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PARENTAL RESPONSIBILITIES AND RIGHTS
Parental “authority” or parental “power” as it was traditionally referred to in South Africa, was defined in terms of the common law as “… the sum total of rights and duties of parents in respect of their minor children arising out of parentage”.18 The term usually denoted a legal nexus,19 rather than a biological link, between parent and child. Although the natural or biological parents, in most cases, had parental “power” in respect of their children (and thus had legal parenthood), as in the case where a married couple procreated, parentage was never a sine qua non for the acquisition of parental “power” nor has parental “power” in all cases been an automatic incidence of being a (biological) parent.20 The same holds true for the position after the enactment of the Children’s Act.21 The following two examples will support this supposition: A third party, such as a grandparent,22 may be awarded parental responsibilities and rights in cases where the parents cannot or do not exercise their rights, duties and responsibilities in the best interest of their children, while an unmarried natural father, despite being a (biological) parent, will not necessarily automatically acquire parental responsibilities and rights in respect of his child born out of wedlock.23 Determining who a child’s biological parent (parentage) is, will, therefore, still not necessarily answer the question of who has parental responsibilities and rights in respect of the child. unenforceable in the traditional sense since it attempts to regulate human relationships. Parents cannot ultimately be forced to see children, or children to see parents … If therefore family law is to have any real influence on family behaviour it is more likely to be at the conceptual level – through what it attempts to tell us about desirable or acceptable models of family life”.
A few examples can be used to illustrate the point:
(a) A natural father25 has biological parenthood until such time as he acquires parental responsibilities and rights, at which stage his status will be elevated to that of a legal father with legal parenthood.
(b) A biological parent who is married has legal parenthood in respect of a child born from the marriage until the court terminates that parent’s parental responsibilities and rights in which case the parent will only have biological parenthood.
(c) A grandparent, uncle, aunt or interested person may be vested with parental responsibilities and rights but can never derive their status from either biological or legal parenthood.
Parental “responsibility”, according to this view, is distinct from both biological and legal parenthood in that, while it confers extensive powers and duties normally exercised by parents, it does not create the status of legal parenthood27 and it can be vested in many categories of carers who are not biologically connected with children. the three elements may in other cases be vested in same person (as is the case, for example, with a biological parent who is married).
SECTION A: GENERAL INTRODUCTION
CHAPTER 1: INTRODUCTION
CHAPTER 2: TERMINOLOGY
CHAPTER 3: RESTRUCTURING OF THE LAW PERTAINING TO THE ACQUISITION OF PARENTALRESPONSIBILITIES AND RIGHTS
SECTION B: THE VARIOUS WAYS IN WHICH FULL PARENTAL RESPONSIBILITIES AND RIGHTS CAN BE ACQUIRED
CHAPTER 4: AUTOMATIC (EX LEGE) ACQUISITION OF FULL PARENTAL RESPONSIBILITIES AND RIGHTS
CHAPTER 5: ASSIGNED ACQUISITION OF FULL PARENTAL RESPONSIBILITIES AND RIGHTS
CHAPTER 6: ASSIGNED ACQUISITION OF FULL PARENTAL RESPONSIBILITIES AND RIGHTS IN THE CASE OF SURROGATE MOTHERHOOD
CHAPTER 7: ASSIGNED ACQUISITION OF FULL PARENTAL RESPONSIBILITIES AND RIGHTS BY MEANS OF AN ADOPTION ORDER
CHAPTER 8: DIVERSE ASPECTS RELATING TO THE ACQUISITION OF PARENTAL RESPONSIBILITIES AND RIGHTS
SECTION C: CONCLUSION
CHAPTER 9: CONCLUDING REMARKS
TABLE OF LEGISLATION AND INTERNATIONAL
INSTRUMENTS
TABLE OF CASES
BIBLIOGRAPHY
LIST OF ABBREVIATIONS
INDEX
