SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
• the protection and well-being of a child; • the care of or contact with a child; • guardianship of a child; • the support of a child; • the temporary safety of a child; and • the adoption of a child, including an inter-country adoption. The High Courts similarly have jurisdiction over mat ‑ ters where the child involved is ordinarily resident within the geographical area of the High Court. The High Court and the Children’s Courts have concur ‑ rent jurisdiction over a number of issues, including guardianship of a child. The domicile or nationality of a child who is ordinarily resident in South Africa has no impact on jurisdiction. 3.2 Living/Contact Arrangements and Child Maintenance Living/Contact Arrangements If parents are not able to agree on what care and con ‑ tact arrangements will be in their child’s best interests, and have not been able to resolve this dispute by way of mediation, then an expert will need to be appointed to conduct an investigation into the best interests of the child. This expert will produce a report with recom ‑ mendations regarding what care and contact arrange ‑ ments will be in the child’s best interests. This forensic investigation can be conducted by the Family Advocate’s Office (at no cost to the parties) or – if the parties have the means – by a psycholo ‑ gist or social worker in private practice. This forensic investigation will take into account the factors set out in Section 7 of the Children’s Act. If one parent disagrees with and refuses to accept and implement the recommendations made by the appointed expert, the other parent can approach the court to ask for the implementation of the expert’s recommendations in the child’s best interests. The courts prefer a single joint expert to be appointed, but parties are entitled to appoint their own experts should they so wish. The expert’s duty, however, is to the court, and not to either of the parties.
As the upper guardian of minor children, the High Court has jurisdiction over all child-related matters and can make any order in the best interests of the child(ren), whether in accordance with the expert’s recommendations or not. Custody and Parental Responsibility In terms of Section 18 of the Children’s Act, married parents are co-holders of full parental responsibilities and rights in respect of a child, including the respon ‑
sibility and right to: • care for the child;
• maintain contact with the child; • act as guardian of the child; and • contribute to the maintenance of the child.
A biological mother of a child, whether married or unmarried, has full parental responsibilities and rights, as set out in Section 19 of the Children’s Act. An unmarried father, on the other hand, only acquires full parental responsibilities and rights, in terms of Sec ‑ tion 21 of the Children’s Act, in the following circum ‑ stances: • if, at the time of the child’s birth, he was living with the mother in a permanent life partnership; or • if he consents to be identified as the child’s father or pays damages in terms of customary law and contributes or has attempted to contribute in good faith to the child’s upbringing for a reasonable period, and contributes or has attempted to con ‑ tribute towards expenses in connection with the maintenance of the child for a reasonable period. Restrictions on Court’s Ability to Make Orders on Living and Contact Arrangements A court can make any order as to the child’s living and contact arrangements, but must be satisfied that the care and contact arrangements are in the child’s best interest, having regard to the factors set out in Sec ‑ tion 7 of the Children’s Act. Any settlement agreement concluded between parties where minor children are involved must be sent to the Family Advocate’s Office for endorsement. Section 6 of the Divorce Act regulates the safeguard ‑ ing of interests of minor and dependent children, and
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