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Family law > Module 2: Parent and Child > Flashcards

Module 2: Parent and Child Flashcards

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1
Q

What part of the Constitution is influences the relationship between parents and child?

A

The relationship between parents and child is influenced by the Children’s Rights clause of the Constitution (section 28).

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2
Q

When was the South African Charter on Rights and Welfare on the child written?

A

The South African Charter on the Rights and Welfare of the Child which was ratified on 7 January 2000.

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3
Q

What is the difference between the international children’s rights and the Children’s Act?

A

International children’s rights in the charter are made more specific in the constitution and the Children’s Act

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4
Q

How are pre-constitutional and post-constitutional relationships in law between parents and children different?

A

In pre-constitutional law children were looked at as property and parents had the right of life and death over children. Parental rights post-constitutional focuses primarily on the rights of child and the responsibilities if the parents

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5
Q

What is the definition of children

A

Children are defined as a person younger as 18, who are fully human and have fundamental human rights

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6
Q

what is the case Government of South Africa v Grootboom?

A

In Government of South Africa v Grootboom, the Constitutional Court held that the primary responsibilities for fulfilling the constitutional rights to food, shelter and health care fall on the child’s parents or other family, unless the family cannot

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7
Q

What are the fundamental principles reflected in the international law, constitution, children’s act and common law?

A

The fundamental principles reflected in the international law, constitution, children’s act and common law is the best interest principle. The best interest principle is uncertain but not meaningless because section 7 of the children’s act shows factors to look at when considering the best interest of the child. The right in the Constitution states the child’s best interest must be Paramount.

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8
Q

What does paramount mean?

A

Paramount means is more important than other things

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9
Q

What needs to be considered when thinking about the best interest of the child?

A
  • The court held that the fact that the best interests of the child are paramount doesn’t mean they are absolute. Despite this law we need to consider that the child’s interest is not more important than others interest.
  • Think of the interest as with the bounds of the relationship between all family members and all other relationships. The best interest of the child doesn’t always equal their wishes
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10
Q

When should the court apply the principle of paramount?

A

The court should apply the principle of paramount in a meaningful way without unduly obliterating other valuable and constitutionally protected interests

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11
Q

What does section 31 of the Children’s Act state and function?

A

The South African Children Act provides children with a voice in Section 31 of the Act. it states that people must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

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12
Q

When does the Children’s Act require the child’s view to be taken into account?

A
  • That affect their living conditions, health and education
  • That affect important relationships between family members
  • That have an impact on which of their parent have parental rights and responsibilities
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13
Q

What does the importance of autonomy increase with?

A

The importance of consulting children in decisions increases with their age and maturity. This Autonomy shouldn’t put a burden on the children.

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14
Q

What are the parental rights and responsibilities?

A
  • Guardianship- focuses on legal assistance in certain legal actions on behalf of the child and with the child.
  • Care/custody- focuses on the daily life of the child. Older children can have more sat in their daily life
  • Contact/access- maintaining a relationship with the child. Through a physical presence or communication with the child
  • Maintenance- financial provisions for the child. This rests on both parents but doesn’t have to be equally distributed or in the same form. The extent of the duty depends on the parent’s abilities and the child’s needs.
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15
Q

What does guardianship deal with?

A

Guardianship deals with the administrative affairs of a child. The guardian must administer and safeguard the child’s property and property interests, assist or represent the child in administrative, contractual and any legal matters

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16
Q

Which act provides Joint-guardianship?

A

The Guardianship Act in 1993, provides for joint-guardianship powers by mothers and fathers

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17
Q

What happens if a child has two or more guardians?

A

If a child has two or more guardians, they may act independently of each other, except for the activities in section 18 (3)(c) of the Childrens Act, which are any important transactions relating to the child

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18
Q

What is a natural guardian?

A

A childs biological parents are its natural guardians

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19
Q

What is a legal guardian?

A

A legal guardian is someone who has been appointed as the guardian of a child in a will or by a court

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20
Q

What does section 24 of the Childrens Act consider when there is an assignment of guardianship by order of court?

A
  • The best interests of the child
  • The relationship between applicant and the child and any other relevant person and the child
  • Any other factor that should in the opinion of the court be taken into account
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21
Q

What are important transactions of Guardianship?

