Tag Archives: Children’s Act

Can surrogate parents get maternity leave?

a2bAlex and Ben are in love and decide to enter into a civil union on 31 October 2010 in terms of the Civil Union Act[1]. Everything is going great and a year later they decide as a couple to enter into a surrogacy agreement with a surrogate mother in terms of which they shall have a baby. The surrogacy agreement was in accordance with the Children’s Act[2] and was confirmed by Court Order.
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Ben and Alex discussed the logistics pertaining to their new bundle of joy. In terms of the Surrogacy Agreement they will be handed the child directly after birth, without the surrogate even catching sight of it. One or both of them will have to be available to care for the new-born from the moment of birth.

They decided that Alex would be the one to apply to his employer for paid maternity leave for a period of four months. This maternity application to his employer was in terms of the prescriptions of the Basic Conditions of Employment Act[3] (BCEA) and more specifically in terms of his company’s policy on maternity leave.

The company’s decision

Alex received feedback from his Human Resources Department, informing him that his application for maternity leave was rejected in terms of the company’s policy and the BCEA, as neither provides for the issuing of maternity leave for surrogate parents. As a counter offer Alex was offered and subsequently accepted two months paid adoption leave and two months’ unpaid leave.

Alex referred the dispute to the CCMA on the basis of unfair discrimination, because his company refused to grant his application for maternity leave due to the fact that he is not the biological mother of his child. They further argued that a commissioning parent party to a surrogacy agreement is not entitled, in terms of their company policy, to the full and due four months paid leave as females are under the same policy.

Alex was not at all satisfied with the treatment received by his company and he felt that he has been discriminated against, as the Children’s Act and the Civil Union Act both recognised his status and rights as a commissioning parent. There was therefore no excuse as to why his company and the BCEA should not recognise it as well.

The CCMA, upon hearing the matter, established that Alex’s company’s policies were similar but more stringent than the BCEA in that they provided separately for adoption leave as offered to Alex and Ben, and not at all for surrogacy rights to leave. Furthermore, it came to light that due to recent legislative developments as mentioned above, there was no reason why Alex should not be entitled to maternity leave and that such maternity leave should be granted for the full and/or same period as any other mother is entitled to.

Upon hearing submissions from Alex, Ben and Alex’s employer the CCMA decided that by refusing Alex’s application for maternity leave Alex was unfairly discriminated against by the company in its implementation and structure of its archaic maternity leave policy.

The result

The CCMA ordered that Alex be paid an amount equivalent to two months’ salary for the previously granted unpaid leave. In addition, Alex’s company must recognise the status of parties to a civil union and not discriminate against the rights of commissioning parents who have entered into a surrogacy agreement, in applying its maternity leave policy. The company was also ordered to pay Alex’s costs of having to bring this application.

Legislative intervention is needed in this regard in order to adequately and undeniably address the rights of commissioning parents to maternity leave. This case pertained to company policies and was addressed as such, but Alex and Ben initially sought relief for themselves and other similarly placed applicants so as to prevent unfair discrimination against them in this regard.

References:

  • [1] Act 17 of 2006
  • [2] Act 38 of 2005; Chapter 19
  • [3] Act 75 of 1997; Section 25 (hereinafter BCEA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What are parental rights and responsibilities?

The rights and responsibilities of a parent is set out in the Children’s Act 38 of 2008 (the “Children’s Act”) and can be defined as a complex set of rights, duties and responsibilities which have to be performed in the best interest of the child. These rights and responsibilities include the following elements namely: caring of the child, maintaining contact with the child, to act as a guardian over the child and to contribute to the maintenance of the child.

Both parents of a child have equal rights and responsibilities, but when they are not living together, specific rights and responsibilities may be given to one parent, either by court order or agreement between the parents.

Biological mothers

The biological mother, whether she is married or not, has full parental responsibilities and rights in respect of her child. She attains those rights solely on the fact that she has given birth to the child.

 Married biological fathers

 The biological father has full parental responsibilities and rights in respect of the child if:

    1. he was married to the child’s mother at the time of the child’s conception and birth;
    2. he is married to the child’s mother; or
    3. they are or were married at any time after the birth.

 Unmarried biological fathers

Despite the increased recognition of the beneficial role that fathers can play in the lives of their children, the Children’s Act still does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers. According to the Act, an unmarried biological father will have automatic parental rights and responsibilities only if:

    1. at the time of the child’s birth, he was living in a life partnership with the mother, i.e. they were living in a de facto husband and wife relationship and chose not to get married;
    2. regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law; and
    3. he contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance.

If there is a dispute between the biological parents over any of the above criteria, then the question of whether the father has parental responsibilities and rights must be referred for mediation to a family advocate, social worker or other suitably qualified person. Mediation is the process whereby the participants, together with the assistance of a neutral party, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When an abused child needs help

There are instances when a child may need help or protection. An abused or neglected child, for example, might need intervention with the state’s help. Fortunately, the Children’s Act, 2005 (Act 38 of 2005) gives effect to the rights of children contained in our constitution. These rights are carried out by the Children’s Court, which is expressly concerned with the care and safety of children (under 18).

