the biological father of the child] those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such agreement.

[(3) Only the High Court may confirm a parental responsibilities and rights agreement that relates to the guardianship of a child.]

(3)[(4)] A parental responsibilities and rights agreement must be in the format and contain the particulars prescribed by regulation.

(4)[(5)] Subject to subsection (6)[(3)], a parental responsibilities and rights agreement [(a)] takes effect only if―

(a)[(i)] registered with the family advocate; or

(b)[(ii)] made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement.

(5) Before registering a parental responsibilities and rights agreement as contemplated in subsection (4)(a) or before making a parental responsibilities and rights agreement an order of the High Court, a divorce court or a children’s court as contemplated in subsection (4)(b), the family advocate or the court concerned, as the case may be, must be satisfied that the parental responsibilities and rights agreement concerned is in the best interest of the child that the agreement relates to.

(6) (a) A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated only by the family advocate on application―

(a) by a person having parental responsibilities and rights in respect of the child;

(b by the child, acting with leave of the court; or

(c) in the child’s interest by any other person, acting with leave of the court.

(6) (b) A parental responsibilities and rights agreement made by an order of the High Court, a divorce court in a divorce matter or the children’s court [; and (b)] may be amended or terminated only by an order of the High Court, a divorce court or a children’s court on application―

(a)[(i)] by a person having parental responsibilities and rights in respect of the child;

(b)[(ii)] by the child, acting with leave of the court; or

(c)[(iii)] in the child’s interest by any other person, acting with leave of the court.

(6) Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.

Assignment of parental responsibilities and rights to interested person by order of court

23. (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce cases or the children’s court for an order [assigning to the applicant full or any specific parental responsibilities and rights in respect of the child] granting to the applicant, on such conditions as the court may deem necessary―

(a) access to the child; or

(b) custody of the child.

[(2) Only the High Court may issue an order that relates to the guardianship of a child.]

(2)[(3)] When considering an application contemplated in subsection (1), the court must take into account –

(a) the best interest of the child;

(b)[(a)] the relationship between the applicant and the child, and any other relevant person and the child;

(c)[(b)] the degree of commitment that the applicant has shown towards the child;

(d)[(c)] the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and

[(d) the best interest of the child; and]

(e) any other fact that should, in the opinion of the court, be taken into account.

(4) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court―

(a) must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interest of the child concerned; and

(b) may suspend the first-mentioned application on any conditions it may determine.

(5) The granting of custody or access [assignment of parental responsibilities and rights] to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

Assignment of guardianship by order of court

24. (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.

(2) When considering an application contemplated in subsection (1), the court must take into account –

(a) the best interest of the child;

(b) the relationship between the applicant and the child, and any other relevant person and the child;

(c) any other fact that should, in the opinion of the court, be taken into account.

(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.

Certain applications regarded as inter-country adoptions

24. When application is made in terms of section 23(1) by a non-South African citizen for the assignment of full parental responsibilities and rights in respect of a child or to act as guardian of a child, the application must be regarded as an inter-country adoption for the purposes of the Hague Convention on Inter-country Adoption and Chapter 16 [17] of this Act.

Persons claiming paternity

25. (1) A person who is not married to the mother of a child and who is or claims to be the biological father of the child may―

(a) apply for an amendment to be effected to the registration of birth of the child in terms of section 11(4) of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992), identifying him as the father of the child, if the mother consents to such amendment; or

(b) apply to a court for an order confirming his paternity of the child, if the mother –

(i) refuses to consent to such amendment;

(ii) is incompetent to give consent due to mental illness;

(iii) cannot be located; or

(iv) is deceased.

(2) This section does not apply to―

(a) the biological father of a child conceived through the rape of or incest with the child’s mother; or

(b) any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation.

Assignment of parental responsibilities and rights to parent-substitutes

26. (1) (a) A parent who is the sole guardian of a child may appoint a suitable person as guardian of the child in the event of the death of the parent.