A
  • Applying for passports or changing citizenship
  • Permission to marry
  • Adoption
  • Dealing with the immovable property of the child
  • Giving permission for legal contracts concluded by the child
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22
Q

What is the default duty for parents?

A

The default responsibility for parents is joint responsibilities and equal rights and their is corporation

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23
Q

What is the definition of care according to the Childrens Act?

A

The definition of ‘care’ in the Children’s Act is much broader than the traditional understanding of custody and more child centered. Care has a much wider ambit than custody.
Section 1(1) of the Childrens Act defines care in relation to a child

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24
Q

What does care include?

A

Care includes prompting the well-being of the child, maintaining a sound relationship with the child and of paramount importance attending to the best interests of the child.

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25
Q

What does custody and parental power refer to?

A

Custody and parental power refer expressly to the parents power to decide with whom their children may associate.

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26
Q

What is an important change from traditional common law to the Childrens Act?

A

Important change to the traditional common law concept of parental power is the relative status of mothers and fathers. In terms of the Childrens Act, mothers and fathers who live together expected to corporate in exercise of their responsibilities

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27
Q

What does care and custody focus on?

A
  • Education
  • Religion
  • Where the child live
  • Who the child associate with
  • Discipling the child
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28
Q

what is the common law definition of custody?

A

Common law definitions of custody and parental power refer expressly to the parents power of moderate punishment.

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29
Q

How does Section 1 of the Children’s Act define care?

A

Section 1 of the Childrens Act talks about guiding the behavior of the child in a humane manner and maintaining a sound relationship with the child.

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30
Q

Can parents admit corporal punishment on their children?

A

Care requires parents to protect their children from maltreatment, abuse, degradation and any other physical or emotional harm and to respect, protect and promote the children’s rights as set out in the Bill of Rights

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31
Q

What does the Childrens Act state about corporal punishment?

A

Chapter 8 of the appropriate Act has interventions for children with families where the children are at risk of harm. It regulates removal into alternative care. Section 144(1)(b) notes that early intervention appropriate must focus on developing appropriate parenting skills

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32
Q

What is contact?

A

Contact is primarily about maintaining a relationship between a parent and a child when they no longer share the same home.

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33
Q

What is contact in relation to a child in the Childrens Act section 1(1)?

A
  • Maintaining a personal relationship with the child
    If the child lives somewhere else:
    • Visiting the child or
    • Being visited by the child
  • Communication on a regular basis with the child in any other manner, including:
    -Through the post
    -By telephone or any other form of electronic communication
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34
Q

What is Section 18(2)(d) of the Children Act?

A

Section 18(2)(d) of the Children’s Act is duty to contribute to the maintenance of the child, which means part of the parents duty is support.

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35
Q

What is duty of support?

A

Parents have a duty to support their children by providing for their children’s needs, either by providing the things they need or by providing money towards payment of these things

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36
Q

What legislation has to with maintenance?

A

Legislation that have duties of maintenance include the Divorce Act

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37
Q

What are parents primary responsibility?

A

In the Constitution children have rights to food, shelter and health care- parents are primarily responsible for fulfilling these rights

38
Q

Who does maintenance primarily rest on?

A

Maintenance primarily rest on the parents and only when they can’t provide will the state, extend family member have this responsibilities as well

39
Q

What is duty of maintenance in customary law?

A

The duty of maintenance in customary law is more widespread then in common law In common law the governments duty to maintain the child only arises when the parents can’t do so themselves

40
Q

When dose maintenance of a child stop?

A

The general rule is that the parental role to maintain a child stops at 18 unless the child can’t maintain themselves or if the child continues higher education according to the ruling of Butcher v Butcher

41
Q

What are the primary duties of support in the Childrens Act and where were they found?

A

The primary support duties that arise from the Childrens Act are found in section 18(2)(b) which is the duty to contribute to the maintenance of the child and in the definition of care section 1(1) with part (g) states parents need to secure their childrens education, part (i) requires parents to accommodate any special needs their children may have, part (d) secure fulfillment of their childrens consitutional rights which includes the children rights to food, shelter and health care.

42
Q

When does the common law duty of support stop?

A

The common-law duty of support terminates when the child no longer needs to support. Even if the child is still very young, the common law support by the death of the parents-children have a support claim against their deceased parents estates.

43
Q

What are the requirements for a duty of support?

