Justice Cape Town Legal Services and Advice Cape Town South Africa

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Justice Cape Town Legal Services and Advice Cape Town South Africa

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I would love to have contact with my child on Father’s Day. Her mother is refusing me contact. What does the law say when it comes to the rights of a father?

Every year, the World celebrates Father’s Day. In 2019, it was celebrated on 16 June, coinciding with Youth Day in South Africa. It is a very special day not only for fathers but for the children concerned. When we refer to children, we are not only referring to kids or toddlers. Even grown-up children celebrate Father’s Day with their respective fathers. In some families, Father’s Day is being celebrated by three generations of offspring. This article, however, relates to Father’s Day in the context of minor children spending time with their fathers on that special day.

The Father

We will not go into the technical legality of what makes you a father. A child who has been adopted is for all intents and purposes the child of the adoptive parent. Even if the child was not adopted, or you are not the biological father of the child, if the child refers to you as a father, then the celebration of Father’s Day would apply to you. Here a specific example would be step-parents. Now let’s move on to the issue of what rights does a father have to have contact with his child on Father’s Day. But before we can do that, we need to have a look at the Children’s Act 38 of 2005. Let us start off by looking at what the law says regarding parental responsibilities and rights of fathers. You will note that the law applies differently when it comes to married and unmarried fathers. However, the principles are the same.

Unpacking the law

The purpose of this article is to correctly outline the law applicable to the rights of fathers in relation to their children. In this case, we shall make extensive reference to the Children’s Act. A father can, therefore, have a look at the various sections of the Children’s Act, unpacked below and apply it to himself. Let us start off with a concept of parental responsibilities and rights.

Parental responsibilities and rights of married fathers

Section 20 of the Children’s Act deals with the parental responsibilities and rights of married fathers. It states: The biological father of a child has full parental responsibilities and rights in respect of the child— (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at— (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth.   This section is straight forward. If you were married to the child’s mother, you automatically have full parental responsibilities and rights in respect of the child. In short, you do not have to be married to the mother at conception. Parental responsibilities and rights of unmarried fathers Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. It states: (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child— (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or (b) if he, regardless of whether he has lived or is living with the mother— (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. (2) This section does not affect the duty of a father to contribute towards the maintenance of the child. (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. (b) Any party to the mediation may have the outcome of the mediation reviewed by a court. (4) This section applies regardless of whether the child was born before or after the commencement of this Act.   The application of this section can be a bit technical. However, it seems that if a father was involved in a child’s life, he acquires parental responsibilities and rights.   Now let us move on to what is meant by the term “parental responsibilities and rights”. Parental responsibilities and rights Section 18 of the Children’s Act deals with parental responsibilities and rights. It states the following: (1) A person may have either full or specific parental responsibilities and 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’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s 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). This section is extensive. However, it is clear that if you have parental responsibilities and rights in relation to a child, you would form part of the child’s life. Moreover, you would be part and parcel of important decision-making in the child’s life. With regard to Father’s Day, a father having parental responsibilities and rights in relation to a child should have contact on that special day. As it is clear from the above, the law looks at what is best for the child. And it would be best for the child to celebrate Father’s Day with his or her father. Now let’s move on to the best interests of the child principle.

Best interests of the child

Section 9 of the Children’s Act states the following: Best interests of child paramount.—In all matters concerning the care, protection, and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied. There you have it. The law does not look at the interest of the parents or other third parties. The law looks at what is best for the child. Now let us move on to the best interests of the child standard.

Best interests of the child standard

With regard to the best interests of the child standard, section 7 of the Children’s Act states the following: (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely— (a) the nature of the personal relationship between— (i) the child and the parents, or any specific parent; and (ii) the child and any other care-giver or person relevant in those circumstances; (b) the attitude of the parents, or any specific parent, towards— (i) the child; and (ii) the exercise of parental responsibilities and rights in respect of the child; (c) the capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs; (d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from— (i) both or either of the parents; or (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis; (f) the need for the child— (i) to remain in the care of his or her parent, family and extended family; and (ii) to maintain a connection with his or her family, extended family, culture or tradition; (g) the child’s— (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child; (h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (i) any disability that a child may have; (j) any chronic illness from which a child may suffer; (k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; (l) the need to protect the child from any physical or psychological harm that may be caused by— (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; (m) any family violence involving the child or a family member of the child; and (n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child. (2) In this section “parent” includes any person who has parental responsibilities and rights in respect of a child.   The Children’s Act refers to a variety of factors above. At the end of the day, what is best for the child is looked at.

Definition of “Care”

Before we end this article, we feel that it is important to deal with the aspect of care in the Children’s Act. What is meant by care? The Children’s Act 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’s 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’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development; (f) guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s 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;

Conclusion on the rights of a father on Father’s Day

From the above, it is clear that the law does not discriminate between fathers that were married to the mother and those who were not. What the law is only concerned with is what is best for the child. Various factors are looked at and those are outlined above. At the end of the day if it is in the child’s best interests to have contact with the father on Father’s Day; the law would enforce it.  