(b) A parent who is the sole custodian of a child may appoint a suitable person to be vested with sole custody of the child in the event of the death of the parent.

[(1) A parent who is the sole natural guardian and who has parental responsibilities and rights in respect of a child may appoint a suitable person as a parent-substitute and assign to that person his or her parental responsibilities and rights in respect of the child in the event of his or her death.]

(2) An appointment in terms of subsection (1) must form part of the will of the parent. [―

(a) must be in writing and signed by the parent;

(b) may form part of the will of the parent;

(c) replaces any previous appointment, including any such appointment in a will, whether made before or after this section took effect; and

(d) may at any time be revoked by the parent by way of a written instrument signed by the parent.]

(3) A person [parent-substitute] appointed in terms of subsection (1) acquires guardianship or sole custody, as the case may be [parental responsibilities and rights] in respect of a child―

(a) after the death of the parent; and

(b) upon the person’s [parent-substitute’s] express or implied acceptance of the appointment.

(4) If two or more persons are appointed as guardians or as sole custodians [parent-substitutes], any one or more or all of them may accept the appointment except if the appointment provides otherwise.

[(5) A parent-substitute acquires only those parental responsibilities and rights―

(a) which the parent had at his or her death; or

(b) if the parent died before the birth of the child, which the parent would have had had the parent lived until the birth of the child.

(6) The assignment of parental responsibilities and rights to a parent-substitute does not affect the parental responsibilities and rights which another person has in respect of the child.

(7) In this section "parent" includes a person who has acquired parental responsibilities and rights in respect of a child.]

Termination, extension, suspension or restriction of parental responsibilities and rights

27. (1) A person referred to in section 28 may apply to the High Court, a divorce court in a divorce matter or a children’s court for an order―

(a) suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child; or

(b) extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

(2) An application in terms of subsection (1) may be combined with an application in terms of section 23 for the assignment of responsibilities and rights in respect of the child to the applicant in terms of that section.

Who may approach court

28. (1) An application for an order referred to in section 27 may be brought―

(a) by a co-holder of parental responsibilities and rights in respect of the child;

(b) by any other person having a sufficient interest in the care, protection, well-being or development of the child;

(c) by the child, acting with leave of the court;

(d) in the child’s interest by any other person, acting with leave of the court; or

(e) by a family advocate or the representative of any interested organ of state.

(2) When considering an application referred to in section 27 the court must take into account –

(a) the best interests of the child;

(b)[(a)] the relationship between the child and the person whose parental responsibilities and rights are being challenged;

(c)[(b)] the degree of commitment that the person has shown towards the child; and

[(c) the best interests of the child; and]

(d) any other fact that should, in the opinion of the court, be taken into account.

Court proceedings

29. (1) An application in terms of section 22(5)(a)(ii) or (b), 23(1), 25(1)(b) or 27(1) may be brought before the High Court, a divorce court in a divorce matter or a children’s court within whose area of jurisdiction the child concerned is ordinarily resident.

(2) An application in terms of section 23(1) for the assignment of full parental rights and responsibilities or to act as guardian of a child must contain reasons as to why the applicant is not applying for the adoption of the child.

(3) The court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

(4) When considering an application contemplated in subsection (1) the court must be guided by the principles set out in Chapters 2 [Chapters 2 and 3] to the extent that those principles are applicable to the matter before it.

(5) The court may for the purposes of the hearing order that―

(a) a report and recommendations of a family advocate, a social worker or other suitably qualified [professional] person must be submitted to the court;

(b) a matter specified by the court must be investigated by a person designated by the court;

(c) a person specified by the court must appear before it to give or produce evidence; or

(d) the applicant or any party opposing the application must pay the costs of any such investigation or appearance.

(6) The court may –

(a) appoint a legal practitioner to represent the child at the court proceedings; and

(b) order the parties to the proceedings, or any one of them, or the state if substantial injustice would otherwise result, to pay the costs of such representation.

(7) If it appears to a court in the course of any proceedings before it that a child involved in or affected by those proceedings is in need of care and protection, the court must order that the question whether the child is in need of care and protection be referred to a social worker for investigation in terms of section155(2) [children’s court for decision].