A
  • Legal recoginised relationship
  • Ability to maintain
  • Need for maintenance
44
Q

When does Common law reciprocal duties of support arise between people?

A
  • There is particular kind of legal relationships between them.
  • This person from whom suggest is claimed has the necessary means to supply this support. However, people who have legal duties to support must make an effort to earn enough money to provide this support
  • The person who is claiming support. The duty of support is limited to necessary support. The content and scope of the duty of support depends on the standard of living of the particular family
45
Q

What is the reciprocal relationship in duty and support?

A

The duty of all support in relationships is a reciprocal but not equal. Children may also have duties to support their parents, when parents grow old and retire, the support duty might operate in the opposite direction.

46
Q

What does the extent of support depend on?

A

The need to support depends on the standards of the family. The duty for support rests on both parents and not is exchange for other rights and responsibilities of the child. It is on Pro rata means proportional, the parent who earns more pays more.

47
Q

What is the duty of support in relation to fathers?

A

The duty of support exists with even if the father does not have rights and responsibilities

48
Q

What do you need to consider the Childrens Act in relation to?

A

When considering the children’s act we need to consider it in relation to, the common law, the statue, the constitution and legislation. The state dosen’t change the common law unless it it specifically states so

49
Q

What are the different types of caregivers?

A
  • A foster parent
  • A person who care for a child with the implied or express consent of a parent or guardian
  • A person who cares for a child whilst the child is in temporary safe care
  • The person at the head of a child and youth care center where a child has been placed
    The person at the head of a shelter
  • A child and youth care worker who care for a child who is without appropriate family care in the community
  • The child at the head of a child-headed household
50
Q

Who is a care-giver?

A

A care-giver is any person other than the a parent or guardian, who factually cares for a child according to section 1(1)

51
Q

What sections of the Childrens Act grant biological married parents rights and responsibilities?

A

Biologically married parents acquire parental responsibilities and rights automatically in terms of sections 19 and 20 of the Children’s Act.

52
Q

How do biological mothers gain full parental rights and responsibilities?

A

According to section 19 of the Children’s Act biological mothers automatically requires full parental responsibilities of the child she gives birth too, theses rights and responsibilities are irrespective of marital status.

53
Q

What are the exceptions of section 19?

A

If the biological mother is an unmarried child she will not have guardianship only the guardianship rights will be passed to her parents until she turns 18 unless the baby’s biological father acquires guardianship.

54
Q

How do married biological fathers gain full parental rights and responsibilities?

A

Section 20 of the Children’s Act states the biological fathers who are married to the mother at conception of the child, during the birth or any time between gains full parental rights and responsibilities. This man is presumed to be the father of the child, by pater est quem nuptia demonstrant which means Fatherhood is demonstrated by marriage

55
Q

What does pater est quem nuptia demonstrant mean?

A

It means Fatherhood is demonstrated by marriage

56
Q

What does presumption in law mean?

A

A presumption is a legal starting point/ a rule of thumb and can be rebutted on a balance of probabilities.

57
Q

What does the child’s paternity effect?

A

The fathers paternity affects the child’s rights to maintenance and inheritance and will also affect care, contact and guardianship

58
Q

What are the ways in which the father can rebut the paternity assumption?

A
  • No sexual intercource- He needs to provide evidence and convince the court. Boerg said this evidence could be his own testimony or plausible circumstances
  • Gestation period- Court rely on medical evidence and no longer rely on fixed gestation period
  • I am sterile- He can claim that he is not physically capable of procreating a child. This can be be by proving that he is sterile or has a low sperm count
  • I used a condom- This statement cannot rebut the presumption of paternity
  • The child doesn’t look like me- the defence of appearance cannot be used to prove paternity or rebut it. R v Stephen Jood, is an extremely unsatisfactory and dangerous method of supporting a conviction, since it is a matter of daily experience that one person will see a likeness where another can see none
  • She slept with another man- The defence of extra-marital affairs is known as the exceptio plurium concubentium. It serves only to show he might not be the father not that he is not
  • Let’s go for a blood testing
59
Q

What is exceptio plurium concubentium?

A

Its the defence of extra-marital affairs

60
Q

What is good and bad evidence to dispute paternity?

A

Good evidence that contradicts the presumption of paternity is medical evidence of sterility or actual evidence that there was no intercourse during. Less reliable evidence that contradicts the presumption of paternity is the women slept with more than one man, appearance of the child, contraception

61
Q

What is the presumption of paternity based on?