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Family Law Service – Advocate Muhammad Abduroaf – Finding the best lawyer for you.

Appeals and Reviews Advocate Muhammad Abduroaf South Africa Best Choosing the right law firm (Attorney or Advocate) can be a daunting task in the intricate landscape of legal matters. Whether you’re facing a complex litigation case, navigating corporate law, or seeking legal assistance for personal issues, the decision of which law firm to engage is crucial. At the firm Advocate Muhammad Abduroaf, we understand the significance of this decision, and we aim to demonstrate why choosing our firm can make all the difference.

Expertise and Specialisation

One of the primary reasons for choosing our law firm is our expertise and specialisation in diverse legal areas. As you can see from this website, Advocate Muhammad Abduroaf practices in various fields of law. This breadth of expertise ensures that no matter the nature of your legal issue, you will have access to knowledgeable and experienced professionals who can provide tailored solutions.

Personalised Approach

We recognise that every client and every case is unique. That’s why we prioritise a personalised approach to legal representation. From the moment you engage our services, we take the time to understand your specific needs, concerns, and objectives. This allows us to develop strategies and solutions customised to your circumstances, ensuring the best possible outcome for your case.

Commitment to Excellence

At Advocate Muhammad Abduroaf, excellence is not just a goal – it’s our standard. We are committed to providing our clients with the highest quality legal services, characterized by thorough research, meticulous attention to detail, and strategic thinking. Our track record of success speaks for itself, with numerous satisfied clients who have benefited from our dedication to excellence.

Responsive and Accessible

Legal matters can be stressful and overwhelming, so we prioritise responsiveness and accessibility. Our team is readily available to address your questions, concerns, and needs throughout your case. Whether you prefer to communicate via phone, WhatsApp, email, or in-person meetings, we are here to provide you with the support and guidance you need when you need it.

Cost-Effective Solutions

Legal representation shouldn’t break the bank. That’s why we are committed to providing cost-effective solutions that deliver value for our clients. We offer transparent billing practices and strive to minimise unnecessary expenses wherever possible, ensuring you receive top-notch legal services without the hefty price tag.

Ethical and Professional Conduct

Integrity and ethics are at the core of everything we do. Our team adheres to the highest standards of professional conduct, ensuring your case is handled with the utmost integrity, honesty, and discretion. You can trust that your legal matters will be handled with care and respect, and your confidentiality will always be protected. In conclusion, choosing the right law firm can significantly impact the outcome of your legal matters. At Advocate Muhammad Abduroaf, we offer expertise, specialisation, personalised service, commitment to excellence, responsiveness, cost-effective solutions, and ethical conduct. These qualities set us apart and make us the ideal choice for clients seeking top-notch legal representation. Contact us today to learn how we can assist you with your legal needs. If you require an Advocate Law Firm to assist you in your legal matter, feel free to contact us using the following details:
    • Tel.: 021 111 0090
    • Email.: [email protected]

The Firm: Advocate Muhammad Abduroaf

Trust Account Advocate. Advocate Muhammad Abduroaf is a registered firm with the Legal Practice Council of South Africa. It holds offices in Cape Town. However represents clients all over South Africa. If required, he would travel out to your province to attend to you matter. Advocate Muhammad Abduroaf is a Trust Account practice, which means it may take instructions directly from members of the public. This is compared to referral advocates who may not take instructions directly from members of the public. Advocate Muhammad Abduroaf’s practice allows clients to deposit money into their Trust Account. To do so, it needs to hold a valid fidelity fund certificate, which it does. Advocate Muhammad Abduroaf may appear on its client’s behalf in all courts in the Republic of South Africa. These include the Constitutional Court, the Supreme Court of Appeal, all High Court and magistrates courts in all provinces in South Africa. The services you may instruct the firm of Advocate Muhammad Abduroaf to represent you in are as follows:

High Court matters

  • Civil claim surrounding money;
  • Interdicts;
  • Divorces (Opposed and unopposed);
  • Child Custody and guardianship disputes;
  • Relocation of minor children;
  • Various criminal matters;
  • Minor children surname changes;
  • Appeals and Reviews; and
  • Other matters.

Magistrates Court matters

  • Civil claim surrounding money;
  • Various criminal matters;
  • Interdicts;
  • Maintenance Court matters;
  • Divorces Court matters (Opposed and unopposed)’
  • Children’s Court matter; and
  • Other matters.

Constitutional Court

  • Appeals

Supreme Court of Appeal

  • Appeals and Reviews

Consult with, or Instruct Advocate Muhammad Abduroaf

If you would like to have a legal advice consultation with Advocate Muhammad Abduroaf, feel free to use the Our Lawyer online appointment form by clicking here. Should you already have consulted with Advocate Muhammad Abduroaf and wish to mandate and instruct the firm, kindly proceed with completing the mandate form using this mandate link. We service clients throughout South Africa. These include: Cape Town Rustenburg Kimberley East London Nelspruit Polokwane Pietermaritzburg Bloemfontein Port Elizabeth Pretoria Durban Johannesburg

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