The Children’s Act differs from previous legislation about children and covers other aspects relating to their rights. For instance, the Act gives effect to The Hague Convention on International Child Abduction and of Inter-Country Adoption. It also makes new provisions for the adoption of children.

What is The Children’s Act?

The Children’s Act deals specifically with matters regarding children’s care and protection and should not be confused with The Child Justice Act, 2008, which deals with children who are accused of committing an offence. The Children’s Court plays an important role in the practise of the Children’s Act.

The Children’s Court deals with all matters relating to the physical and emotional wellbeing of a child. Some of these include:

1. the protection and well-being of a child
2. the care of, or contact with a child
3. support of a child
4. prevention or early intervention services
5. maltreatment, abuse, neglect, degradation or exploitation

Children’s Courts have the responsibility to make decisions about abandoned or neglected children and also take care of children needing protection or care. The Children’s Court won’t make judgements in criminal cases involving children, however, a social worker may remove a child from their guardians or parents if it’s in the child’s best interest. To find a Children’s Court is not very hard as every Magistrate’s Court in South Africa is also a Children’s Court. The magistrate also acts as the presiding officer of the Court.

The Act and parental rights and responsibilities

The Children’s Act not only deals with children but also parents and guardians concerning their rights and responsibilities. Some of the parental rights and responsibilities includes caring for the child, maintaining contact with the child, acting as the child’s guardian and contributing to the maintenance of the child.

Going to the Children’s Court

There are some people who have a social responsibility and requirement to go to a Children’s Court if they suspect a case of child abuse. These people include teachers, social workers, lawyers, ministers of religion and nurses. On the other hand, any person may go to the Children’s Court clerk if they are concerned about a child’s safety and protection. You do not have to be the parent or guardian of the child to raise an issue with the clerk. A child also has the right to go to the Court with a matter as long as it’s within the jurisdiction of that particular Court.

The Court has a friendly and relaxed atmosphere, which is designed to make it as comfortable as possible for children. When the court makes a decision on what to do with a child it uses the guidance of a report from a social worker. The report highlights the best interests of the child. The Court will take into consideration the social worker’s suggestions. The Court order is not permanent and will usually lapse after a two-year period.

Reference list:

  • Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.
  • Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, The Children’s Act, 2005 (Act 38 of 2005). [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 19/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When an abused child needs help

A4_bThere are instances when a child may need help or protection. An abused or neglected child, for example, might need intervention with the state’s help.  Fortunately, the Children’s Act, 2005 (Act 38 of 2005) gives effect to the rights of children contained in our constitution. These rights are carried out by the Children’s Court, which is expressly concerned with the care and safety of children (under 18).

The Children’s Act differs from previous legislation about children and covers other aspects relating to their rights. For instance, the Act gives effect to The Hague Convention on International Child Abduction and of Inter-Country Adoption. It also makes new provisions for the adoption of children.

What is The Children’s Act?

The Children’s Act deals specifically with matters regarding children’s care and protection and should not be confused with The Child Justice Act, 2008, which deals with children who are accused of committing an offence. The Children’s Court plays an important role in the practise of the Children’s Act.

The Children’s Court deals with all matters relating to the physical and emotional wellbeing of a child. Some of these include:

  • the protection and well-being of a child
  • the care of, or contact with a child
  • support of a child
  • prevention or early intervention services
  • maltreatment, abuse, neglect, degradation or exploitation

Children’s Courts have the responsibility to make decisions about abandoned or neglected children and also take care of children needing protection or care. The Children’s Court won’t make judgements in criminal cases involving children, however, a social worker may remove a child from their guardians or parents if it’s in the child’s best interest. To find a Children’s Court is not very hard as every Magistrate’s Court in South Africa is also a Children’s Court. The magistrate also acts as the presiding officer of the Court.

The Act and parental rights and responsibilities

The Children’s Act not only deals with children but also parents and guardians concerning their rights and responsibilities.  Some of the parental rights and responsibilities includes caring for the child, maintaining contact with the child, acting as the child’s guardian and contributing to the maintenance of the child.

Going to the Children’s Court

There are some people who have a social responsibility and requirement to go to a Children’s Court if they suspect a case of child abuse. These people include teachers, social workers, lawyers, ministers of religion and nurses. On the other hand, any person may go to the Children’s Court clerk if they are concerned about a child’s safety and protection. You do not have to be the parent or guardian of the child to raise an issue with the clerk. A child also has the right to go to the Court with a matter as long as it’s within the jurisdiction of that particular Court.

The Court has a friendly and relaxed atmosphere, which is designed to make it as comfortable as possible for children. When the court makes a decision on what to do with a child it uses the guidance of a report from a social worker. The report highlights the best interests of the child. The Court will take into consideration the social worker’s suggestions. The Court order is not permanent and will usually lapse after a two-year period.

Reference:

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, The Children’s Act, 2005 (Act 38 of 2005). [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 19/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)