Rights of parents, interested parties and the law – The Children’s Act 38 of 2005

Children's Act. Parental Responsibilities and Rights Care and Contact

Child Custody, Contact rights and more – Children’s Act 38 of 2005

This article gives a  short introduction to the Children’s Act.

The Children’s Act 38 of 2005 was a very welcomed piece of legislation. It assists us in answering many issues relating to Family Law. For example. What are the rights of unmarried fathers? Do I as a father of a child born out of wedlock have rights? Do I as a father of a child born in terms of a religious marriage have rights?

Parents who are involved in disputes regarding their children should educate themselves on the provisions of the Children’s Act.

Challenges for unmarried fathers

In our view, unmarried fathers almost always experienced difficulties regarding access to their children if they were separated from their mother. What is even worse, is if a couple was married in terms of religion or custom, and not civilly (e.g. in Court), and the parties separated, where the unmarried father’s position would be the same as that of an unmarried father who was never married to the mother religiously or customary.

Rights of Unmarried Fathers in South Africa

However, if a party was married civilly and divorced, the Divorce Court in the past would deal with the issue of care and contact in relation to the minor children. The usual phrase used was that the mother would have custody over the child, with the father having rights of reasonable access. The position has however improved with the inception of the Children’s Act 38 of 2005 for both divorced and unmarried fathers. As outlined below, an unmarried father would have rights over a child, akin to that of a married father, as long as certain conditions are met.

The persistent problem for unmarried parents

However, in our view, based on the custody and contact matters we dealt with since the inception of the Act, mothers are still seen as primary caregivers in practice, and if the mother does not want the father to have contact or care with the child or a say in his or her life, the father would still have to follow the procedures in the Act to give effect to his rights. Sometimes, approaching the Court is the only solution. However, on the whole, the Children’s Act 38 of 2005, is a step in the proper direction for unmarried fathers, and children born out of wedlock. We hope it would improve even more.

The coming into effect of the Children’s Act 38 (Act 38 of 2005)

All sections of the Children’s Act 38 (Act 38 of 2005) came into effect on 1 April 2010. The Children’s Act 38 of 2005 brought many changes regarding the responsibilities and rights of parents and children and also deals with other aspects regarding children, e.g. contraceptives and abortion, etc. Interesting to note are the following sections listed below, there are however others depending on your issues.

Parental responsibilities and rights

Section 18 of the children’s act 38 of 38 2005 states the following:

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

(2) The parental responsibilities and rights that a person may have in respect of a Child, include the responsibility and the right-

(a) To care for the child;

(b) To maintain contact with the child;

(c) To act as 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 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) consent to the child marriage

(ii) Consent to the child adoption;

(iii) Consent to the child departure or removal from the Republic;

(iv) Consent to the child application for a passport; and

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

(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law 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 is necessary in respect of matters set out in subsection (3)(c).

We shall now deal with what the Children’s Act of 2005 says the meaning of care and contact are, which are not the traditional words used in the past. In the past, the courts and the legal fraternity used the terms custody and access. This was reflected in divorce papers. Now legal documents use the terms care and contact although some might disagree, it is respectfully submitted that custody is an aspect of care and the Children’s act provides broader responsibilities and rights in this regard.

Meaning of Care in the Children’s Act

The Children’s Act 38 of 2005 defines care as follows:

Care in relation to a child, includes, where appropriate-

(a) Within available means, providing the child with-

(i) a suitable place to live;

(ii) Living conditions that are conducive to the child’s health well-being and development; and

(iii) The necessary financial support;

(b) Safeguarding and promoting the well-being of the child;

(c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;

(d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;

(e) guiding, directing and securing the child education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child age, maturity and stage of development; guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child age, maturity and stage of development;

(g) Guiding the behaviour of the child in a humane manner;

(h) Maintaining a sound relationship with the child;

(I) accommodating any special needs that the child may have; and

(j) Generally, ensuring that the best interests of the child is the paramount Concern in all matters affecting the child;

Meaning of Contact in the Children’s Act

According to the Children’s Act 38 of 2005, contact means the following:

Contact in relation to a child, means-

(a) Maintaining a personal relationship with the child; and

(b) If the child lives with someone else-

(I) communication on a regular basis with the child in person, including-

(AA) visiting the child; or

(Bb) being visited by the child; or

(ii) Communication on a regular basis with the child in any other manner,


(AA) through the post; or

(Bb) by telephone or any other form of electronic communication;

It is my view that the Children’s Act 38 of 2005 attempts to place greater value to contact between parent and child.

There are many sections in the Children’s Act 38 of 2005 that deals with parental responsibilities and rights of parents and children. Get hold of the Act and see how it applies to you.

If you are an unmarried father and your rights are being limited by the mother of the child, I advise you to contact a family legal practitioner and discuss your rights with him or her. And to all unmarried fathers out there, fight for your rights as a father, this would be in the child’s best interest.

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About the Author

Advocate South Africa

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13 thoughts on “Rights of parents, interested parties and the law – The Children’s Act 38 of 2005

  1. I am an unmarried father, my daughters mother and I had some differences and now she wants to change our daughters names and surname. My daughter currently has my surname and I am listed on her birth certificate as the biological father. Can the mother change the babys names and surname without my consent?

