SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
Section 18(3)(c) of the Children’s Act specifies that the following decisions must be made jointly between all persons having guardianship: • consent to the child’s marriage; • consent to the child’s adoption; • consent to the child’s removal from South Africa (be it temporary or permanent); • consent to the child’s application for a pass - port; and • consent to the alienation or encumbrance of any immovable property owned by the child. Section 31 of the Children’s Act relates to major decisions involving a child, which are not cov - ered by Section 18(3)(c). It provides that due consideration must be given to the views and wishes expressed by the child before a person holding parental responsibilities and rights in respect of said child takes any decision involving the child as set out in Section 31(1)(b), bearing in mind the child’s age, maturity, and stage of development. Section 31(1)(b) defines these major decisions as those: • relating to consent to a child’s marriage or adoption, consent to a child’s departure or removal from South Africa, the application for a passport, and alienation or encumbrance of immovable property owned by the child (Sec - tion 18(3)(c)); • affecting contact between the child and a co- holder of parental responsibilities and rights; • relating to the assignment of guardianship or care to another person; or • that are likely to significantly change or have an adverse effect on the child’s living condi - tions, education, health or personal relations with a parent or family member or, generally, the child’s well-being.
In addition, any co-holder of parental responsi - bilities and rights (usually the other parents) must be consulted in respect of any decision that is likely to significantly change the co-holder’s exercise of parental responsibilities in respect of the child, or to have a significant adverse effect on the exercise of such responsibilities. A practical example of this would be a decision by one parent to move to another town or province, which would clearly have an adverse effect on the other party’s right to contact. If a dispute arises that cannot be resolved through mediation (or facilitation by a court- appointed parenting co-ordinator in some high- conflict matters), the aggrieved party is entitled to approach the High Court (the upper guard - ian of all minor children in South Africa) for the appropriate relief (eg, dispensing with the requirement that the other parent provides the requisite consent for international travel, direct - ing which school a child should attend, or what medical treatment a child should undergo). When making a ruling, the court will have regard to any expert report that has been filed. If no such report has been filed, the court may exer - cise its discretion in reaching a decision and/ or order the appointment of a suitable expert to produce a report with recommendations to assist the court. Parental Alienation Parental alienation is considered a form of child abuse, and cases of such a nature are handled with extreme caution and urgency. When dealing with parental alienation, the court will require the evidence of an expert psycholo - gist, preferably with experience in parental alien - ation. This expert will conduct a full investiga - tion into the child’s circumstances, including the
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