The guardianship of children holds immense significance in both the lives of the children themselves and their parents. Whether it's a parent or another individual seeking sole guardianship, a comprehensive understanding of the responsibilities and expectations associated with guardianship is essential.
Legislation
According to sections 18(2)(b) and 18(3) of the Children's Act, 38 of 2005, a guardian is tasked with several crucial responsibilities:
- Managing and safeguarding the child's property and interests.
- Assisting or representing the child in various legal matters, including administrative and contractual affairs.
- Providing or withholding consent as required by law, such as consent for marriage, adoption, or the child's departure from the country.
While natural guardianship typically lies with the parents, instances may arise where they are unable to fulfil their duties. In such cases, the court appoints a legal guardian for the children, with the High Court of South Africa serving as the overarching guardian for all children within the country.
Should a guardian find themselves dissatisfied with their obligations outlined in the Act, recourse can be sought through the High Court of South Africa. The court holds the authority to terminate guardianship and transfer the care of the child to another individual or parent, sparking discussions on the circumstances under which guardianship may be revoked from a parent or awarded to a third party.
Various factors are considered in such determinations:
- The parent's demonstrated interest in establishing or maintaining a relationship with the child.
- The frequency of contact between the parent and the child.
- The ability of the prospective sole guardian to provide for the child independently.
- The paramount consideration of the child's best interests.
- Compliance with parental rights and responsibilities regarding contact, care, or maintenance.
When to Initiate a Guardianship Application
A guardianship application may be necessary under the following circumstances:
- Lack of contribution from an ex-spouse towards the child's upbringing.
- Travel plans with the child outside the country.
- Necessity for documents like an unabridged birth certificate or passport.
- Potential adoption of the child by a new spouse.
If one parent has been solely responsible for making decisions regarding the child's welfare and the other parent refuses to cooperate in instances where joint consent is required, initiating a guardianship application becomes imperative. This ensures the ability to make daily decisions in the child's best interests.
Conclusion
The appointment of a child's legal guardian demands a fit and trustworthy individual who can responsibly fulfil the role. When necessary, legal guardians can be appointed through applications to the High Court of South Africa. Importantly, such appointments do not alter parental rights and responsibilities, nor do they impose financial obligations on the legal guardian.
Written by Robyn Shepherd, SchoemanLaw