A

Section 36 of the children’s act put the common law assumption that any man who slept with the mother of the child during that period will be assumed the father. Before the presumption of paternity the person must have had sexual intercourse with the mother and it must have take place during the time when the child could have been conceived.

62
Q

What law forces parents to submit to DNA testing?

A

Their is no statuary right for either designated parents to insist on paternity tests in the Childrens Act. The court is reluctant may be reluctant to declare that the person is/isnt the father and so may not allow blood tests if its in the best interest of the child

63
Q

What case set a precedent for paternity tests?

A

In the case of YM v LB the court stated no parent can force the other to get a paternity test but a case can be brought up in the court and a court can order a paternity test if it’s in the best interest of the child. The court has jurisdiction to compel a blood test if its in the best interest of the child

64
Q

What does the Children’s Act say about paternity?

A

Section 37 of the Children’s Act states that a refusal to submit to tests will affect the credibility of the refusing person and the court will take this into account. Refusal could be based on religious reasons or on the argument that forcing a person to undergo a blood test violates their constitutional rights to privacy, bodily integrity and to freedom and security of the person.

65
Q

Which part of the Constitution puts a limits on rights?

A

Rights may be limited where it is reasonably and justifiable, applying the criteria in section 36(1) of the constitution

66
Q

Which section of the Children’s Act gives unmarried fathers full rights and responsibilities?

A

Unmarried fathers who want to claim parental rights and responsibilities can do so by section 21 of the Children’s Act. Even without parental rights and responsibilities, they are obligated to support the child financially

67
Q

What does Section 21(1) of the Childrens Act state?

A

a) If at the time of he childs birth he is living with the mother in a permeant life-partnership or
b) If he regardless of weather he has lived with the mother,
i) concerts to be identified as the childs father or applies to be identified in terms of section 26 or pays customary law damages
ii) contributes or has attempted in good faith to contribute to the childs upbringing for a reasonable period and
iii) contributes or has attempted to contribute towards expenses in connection with maintenance of the child for a reasonable period

68
Q

What happens if their is a dispute between parents due to acquiring full parental rights and responsibilities?

A

If disputes arise between parents about whether the father meets the requirements, the Childrens Act makes professions for medication and the matter must be refered to a family advocate, social worker, social service professional or any other suitable person

69
Q

How does section 21(1)(a) allow unmarried fathers to gain full rights and responsibilities?

A

They can do this by living with the mother at the time of the childs birth or if consented to be the childs father at the time of birth/paying customary damages and contributed to the upbringing or maintenance of the child for a reasonable time

70
Q

How can unmarried fathers amend a childs birth certificate and what are the expectations?

A

An amendment to a childs birth certificate to add the biological unmarried father can be done with the mothers consent or by a court order confirming his paternity according to section 11(4) of the Births and Deaths Registration Act 51 of 1992
Section 11(4) of the Births and Deaths Registration Act 51 of 1992 excludes biological fathers of a child concieved through the rape or incest of the mother or any person who is related to the child by being a gamate donor from registering themselves

71
Q

What are ways to promote Cooperative parental rights and responsibilities?

A
  • Principle of joint rights and responsibilities
  • The need to foster cooperation between the holders
  • Parental rights and responsibilities agreements and parenting plans
72
Q

How can parental rights and responsibilities be terminated?

A

Parental and responsibilities can be terminated by the child not needing support anymore, by the court due to divorce or termination

73
Q

What does section 21(2) of the Childrens act highlight?

A

According to section 21(2) of the Childrens Act the biological father will always have to contribute to the childs maintance. The duty to maintain a child doesn’t give the person rights and responsibilities of the child. You cannot bargain for parental rights and responsibilities for paying maintenance

74
Q

How does the High Court promote Childrens rights?

A

The High Court is the upper guardian of all minors within their jurisdiction. Court has to deal with all issues relating to children by the Common law and the Childrens Act. It gives them wide powers to relate cases in regard to Children.

75
Q

What does the High Court have authority to do in cases regarding children?

A

The High Court has authority to decide, overrule, intervene, limit and end authority of parents, as well as make decisions that arent found in the Childrens Act. All decisions made have to be in the best interest of the child

76
Q

What does section 28 of the Childrens Act state?