  2. I have major concerns regarding my children temporary safe care custudy.. because I have been receiving threats from them and kept away from seeing them

  3. Slm. I see some advice. I have a 7month old boy with my ex boyfriend and it was constantly been a fight and argument about the child where he wants the child to sleep by him and wanting to fetch the child whenever he wants to. Then also he keeps telling me his going for parenting planning and his going to take me to court for custody of our child. Then twice he literally swore at my telling me what a bad mother I am and not fit to be his mother and all of that but in rude manner and rude words. And he doesn’t even help me with our son I support our son by myself and my parents sometimes help me if I am in need but he bluntly say straight I don’t have and I can literally count on my fingers how many times he gave milk, nappies and wipes for our son. I would like to know what do I do or what can be done in my matter kanala.

  4. Good day,
    My ex husband stays in a room (with separate bathroom) and our two children (daughter of 14 and son on 12) have to sleep with him on one bed. Is this right according to law…?
    And now he wants to with hold maintenance from me in order to put up a flat.
    What are my rights…?

    Kindest regards.
    Naomi Dalhouzie

  5. Hi

    I would like to find out if there is a law or something that requires my ex wife to bring my kids from Polokwane to Johannesburg? As she thinks that doing this is a favor to me…but in the 5 years we have been separated, she has only brought the kids to me a total of five (5) times…and It costs me roughly 2500-3000 for one weekend there. I pay maintenance, I pay their medical aid, phone them every night…nut only get to see them once every 2 months…even though she has agreed to bring them every other month…her salary is more than mine, her boyfriend stays with her and she receives maintenance…but claims she does not have the funds…so looking for advice please.

    Thank you in advance

  6. Good day,

    My name is Anthea and I am in desperate need of legal help. My husband has once again taken my 3 children away from me. He does this each time we have a conflict. My youngest is only a year old. The last time this happened i didnt see my girls for weeks. He has been physically and emotionally abusive to me but i never laid a case as he would threaten me.
    The previous time i tried to file for divorce he threatened that he would take the kids away from me, i tried going to legal aid but got very little interest there and he got his dad to pay for attorneys so i had no way to fight him. I was in a vehicle accident 6 years ago and he used that against me to say that i was not mentally able to take care of the kids. This time round he left because the RAF is paying me out soon and he wants full control of the money and i said no. The only way he is able to provide financially for the children is because his dad puts money in his account, he is unable to keep a job.

    I have exhausted all avenues of help and i am desperate to get my children back, unfortunately not many people are willing to help if you dont have money.

    Is there anyway you could help me or give me advice on where to go from here?

    Kind Regards


  7. To whom it may concern, I urgently need advice, I need to know how I can get full custody of my two children, my ex husband is married and works offshore, he pays for the childrens maintenance, their school, he really does take care of them I really cant complain about that, he works away for 5 weeks and his home for 4 weeks, but when his home there is always fighting, I’ve reach a point where I can’t anymore, I need to protect my children from all this fighting, my son is seeing a psychologist, and a social worker at the school, however the last month has been the worst month of my life, my son has threatened to kill himself, his threatened to run away, his said he doesn’t want to go to his dad, he hates his dad. It’s been a nightmare, the step mother of course loves conflict and always tries to add fuel on the fire, they keep questioning my children and as per our settlement and parent plan I am concerned about my two children,. They are in my custody when his away, but when he returns they go to him for the 4 weeks and come to me only twice a week, my children have said things about them where my partner and I will then ask my ex and his wife but then the next day my children will get questioned by them. I’m not perfect, I make mistakes as a mom, but I can promise you that my kids is my everything and I really need advice on what to do, I have a really close relationship with both my children, my son has also been struggling with school, when my ex is away the step mom and ouma fetch them from school and then after work I go get them, but my son doesn’t do homework and they don’t check him either, the last he worked in his social science book was the 8th Feb, this makes it difficult for me as I want both kids to do well, my partner and I have sat up till early hours in the morning doing his work just so he can be up to date, I have recommended the children go to aftercare, that way I will know there will be someone to help my son with his homework but my ex is refusing, please can someone help me in the right direction

    I am so scared of putting more pressure on my children and them getting hurt in the process, especially now right before exams that’s why I’ve tried to let it blow over but I cant anymore,

    The past month my son has been threatening, which I sent my ex an email to say that our son needs to get help, his 10 years old, there is messages and messages me asking can I take my son to the psychologist but he said no he doesn’t think so, until about 3 weeks ago the teacher and social worker called me in and said, Sage needs help mentally, which I said to Abrie (my ex) I am taking him to the psychologist, 2 weeks ago Abrie came home, and they have been with him the last two weeks, things seem ok, Sage ( my son) said he has made peace with Abrie and they best friends again like old times, my concern is, is this going to happen again?? Sage & gabriella were by me last night and Boetie said his fallen behind with his work again, meaning they not checking his work, they let him make you tube videos which my partner and I don’t agree on, his 10 years old, his meant to be playing outside and enjoying his life. I feel and please I might be wrong and god forgive me for saying this but when Sage told abrie how he feels and how Abrie has been making him feel, he immediately spent time with my son which I think is amazing that they have sorted things out, but I’m scared his buying the childrens love :( because he does have money and he can spoil them but in the right manner, I’ve told my children, I might not be rich, but one thing I can promise them is I will always love, protect and support them unconditionally

    sorry for the long messages, I got a lot on my heart and as I said I don’t know what to do, he pays the children maintenance, which my partner and I have to buy food for when they are by Abrie and when they are by me, we also have top buy the children clothes for both houses, which is fine, but his wife said last week if we can buy the children more winter clothes and my reply was surely you and Abrie can also get stuff and time after time she always brings up the maintenance saying we pay you maintenance.

    Please can you lead me into the right direction

    1. Good day.

      We suggest that you approach a social worker to advise you as to what his best for the children. The matter can then be taken to court based upon the social workers recommendations. We however strongly advise that you consult a legal practitioner sooner than later.

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