The implementation of the Children's Act on 1 April 2010 brought along positive changes in respect of the responsibilities and rights of parents. The best interest of the minor child is of paramount importance for the Court when making decisions affecting the minor child. The Act provides for full or specific responsibilities and rights in respect of a minor child for both parents whether married or unmarried, provided that unmarried fathers complies with the terms stated in Section 21 of the Children's Act. The same responsibilities and rights also applies to parents who have adopted a child. It is important to note that to refuse the other parent to exercise his/her parental responsibilities and rights in respect of a child may constitute an offence and liable on conviction to a fine or even imprisonment.
Other persons who do not have automatic responsibilities and rights in respect of a child, but has an interest in the well being of a child, such as grandparents or extended family, may apply to the relevant Court for an order that full or specific responsibilities and rights be awarded to such person where circumstances permit.
A key term used in the Children's Act is parental responsibilities and rights. This is used as a blanket term which covers care, contact, guardianship and maintenance in respect of a minor child.
What is Care?
With the implementation of the Children's Act, "custody" has been replaced with the concept of care. Care in respect of a minor child includes, but is not limited to, providing the child with a suitable place to live, providing the child with the necessary financial support and providing living conditions that are conducive to the child's health, well being and development.
What is Contact?
With the implementation of the Children's Act "access" has been replaced with the concept of contact. Contact in respect of a minor child means maintaining a personal relationship with the child, communicating with the child and visiting the child on a regular basis, whilst keeping in mind the best interest of the child. Contact is usually granted to the parent who does not have permanent residency of the minor child.
What is Guardianship?
Guardianship in respect of a child means to administer and safeguard the child's property, to represent the child in legal matters and to give consent where required by law. This includes issues such as consent to the child's marriage, adoption or removal of the child from the Republic.
It is important to note that a child may have more than one guardian, ie: both parents, and that the High Court is the upper guardian of all minor children.
What is Primary Residence?
Primary residence of a minor child is the home of the parent where the child will permanently reside, subject to the contact rights of the other parent or guardian. There is no presumption in favour of awarding primary residency to either parent and the Court has a wide discretion to act in the best interest of the minor child. The parents can also agree to have joint residency of the minor child, although this must be carefully considered and advised by the appropriate professionals.