The South African Children's Act, 38 of 2005

The Children's Act governs the laws relating to the care, contact and the protection of children. It defines the parental responsibilities and rights. It makes provision for the establishment of Children’s Courts (although the High Court is seen as the upper guardian) and the appointment of welfare (social workers and child care experts) officers. The Act also regulates the establishment of places of safety, orphanages and the rights of orphans and it sets out the laws for their adoption. In all cases, the guiding principle is the best interests of the child. 


Below is a summary of some of the most important provisions of the Children's Act, 38 of 2005, to download a full version of the Children's Act, scroll down to the end of the page.


CHAPTER 3 PARENTAL RESPONSIBILITIES AND RIGHTS (ss 18-41)

Part 1

Acquisition and loss of parental responsibilities and rights (ss 18-29)

18 Parental responsibilities and rights:

(1) A person may have either full or specific parental responsibilities and rights in respect of a child.

(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-

1. to care for the child;
2. to maintain contact with the child;
3. to act as guardian of the child; and
4. to contribute to the maintenance of the child.

(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-

1. administer and safeguard the child's property and property interests;
2. assist or represent the child in administrative, contractual and other legal matters; or
3. give or refuse any consent required by law in respect of the child, including-
4. consent to the child's marriage;
5. consent to the child's adoption;
6. consent to the child's departure or removal from the Republic;
7. consent to the child's application for a passport; and
8. consent to the alienation or encumbrance of any immovable
9. property of the child.

(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.

(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).

19 Parental responsibilities and rights of mothers

(1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

(2) If-

1. the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and
2. the biological father of the child does not have guardianship in respect of the child,
3. the guardian of the child's biological mother is also the guardian of the child.

(3) This section does not apply in respect of a child who is the subject of a surrogacy agreement.

20 Parental responsibilities and rights of married fathers

The biological father of a child has full parental responsibilities and rights in respect of the child-

1. if he is married to the child's mother; or
2. if he was married to the child's mother at-
3. the time of the child's conception;
4. the time of the child's birth; or
5. any time between the child's conception and birth.

21 Parental responsibilities and rights of unmarried fathers

(1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-

1. if at the time of the child's birth he is living with the mother in a permanent life-partnership; 
   or

1. if he, regardless of whether he has lived or is living with the mother-
2. consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law;
3. contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and
4. contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

(2) This section does not affect the duty of a father to contribute towards the maintenance of the child.

(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b) , the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.

(4) This section applies regardless of whether the child was born before or after the commencement of this Act.

22 Parental responsibilities and rights agreements

(1) Subject to subsection (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with-

1. the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or
2. any other person having an interest in the care, well-being and development of the child.

(2) The mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person contemplated in subsection (1) those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.
(3) A parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars.
(4) Subject to subsection (6), a parental responsibilities and rights agreement takes effect only if-

1. registered with the family advocate; or
2. made an order of the High Court, a divorce court in a divorce matter or the children's court on application by the parties to the agreement.

(5) Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.

(6) (a) A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated by the family advocate on application-

1. by a person having parental responsibilities and rights in respect of the child;
2. by the child, acting with leave of the court; or
3. in the child's interest by any other person, acting with leave of the court.

(b) A parental responsibilities and rights agreement that was made an order of court may only be amended or terminated on application-

1. by a person having parental responsibilities and rights in respect of the child;
2. by the child, acting with leave of the court; or
3. in the child's interest by any other person, acting with leave of the court.

(7) Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.

23 Assignment of contact and care to interested person by order of court

(1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children's court for an order granting to the applicant, on such conditions as the court may deem necessary-

1. contact with the child; or
2. care of the child.

(2) When considering an application contemplated in subsection (1), the court must take into account-

1. the best interests of the child;
2. the relationship between the applicant and the child, and any other relevant person and the child;
3. the degree of commitment that the applicant has shown towards the child;
4. the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
5. any other fact that should, in the opinion of the court, be taken into account.

(3) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court-

1. must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and
2. may suspend the first-mentioned application on any conditions it may determine.

​(4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

24 Assignment of guardianship by order of court

(1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.

(2) When considering an application contemplated in subsection (1), the court must take into account-

1. the best interests of the child;
2. the relationship between the applicant and the child, and any other relevant person and the child; and
3. any other fact that should, in the opinion of the court, be taken into account.

(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child's existing guardian is not suitable to have guardianship in respect of the child.

25 Certain applications regarded as inter-country adoption

When application is made in terms of section 24 by a non-South African citizen for guardianship of a child, the application must be regarded as an inter-country adoption for the purposes of the Hague Convention on Inter-country Adoption and Chapter 16 of this Act.

