1. consenting to the child's emigration or relocation,
2. determining the child's religion,
3. determining the child's education; and
4. consenting to the child's medical treatment.

Any decision exercised in the context of an emergency does not constitute a major decision.

8.4.5 Evaluation and recommendations

8.4.5.1 Parental rights and responsibilities

The Commission is in favour of defining the term 'parental responsibility', which definition should enumerate the components of parental responsibility in a non-exhaustive manner. The Commission also recommends that a new children's statute should contain a statement of parental rights, which rights should mirror the components of parental responsibility. In this regard, the Commission is in favour of formulations along the lines of those included in the Scottish legislation, with certain amendments and additions. The suggested statutory provision reads as follows;

Parental Rights and Responsibilities

A parent has in relation to his or her child the right and the responsibility –

1. to care for his or her child:
2. to have and maintain contact with his or child: and
3. to act as guardian for his or her child.

The Commission recommends that these three components of parental rights and responsibilities be clearly defined so as to make it possible for the court to allocate all or some of these components (or sub-components thereof) to one or more persons. These definitions are set out below.

8.4.5.2 Changes in terminology and the components of parental rights and responsibilities

The Commission is of the view that the components of 'parental responsibility' presently encapsulated in the term’s ‘guardianship’; 'custody' and 'access' should also be defined in a new 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 e-mail contact)

As regard an appropriate term for the responsibilities, and corresponding rights, vested in a person with whom the child is to live, the Commission considered various options, such as the retention of the term 'custody' or the replacement of the concept of 'custody' with a new concept of 'residence', 'care' 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).

Later in this Discussion Paper the Commission recommends, in the context of children caught up in divorce proceedings, that a shift to new, less loaded' terminology can reduce conflict in divorce. In this context, the Commission has recommended that the current Divorce Act 70 of 1979 term 'custody' be replaced with the term 'care', as the use of words such as 'custody' and 'sole custody', besides their negative connotation with police and prisons, promotes a potentially damaging sense of winners and losers. Given this decision, and to ensure uniformity, the Commission recommends that the concept 'custody' be replaced with the concept 'care'. AS regards 'guardianship', the Commission 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 'care' and contact')

To summarise, the Commission recommends the following changes in terminology:

'Guardianship = Guardianship'

In this regard, the Commission proposes the following definitions of care, contact and guardianship. 'Care' includes the right and responsibility of a parent to –

1. to create, within his or her capabilities and means, a suitable residence for the child and living conditions that promote the child's health, welfare and development;
2. to safeguard and promote the well-being of the child;
3. to protect the child from ill-treatment, abuse, neglect, exposure, discrimination, exploitation and from any other physical and moral hazards;
4. to safeguard the child's human rights and fundamental freedoms;
5. to guide and direct the child's scholastic, religious, cultural, and other education and upbringing in a manner appropriate to the stage of development of the child,
6. 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;
7. to guide (discipline) the child's behaviour in a humane manner: and
8. generally to ensure that the best interest of the child is the paramount concern in all matters affecting the child.

'Contact' includes the right and responsibility of a parent, if the child is not living with him or her, to maintain personal relations with and to have direct access to his or her child on a regular basis.

To act as 'guardian' means the right and responsibility of a parent to –

1. administer and safeguard the child's property;
2. to assist and represent the child in contractual, administrative and legal matters. and
3. to give or refuse any consent which is legally required in respect of his or her child.

8.4.5.3 The management of parental rights and responsibilities

The Commission recommends, on the basis of sections 2(5) -2(11), read with section 3(4), of the UK Children Act, and clauses 21(4) - 21(8) of the revised Kenya Children Bill, 1998, that

• more than one person may have parental rights and responsibility, or components thereof, in respect of the same child at the same time;
• a person who has parental rights and responsibility for a child at any time shall not cease to have those rights and responsibility simply because some other person subsequently acquires parental rights and responsibility for that child;
• where more than one person has parental rights and responsibility in respect of a child, each of them may act alone and without the other(s) in fulfilling that responsibility, with certain exceptions mentioned below;
• the fact that a person has parental rights and responsibility shall not entitle such a person to act in any way which would be incompatible with any order made in respect of that child in terms of the new children's statute;
• a person who has parental rights and responsibility for a child may not surrender or transfer any part of those rights and responsibility to another but may arrange for some or alt of it to be undertaken by other appropriate persons on his or her behalf.