Law: The ultimate protective parent
03 Jan 2022
Understanding the relationship between parenting and the law
The role of a mother and father are understood in different ways by diverse cultures and groups in our society. However, family law in South Africa makes sure that at its core, mothers and fathers are treated equally and also given the responsibility to care correctly for their children.
Legal&Tax Service’s Law Expert Chantel Cronje offers legal advice in understanding the relationship between parenting and the law.
Pregnancy and birth
According to various labour laws, no employee may be discriminated against or fired because of pregnancy or after having given birth.
The law gets even more interesting about this matter. We would assume that this rule would apply only to women. However, in fact, the legal documents state that ‘no person’ can be discriminated in this situation. This means that neither the mother nor the father can be treated unfairly during this time.
The Constitution also makes sure that the rights of all people, even those who are not working, are protected when pregnant or after giving birth.
Maternity and paternity leave
The law states that new mothers have the right to get four months of maternity leave. This means that they can stop working for four months to take care of their babies and they will have their jobs on their return.
However, the law does not state that their employer needs to pay them during these four months. Therefore the mothers have to claim Unemployment Insurance Fund (UIF) maternity benefits through the Department of Labour. Unfortunately, sometimes the amount of money they receive might be much less than their normal salary.
Recently, it does seem that lawmakers are aware of some of these problems with current laws around maternity and paternity rights. There have been some recent amendments to the labour laws that improve the conditions for maternity leave.
The law around paternity leave is also changing. Previously a father was only given three days of paid family responsibility leave that could be taken when their child was born. In January 2019 a new law was introduced that ensures working fathers get 10 consecutive days of paternity leave. At the time of writing this article, this law is expected to soon be finalised.
In addition, a parent adopting a child under the age of two years will be given between two weeks to two months of consecutive adoption leave. This also applies to parents whose children are born with a surrogate.
As confirmed above, one of the important provisions in Section 28(1) of the Constitution provides that every child has the right to basic nutrition, shelter, basic health care services, social services, education and the right to be protected from maltreatment, neglect, abuse or degradation.
Parental custody and access
According to the laws on children’s rights, both parents (with certain exceptions) have full parental rights and responsibilities.
In legal terms ‘full parental rights and responsibilities’ basically means both parents must:
- Care for the child;
- Maintain contact with the child;
- Act as guardian of the child; and
- Contribute to the maintenance of the child.
The terms ‘custody’ and ‘access’ previously referred to by Courts have now been replaced by the terms ‘care’.
‘Care’, as defined by the law, refers to not just where a child lives, but also the responsibility of parents in keeping their child safe, as well as making sure that their well-being and interests are always protected. ‘Care’ also means physical control over the child. This includes how a parent supervises (controls) the child’s daily life such as giving them food, support, education and other day-to-day needs.
According to the law, all major decisions relating to a child must take into account the views and wishes of both parents, as well as their child – depending on his or her age and level of understanding.
Ultimately, South African’s law around children’s rights places the interests of the children above all.
Therefore the most powerful legal guardian of all children in South Africa is in fact the High Court. If a parent or guardian is not fulfilling their duties then the High Court can get involved. This court has the power to transfer care of a child to another parent or person who would serve as their guardian.
‘Guardianship’ is defined by the law as the right and responsibility of an adult to manage a child’s interest and assets (possession or money they have), as well as to assist in legal and contractual situations, give consent for medical treatment, marriage or adoption or for them to travel out of the country.
Unmarried fathers
Recently the law has been focused on making sure that fathers get the chance to play an equally important part in their child’s upbringing, as mothers traditionally do.
The role of the father was made even stronger with the introduction of the Natural Fathers of Children Born out of Wedlock Act. This law gives a man who is the biological father of a child, but is not married to the mother, the right to ask the Court to give him access, custody or guardianship of their child.
A very important case that helped drive this law was that of Fraser v Children’s Court.
In this case, Lawrie Fraser was the unmarried father of a child put up for adoption by his former partner. According to the law of the time, a child was only consider legitimate (recognised by the law) if it had been born in wedlock (if the parents had gotten married in a ceremony recognised by the court). Because of this, the mother of Fraser’s child could put her child up for adoption without his consent, as they had not married. However, Fraser wanted to be able to adopt the child himself and so applied to the court about this situation.
The court ruled that indeed the right to equality had been violated.
The new law then also made sure to protect the rights of fathers of children born from a couple that had married in religious, but not civil weddings, such as in Islam and Hinduism.
Maintenance
Maintenance is the legal duty to support the financial needs and living expenses of your children and your dependant fellow parent.
If your child is in school, it is important to note that the South African Schools Act holds both parents – whether married, living together, separated or divorced – responsible for the school fees of either a biological or adopted child.
In previous cases, the law has forced unwilling parents, but who do have the money, to pay maintenance.
These parents are responsible to give financial support to their children, until the children can be self-supporting. This is usually understood as being when a child starts working and earning a salary.
In fact, if the child’s parents were or are married, then according to the law, even the grandparents can be held responsible for maintenance.
If you are not receiving maintenance from your child’s other parent, you can approach the Maintenance and Magistrates Court. Here you can fill out documents in order to apply for the court’s help in getting your former partner to pay up.
If a parent continuously refuses or neglects to pay, his/her credit record can be blacklisted.
Did you know that the Maintenance Amendment Act even allows court officials to use cellphone providers to track down parents who are not paying their maintenance?
Parents who do not pay maintenance can even face a three-year prison sentence without the option of paying a fine.
If you have questions about your rights and responsibilities as a mother or father, contact Legal&Tax Services. We are your caring companion in offering expert legal advice and outstanding legal plans that can help you best parent and protect your cherished children.
Article sourced from Legal&Tax.
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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Chantel Cronje
Chantel Cronje is a Senior Legal Advisor and the Manager of the Debt Solutions Department at Legal & Tax Services. Her daily duties include giving valuable legal advice and assistance... Read more about Chantel Cronje