26 Person claiming paternity

(1) A person who is not married to the mother of a child and who is or claims to be the biological father of the child may-

1. apply for an amendment to be effected to the registration of birth of the child in terms of section 11 (4) of the Births and Deaths Registration Act, 1992 ( Act 51 of 1992 ), identifying him as the father of the child, if the mother consents to such amendment; or
2. apply to a court for an order confirming his paternity of the child, if the mother-

1. refuses to consent to such amendment;
2. is incompetent to give consent due to mental illness;
3. cannot be located; or
4. is deceased.

(2) This section does not apply to-

1. the biological father of a child conceived through the rape of or incest with the child's mother; or
2. any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation.

27 Assignment of guardianship and care

(1) (a) A parent who is the sole guardian of a child may appoint a fit and properperson as guardian of the child in the event of the death of the parent.

(b) A parent who has the sole care of a child may appoint a fit and proper person to be vested with care of the child in the event of the death of the parent.

(2) An appointment in terms of subsection (1) must be contained in a will made by the parent.

(3) A person appointed in terms of subsection (1) acquires guardianship or care, as
the case may be, in respect of a child-

1. after the death of the parent; and
2. upon the person's express or implied acceptance of the appointment.

(4) If two or more persons are appointed as guardians or to be vested with the care of the child, any one or more or all of them may accept the appointment except if the appointment provides otherwise.

28 Termination, extension, suspension or restriction of parental responsibilities and rights

(1) A person referred to in subsection (3) may apply to the High Court, a divorce court in a divorce matter or a children's court for an order-

1. suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child; or
2. extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

(2) An application in terms of subsection (1) may be combined with an application in terms of section 23 for the assignment of contact and care in respect of the child to the applicant in terms of that section.

(3) An application for an order referred to in subsection (1) may be brought-

1. by a co-holder of parental responsibilities and rights in respect of the child;
2. by any other person having a sufficient interest in the care, protection, well-being or development of the child;
3. by the child, acting with leave of the court;
4. in the child's interest by any other person, acting with leave of the court; or
5. by a family advocate or the representative of any interested organ of state.

(4) When considering such application the court must take into account-

1. the best interests of the child;
2. the relationship between the child and the person whose parental responsibilities and rights are being challenged;
3. the degree of commitment that the person has shown towards the child; and any other fact that should, in the opinion of the court, be taken into account.

29 Court proceedings

(1) An application in terms of section 22 (4) (b) , 23, 24, 26 (1) (b) or 28 may be brought before the High Court, a divorce court in a divorce matter or a children's court, as the case may be, within whose area of jurisdiction the child concerned is ordinarily resident.

(2) An application in terms of section 24 for guardianship of a child must contain the reasons why the applicant is not applying for the adoption of the child.

(3) The court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

(4) When considering an application contemplated in subsection (1) the court must be guided by the principles set out in Chapter 2 to the extent that those principles are applicable to the matter before it.

(5) The court may for the purposes of the hearing order that-

1. a report and recommendations of a family advocate, a social worker or other suitably qualified person must be submitted to the court;
2. a matter specified by the court must be investigated by a person designated by the court;
3. a person specified by the court must appear before it to give or produce evidence; or
4. the applicant or any party opposing the application must pay the costs of any such investigation or appearance.

(6) The court may, subject to section 55-

1. appoint a legal practitioner to represent the child at the court proceedings; and
2. order the parties to the proceedings, or any one of them, or the state if substantial injustice would otherwise result, to pay the costs of such representation.

(7) If it appears to a court in the course of any proceedings before it that a child involved in or affected by those proceedings is in need of care and protection, the court must order that the question whether the child is in need of care and protection be referred to a designated social worker for investigation in terms of section 155 (2).

Part 2

Co-exercise of parental responsibilities and rights (ss 30-32)

30 Co-holders of parental responsibilities and rights

(1) More than one person may hold parental responsibilities and rights in respect of the same child.

(2) When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where this Act, any other law or an order of court provides otherwise.

(3) A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.

(4) An agreement in terms of subsection (3) does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.

31 Major decisions involving child

(1) (a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person 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.
(b) A decision referred to in paragraph (a) is any decision-

1. in connection with a matter listed in section 18 (3) (c) ;
2. affecting contact between the child and a co-holder of parental responsibilities and rights;
3. regarding the assignment of guardianship or care in respect of the child to another person in terms of section 27; or
4. which is likely to significantly change, or to have an adverse effect on, the child's living conditions, education, health, personal relations with a parent or family member or, generally, the child's well-being.

(2) (a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) , that person must give due consideration to any views and wishes expressed by any co-holder of parental responsibilities and rights in respect of the child.

(b) A decision referred to in paragraph (a) is any decision which is likely to change significantly, or to have a significant adverse effect on, the co-holder's exercise of parental responsibilities and rights in respect of the child.

32 Care of child by person not holding parental responsibilities and rights

(1) A person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, including a care-giver who otherwise has no parental responsibilities and rights in respect of a child, must, whilst the child is in that person's care-

1. safeguard the child's health, well-being and development; and
2. protect the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional or mental harm or hazards.

