Children need to have guidance as they grow up and learn to navigate their way through life. Children can become victims of exploitation and abuse if they do not have a responsible adult, that has their welfare at heart, present in their lives. The Children’s Act regulates the legal guardianship of children in South Africa and details the responsibilities and rights that guardians have in respect of the child that is in their care.
Who can be the Guardian of a Child?
First, we need to make a distinction between natural guardians and legal guardians:
The biological parents of a child have automatic parental responsibilities and rights with regard to the child, which includes guardianship. Parents are therefore referred to as natural guardians and they have an inherent obligation to fulfil this duty.
If the parents are unable to act as a child's guardian the court may appoint a legal guardian and anyone with a vested interest in the well-being of the child can apply for legal guardianship. A legal guardian is often a family member or good friend of the child’s parents. These individuals can file an application to the High Court, being the upper guardian of all minor children, to become legal guardians and the court will consider all the available information to determine whether or not they are fit to be the child’s guardian. Parents can also appoint a legal guardian in their Last Will and Testament to care for their children in the event of their death.
The court will always keep the child’s best interest at heart when considering the appointment of a legal guardian. The courts will also take a child’s wishes into account when deciding on the appointment of a guardian, the age and maturity of the child permitting. The appointment of a legal guardian does not affect the parent's responsibilities and rights towards their child and guardians are not financially responsible for these children. A legal guardian is also able to refuse this responsibility whereas natural guardians are not able to do so.
What is the Role of a Guardian?
Guardians are tasked with protecting a child’s property and assets, assisting them in legal and contractual matters, and they have a right to participate in major decisions about the minor child by giving or refusing their consent. These major decisions include marriage, adoption, applying for a passport, relocation out of the country and the sale of their property.
Guardians have a duty to manage a minor child’s finances responsibly and to adequately administer any assets and property they may own. This means that they have to oversee certain matters, such as the investment of money and the buying and selling of immovable property. This does however not mean that the guardian has a claim to the child’s possessions. They only act as administrators of the child’s interests and possessions to ensure that they are not taken advantage of and to provide the necessary consent. Minor children will also require their guardian's consent if they wish to enter into any contracts.
Legal guardianship is often a complicated issue that requires a certain degree of insight into the South African legal system. Contact Cawood Attorneys if you are in need of legal assistance and book a consultation with one of our qualified attorneys. We will help you navigate through complex legal avenues and hopefully provide you with some peace of mind for the future.