Part 2

Co-exercise of parental responsibilities and rights

Co-holders of parental responsibilities and rights

30. (1) More than one person may hold parental responsibilities and rights in respect of the same child.

(2) When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where this Act, any other law or an order of court provides otherwise.

(3) A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.

(4) An agreement in terms of subsection (3) does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.

[(5) Except where this Act or an order of court provides otherwise, the following acts may not be concluded without the consent of all persons holding parental responsibilities and rights in respect of those acts:

(a) The contracting of a marriage by the child;

(b) the adoption of the child;

(c) the departure or removal of the child from the Republic;

(d) the application for a passport by or on behalf of the child; or

(e) the alienation or encumbrance of immovable property belonging to the child, including any right to or interest in immovable property.]

Major decisions involving child

31. (1) (a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

(b) A decision referred to in paragraph (a) is any decision―

(i) in connection with a matter listed in section 18(3)(c);

(ii) affecting contact between the child and a co-holder of parental responsibilities and rights;

(iii) regarding the assignment of guardianship or custody respect of the child to another person in terms of section 26; or

(iv) which is likely to change significantly, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being.

(2) (a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by any co-holder of parental responsibilities and rights in respect of the child.

(b) A decision referred to in paragraph (a) is any decision which is likely to change significantly, or to have a significant adverse effect on, the co-holder’s exercise of parental responsibilities and rights in respect of the child.

[(1) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in subsection (2) involving the child, that person must give due consideration to any views and wishes expressed―

(a) by the child, bearing in mind the child’s age, maturity and stage of development; and

(b) by any co-holder of parental responsibilities and rights in respect of the child.

(2) A decision referred to in subsection (1) is, for purposes of―

(a) subsection (1)(a), any decision –

(i) in connection with a matter listed in section 30(5);

(ii) affecting contact between the child and a co-holder of parental responsibilities and rights;

(iii) regarding the assignment of parental responsibilities and rights in respect of the child to a parent-substitute in terms of section 26; or

(iv) which is likely to change significantly, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being; and

(b) subsection (1)(b), any decision which is likely to change significantly, or to have a significant adverse effect on, the co-holder’s exercise of parental responsibilities and rights in respect of the child.]

Care of child by persons not holding parental responsibilities and rights

32. (1) A person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, including a care-giver who otherwise has no parental responsibilities and rights in respect of a child, must, whilst the child is in that person’s care –

(a) safeguard the child’s health, well-being and development; and

(b) protect the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical or mental harm or hazards.

(2) Subject to section129, a [A] person referred to in subsection (1) may exercise any parental responsibilities and rights reasonably necessary to comply with subsection (1), including the right to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent [or primary care-giver] of the child.

(3) A court may limit or restrict the parental responsibilities and rights which a person may exercise in terms of subsection (2).

(4) A person referred to in subsection (1) may not –

(a) hold himself or herself out as the biological or adoptive parent of the child; or

(b) deceive the child or any other person into believing that that person is the biological or adoptive parent of the child.

Part 3

Parenting plans

Contents of parenting plans

33. (1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.

(2)[(1)] If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.

(3)[(2)] A parenting plan may determine any matter in connection with parental responsibilities and rights, including –

(a) where and with whom the child is to live;

(b) the maintenance of the child;

(c) contact between the child and –

(i) any of the parties; and

(ii) any other person; and

(d) the schooling and religious upbringing of the child.

(4)[(3)] A parenting plan must comply with the best interest of the child standard as set out in section 6.

(5)[(4)] In preparing a parenting plan as contemplated in subsection 2 the parties must seek –

(a) the assistance of a family advocate, social worker or psychologist; or

(b) mediation through a social worker or other suitably qualified [appropriate] person.

Formalities

34. (1) A parenting plan –

(a) must be in writing and signed by the parties to the agreement; and

(b) subject to subsection (2), may be registered with a family advocate or made an order of court.

