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The Children’s Act

What do i need to know about The Children's Act?

The Children’s Act 38 of 2005 is the first piece of legislation that codifies the law of parent and child and governs all laws relating to the care and protection of children.

The Act has moved away from the concept of parental authority and has introduced the term ‘Parental Rights and Responsibilities’ which now includes the following elements:

  • to care for the child
  • to maintain contact with the child
  • to act as a guardian for the child
  • to contribute to the maintenance of the child.

Common law terms such as ‘custody’ and ‘access’ have been replaced in terms of the Act with words like ‘care’ and ‘contact’ which incorporate a broader meaning in relation to the child.

Previously when a parent had ‘custody’, it meant that the child lived with this parent. However, the definition of ‘care’ is now broader than custody as it sets out various aspects of caring for a child. The idea is that parents should co-exercise parental responsibilities and rights and both parents should maintain a sound relationship with the child, no matter who the child lives with.

The Act is based on the principle that the best interests of the child is of paramount importance and the Act lists various factors which must be taken into consideration when a court has to decide what is in the best interest of the child.