Under South African law, ‘guardianship’, ‘care’, and ‘contact’ are distinct legal concepts within the domain of child law. Primarily governed by section 18 of the Children’s Act (‘the Act’), these parental rights and responsibilities, which delineate the legal relationship between parents (or guardians) and minor children, are helpfully explained below.
Guardianship
According to section 18(2)(a) of the Act, ‘guardianship’ refers to the parental right and responsibility ‘to act as guardian of the child’. In essence, guardianship enables a minor’s legal guardian to make major decisions on their behalf, including the provision of medical treatment and choice of educational institution.
Fleshing out this concept, section 18(3) of the Act specifies that a parent – or other individual – who acts as a child’s guardian is required to represent or assist the child in contractual, administrative, or legal matters and to safeguard and administer the child’s property and proprietary interests. In addition, the provision requires a child’s guardian to consent to various listed acts impacting the child, including the child’s marriage, application for a passport, relocation to a foreign jurisdiction, and alienation of immovable property registered in their name.
Notably, if a child has more than one guardian, the consent of each person is required for the acts delineated in section 18(3)(c), unless a competent court rules otherwise. In all other instances, either guardian is competent to independently exercise their guardianship responsibilities, subject to a court order.
Care
Under section 1(a) of the Act, ‘care’ is widely defined to mean providing a child with, inter alia, suitable shelter, necessary financial support, and living conditions conducive to a child’s well-being, health, and development – within one’s available means. Further, it encompasses promoting and protecting a child’s well-being, safeguarding them from physical and emotional harm, accommodating any special needs, guiding their upbringing, education, and mental development, and maintaining a sound relationship with them. In addition, ‘care’ extends to assisting and advising a child in their decision-making in a manner appropriate to their age, developmental stage, and maturity, guiding their conduct humanely, and otherwise ensuring that their best interests are paramount importance in all matters concerning them.
Contact
According to section 1 of the Act, ‘contact’ is primarily defined to mean ‘maintaining a personal relationship with the child’. In the context of divorce or separation, contact disputes are particularly commonplace and ultimately result in one parent retaining primary care and contact. In instances where a child lives with their other parent or a court appointed guardian, ‘contact’ encompasses regular communication with the child, including visitation, which is not limited to the child’s primary home, telephone calls, and other forms of digital communication, such as WhatsApp, email, and video calling.
Although connected, guardianship, care, and contact are distinct parental rights and responsibilities – an understanding of which is critical to navigating parental disputes amid divorce or separation.
For expert legal assistance, contact our family law attorneys at familylaw@stbb.co.za.