(2) An application for registration of a parenting plan contemplated in subsection 33(1) must –

(a) be in the format and contain the particulars prescribed by regulation; and

(b) be accompanied by [–

(i)] a copy of the plan.[; and]

(3) An application for registration of a parenting plan contemplated in subsection 33(2) must –

(a) be in the format and contain the particulars prescribed by regulation; and

(b) be accompanied by –

(i) a copy of the plan; and

(ii) a statement by –

(aa) a family advocate, social worker or psychologist contemplated in section 33(4)(a) that the plan was prepared after consultation with such family advocate, social worker or psychologist; or

(bb) a social worker or other appropriate person contemplated in section 33(4)(b) that the plan was prepared after mediation by such social worker or such person.

Amendment or termination of registered parenting plans

35. (1) A parenting plan registered with a family advocate may be amended or terminated only by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan;

(2)[(1)] A [registered] parenting plan that was made an order of court may be amended or terminated only by an order of court on application –

(a) by the co-holders of [the] parental responsibilities and rights who are parties to the plan;

(b) by the child, acting with leave of the court; or

(c) in the child’s interest, by any other person acting with leave of the court.

(2) Section 29 applies to an application in terms of subsection (2)[(1)].

Part 4

Miscellaneous

Presumption of paternity in respect of child born out of wedlock

36. If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.

Refusal to submit to taking of blood samples

37. If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.

Effect of subsequent marriage of parents on children

38. (1) A child born of parents who marry each other at any time after the birth of the child must for all purposes be regarded as a child born of parents married at the time of his or her birth.

(2) Subsection (1) applies despite the fact that the parents could not have legally married each other at the time of conception or birth of the child.

Rights of children born of voidable marriages

39. (1) The rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage.

(2) No voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.

(3) Section 6 of the Divorce Act and section 4 of the Mediation in Certain Divorce Matters Act apply with the necessary changes required by the context in respect of such a child as if the proceedings in question were proceedings in a divorce action and the annulment of the marriage were the granting of a decree of divorce.

(4) Section 8(1) and (2) of the Divorce Act, with the necessary changes as the context may require, apply to the rescission or variation of a maintenance order, or an order relating to the care or guardianship of, or access to, a child, or the suspension of a maintenance order or an order relating to access to a child, made by virtue of subsection (3) of this section.

(5) A reference in any legislation –

(a) to a maintenance order or an order relating to the custody or guardianship of, or access to, a child in terms of the Divorce Act must be construed as a reference also to a maintenance order or an order relating to the care or guardianship of, or access to, a child in terms of that Act as applied by subsection (3);

(b) to the rescission, suspension or variation of such an order in terms of the Divorce Act must be construed as a reference also to the rescission, suspension or variation of such an order in terms of that Act as applied by subsection (4).

(6) For purposes of this Act, the father of a child conceived in a voidable marriage where such marriage has been annulled is regarded to be in the same position as the father of a child who has divorced the mother of that child.

Rights of children conceived by artificial fertilisation

40. (1) (a) Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses were used for such artificial fertilisation.

(b) For the purpose of paragraph (a) it must be presumed, until the contrary is proved, that both spouses have granted the relevant consent.

(2) Subject to section 290, whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman.

(3) Subject to section 290, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete or gametes have been used for such artificial fertilisation and the blood relations of that person, except when―

(a) that person is the woman who gave birth to that child; or

(b) that person was the husband of such woman at the time of such artificial fertilisation.

Access to biographical and medical information concerning genetic parents

41. (1) A child born as a result of artificial fertilisation or surrogacy or the guardian of such a child is entitled to have access to―

(a) any medical information concerning that child’s genetic parents;

(b) any other information concerning the child's genetic parents but not before the child reaches the age of 18 years.

(2) Information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete or gametes have been used for such artificial fertilisation or the identity of the surrogate mother.

(3) The Director-General for Health or any other person specified by regulation may require a person to receive counselling before any information in terms of subsection (1) is disclosed.