A

According to Section 28 of the Childrens Act the court can suspend or reduce a parents rights and responsibilities in relation to the child if it in the best interest of the child

77
Q

Who can bring application to in regard to section 28 of the Childrens Act?

A
  • A co-holder of the childs parental rights and responsibilities
  • Any person having sufficient interest in the care, protection and wellbeing of the child
  • The child acting with leave from the court
  • Any other person, in the childs best interest. Acting with cleave from the court
  • By the family advocate or a representative of state
78
Q

Which courts can cases relating to section 28 of the Childrens act be brought?

A

Application of section 28 may be bright up to the High Court, divorce court, if its a divorce matter or the childrens court.

79
Q

What must courts considered when courts receiving a section 28 application?

A
  • The best interest of the child
  • The relationships of the child and the parties
  • The degree of commitment the person has shown towards the child
  • Any other factors that according to the court should be considered
80
Q

What are the sections of the Children’s Act that lays out circumstances in which an appellant can approach the High court for certain parental rights ?

A
  • Section 23: biological father or any person with an interest in well being of the child, such as contact/care
  • Section 24: Biological fathers or any other person with the interest in the wellbeing of the child, such as duty of guardianship (the narrower sense of administration)
  • Section 26: application by biological father to be recorded as the father on the birth certificate
81
Q

What does section 23 of the Children’s Act state?

A

Section 23 empowers the court to make an order assigning the care and contact aspects of the parental responsibilities and rights to any person having an interest in the care, well-being of the child. They will do this if considered in the order to be in the best interests of the child. They will do this by considering the degree of commitment this person has shownthe child and the extent to which the applicant has contributed top maintenance . This doesnt affect the parental rights and responsibilities of anyone else

82
Q

What does section 24 of the Children’s Act state?

A

Section 24 deals with guardianship and the High Court may assign guardianship that this is in the childs best interests. Section 24 has a subsection that if they bring up a case they need to indicate why existing guardians are not suitable

83
Q

What does section 22 of the Children’s Act state?

A

Section 22 of the Childrens Act allows a formal agreement between a person who has parental rights and responsibilities and another person. This document must be registered with the family Advocate or approved court. This is as it is usually awarding someone else with parental rights and responsibilities. The family advocate or the court must be satisfied that the parental agreement is in the best interest of the child. Only the High Court can amend, confirm or terminate a parental agreement that relates to the guardianship of the child.

84
Q

What does section 33 of the Childrens Act state?

A

Section 33 of the Childrens Court helps parents make a less formal agreement which is a parenting plan, which highlight show co-holders will exercises these rights and responsibilities. Section 33(3) provides that a parenting plan may determine in connection with parental rights and responsibilities.

85
Q

What are the matters that have to be included in a parenting plan?

A
  • Where and with whom the child lives
  • The maintenance of the child
  • Contact between the child and: any other parties and persons
  • The schooling and religious upbringing of the child
86
Q

Where do you find the matters that need to be covered in a parenting plan?

A

Matters included in a parenting plan are set out by section 33(3)(a)-(d)

87
Q

What is the goal of a parenting plan and who needs to be consulted?

A

A parenting plan must be in the best intrest of the child as set out in section 7. When drawing the plan parents must seek assistance of family advocate, social worker, or psychologist or must seek meditation from a social worker or other suitable qualified person

88
Q

What does section 27 of the Childrens Act state?

A

Section 27 of Childrens Act, a parent who has sole guardianship or sole care/contact, can assign rights and responsibilities to a person in their will. The person must accept this responsibility.

89
Q

What dos section 35 of the Childrens Act state?

A

According to section 35 of the Childrens Act any person who has care over a child and contrary to a court order or parental rights and responsibility agreement, refuses another person access to that child or prevents that person from exercising their rights and responsibilities will be guilty of an offence and liable on convection to a fine or imprisonment for a period not exceeding a year

90
Q

What are the limitation of co-holders of parental rights and responsibilities?

A

Co-holders of parental rights and responsibilities can act independently according to section 30 but must act together in issues in section 18(3)(c) and section 31 states that when a parent is makes a decision that could affect the other parents ability to exercise their rights and responsibilities they must give due consideration to the views and wishes expressed by the other parent.

91
Q

What does section 36 of the Children’s Act state?

A

Section 36 states the presumption of paternity for unmarried fathers

Family law (11 decks)

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