(2) Subject to section 129, a person referred to in subsection (1) may exercise any parental responsibilities and rights reasonably necessary to comply with subsection (1), including the right to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent or guardian of the child.

(3) A court may limit or restrict the parental responsibilities and rights which a person may exercise in terms of subsection (2).

(4) A person referred to in subsection (1) may not-

1. hold himself or herself out as the biological or adoptive parent of the child; or
2. deceive the child or any other person into believing that that person is the biological or adoptive parent of the child.

Part 3

Parenting Plans (ss 33-35)

33 Contents of Parenting Plans(1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.(2) If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.

(3) A parenting plan may determine any matter in connection with parental responsibilities and rights, including-

1. where and with whom the child is to live;
2. the maintenance of the child;
3. contact between the child and-
4. any of the parties; and
5. any other person; and
6. the schooling and religious upbringing of the child.

(4) A parenting plan must comply with the best interests of the child standard as set out in section 7.

(5) In preparing a parenting plan as contemplated in subsection (2) the parties must seek-

1. the assistance of a family advocate, social worker or psychologist; or
2. mediation through a social worker or other suitably qualified person.

34 Formalities(1) A parenting plan-

1. must be in writing and signed by the parties to the agreement; and
2. subject to subsection (2), may be registered with a family advocate or made an order of court.

(2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must-

1. be in the prescribed format and contain the prescribed particulars; and
2. be accompanied by a copy of the plan.

(3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must-

1. be in the prescribed format and contain the prescribed particulars; and
2. be accompanied by-

1. a copy of the plan; and
2. a statement by-

(aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist; or

(bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person.

(4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.

(5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application-

1. by the co-holders of parental responsibilities and rights who are parties to the plan;
2. by the child, acting with leave of the court; or
3. in the child's interest, by any other person acting with leave of the court.

(6) Section 29 applies to an application in terms of subsection (2).

35 Section 35 - Refusal of access or refusal to exercise parental responsibilities and Rights

(1) Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22 (4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

(2)

1. A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as contemplated in subsection (1) must upon any change in his or her residential address forthwith in writing notify such other person of such change.

1. A person who fails to comply with paragraph (a) is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

Part 4

Miscellaneous (ss 36-41)

36 Presumption of paternity in respect of child born out of wedlock

If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.

37 Refusal to submit to taking of blood samples

If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.

38 Effect of subsequent marriage of parents on child

(1) A child born of parents who marry each other at any time after the birth of the child must for all purposes be regarded as a child born of parents married at the time of his or her birth.

(2) Subsection (1) applies despite the fact that the parents could not have legally married each other at the time of conception or birth of the child.

39 Rights of child born of voidable marriage

(1) The rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage.

(2) No voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.

(3) Section 6 of the Divorce Act and section 4 of the Mediation in Certain Divorce Matters Act apply, with the necessary changes required by the context, in respect of such a child as if the proceedings in question were proceedings in a divorce action and the annulment of the marriage were the granting of a decree of divorce.

(4) Section 8 (1) and (2) of the Divorce Act apply, with the necessary changes as the context may require, to the rescission or variation of a maintenance order, or an order relating to the care or guardianship of, or contact with, a child, or the suspension of a maintenance order or an order relating to contact with a child, made by virtue of subsection (3).

(5) A reference in any law-

1. to a maintenance order or an order relating to the custody or guardianship of, or access to, a child in terms of the Divorce Act must be construed as a reference also to a maintenance order or an order relating to the custody or guardianship of, or access to, a child in terms of that Act as applied by subsection (3);
2. to the rescission, suspension or variation of such an order in terms of the Divorce Act must be construed as a reference also to the rescission, suspension or variation of such an order in terms of that Act as applied by subsection (4).

(6) For purposes of this Act, the father of a child conceived of a voidable marriage where such marriage has been annulled is regarded to be in the same position as the father of a child who has divorced the mother of that child.

40 Rights of child conceived by artificial fertilization

1. Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation.
2. For the purpose of paragraph (a) it must be presumed, until the contrary is proved, that both spouses have granted the relevant consent.

(2) Subject to section 296, whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman.

(3) Subject to section 296, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when-

1. that person is the woman who gave birth to that child; or
2. that person was the husband of such woman at the time of such artificial fertilisation.

41 Access to biographical and medical information concerning genetic Parents

(1) A child born as a result of artificial fertilisation or surrogacy or the guardian of such child is entitled to have access to-

1. any medical information concerning that child's genetic parents;
2. and any other information concerning that child's genetic parents but not before the child reaches the age of 18 years.

​(2) Information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete was or gametes were used for such artificial fertilisation or the identity of the surrogate mother.

(3) The Director-General: Health or any other person specified by regulation may require a person to receive counselling before any information is disclosed in terms of subsection (1).

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