Module 2: Parent and Child Flashcards
What part of the Constitution is influences the relationship between parents and child?
The relationship between parents and child is influenced by the Children’s Rights clause of the Constitution (section 28).
When was the South African Charter on Rights and Welfare on the child written?
The South African Charter on the Rights and Welfare of the Child which was ratified on 7 January 2000.
What is the difference between the international children’s rights and the Children’s Act?
International children’s rights in the charter are made more specific in the constitution and the Children’s Act
How are pre-constitutional and post-constitutional relationships in law between parents and children different?
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
What is the definition of children
Children are defined as a person younger as 18, who are fully human and have fundamental human rights
what is the case Government of South Africa v Grootboom?
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
What are the fundamental principles reflected in the international law, constitution, children’s act and common law?
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.
What does paramount mean?
Paramount means is more important than other things
What needs to be considered when thinking about the best interest of the child?
- 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
When should the court apply the principle of paramount?
The court should apply the principle of paramount in a meaningful way without unduly obliterating other valuable and constitutionally protected interests
What does section 10 of the Children’s Act state and function?
The South African Children Act provides children with a voice in Section 10 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.
When does the Children’s Act require the child’s view to be taken into account?
- 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
What does the importance of autonomy increase with?
The importance of consulting children in decisions increases with their age and maturity. This Autonomy shouldn’t put a burden on the children.
What are the parental rights and responsibilities?
- 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.
What does guardianship deal with?
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
Which act provides Joint-guardianship?
The Guardianship Act in 1993, provides for joint-guardianship powers by mothers and fathers
What happens if a child has two or more guardians?
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
What is a natural guardian?
A childs biological parents are its natural guardians
What is a legal guardian?
A legal guardian is someone who has been appointed as the guardian of a child in a will or by a court
What does section 24 of the Childrens Act consider when there is an assignment of guardianship by order of court?
- 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
What are important transactions of Guardianship?
- 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
What is the default duty for parents?
The default responsibility for parents is joint responsibilities and equal rights and their is corporation
What is the definition of care according to the Childrens Act?
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
What does care include?
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.
What does custody and parental power refer to?
Custody and parental power refer expressly to the parents power to decide with whom their children may associate.
What is an important change from traditional common law to the Childrens Act?
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
What does care and custody focus on?
- Education
- Religion
- Where the child live
- Who the child associate with
- Discipling the child
what is the common law definition of custody?
Common law definitions of custody and parental power refer expressly to the parents power of moderate punishment.
How does Section 1 of the Children’s Act define care?
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.
Can parents admit corporal punishment on their children?
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
What does the Childrens Act state about corporal punishment?
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
What is contact?
Contact is primarily about maintaining a relationship between a parent and a child when they no longer share the same home.
What is contact in relation to a child in the Childrens Act section 1(1)?
- 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
What is Section 18(2)(d) of the Children Act?
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.
What is duty of support?
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
What legislation has to with maintenance?
Legislation that have duties of maintenance include the Divorce Act