Legal Parenthood in South Africa

‘Parental responsibilities and rights’ was the umbrella term introduced by the Children’s Act 38 of 2005 to describe the ‘basket’ of competencies and obligations which now define the relationship between parents and children. Section 18 sets out the meaning of parental responsibilities and rights in a non-exhaustive manner, so as to include care for the child, the responsibility and right to maintain contact with the child, to act as a guardian for the child, and to contribute to the maintenance of the child. The acquisition of parental rights and responsibilities may indicate legal parentage – biological mothers automatically acquire full parental responsibilities and responsibilities, as do married biological fathers – but this is not necessarily the case. Some unmarried fathers acquire automatic parental responsibilities and rights, if they meet the criteria set out in section 21(1) of the Act. If an unmarried father does not meet the criteria, then he may still be a holder of parental responsibilities and rights by agreement, or by order of a court. Similarly, persons other than biological parents may be holders of parental responsibilities and rights, such as grandparents,8 non-biological same sex partners, or indeed any persons having an interest in the care and wellbeing of the child, according to the evaluation of the court.