What is guardianship?

Section 18 of the Children’s Act, Act 38 of 2005 (“the Act”) regulates guardianship over children. In terms of Section 18(3) of the Act, a guardian must safeguard the child’s property and assist the child in any legal, administrative or contractual matters. A person can apply for guardianship if he/she wants to acquire legal rights over a child. If you possess guardianship over a specific minor child, you have the right to participate in important decisions pertaining to the child. 

Any person, who has an interest in the development, care and well-being of a child, may apply to a court to be granted the right of legal guardianship over a child. In the event of such an application the Court will take inter alia the following into consideration:

• The best interest of the child;
• The relationship between the child and the applicant;
• The degree to which the applicant has played a role in contributing towards the maintenance and care of the child;
• Any other relevant factor.

The other legal question we are often confronted with is what if one parent wants to obtain sole guardianship over their minor child? 

Only the High Court has the jurisdiction to make an order stating that one party who had guardianship over a minor child, no longer has such a right. For such an application to be successful, the Office of the family Advocate has to do an investigation to determine what would be in the child’s best interest. Thereafter they will provide us with a report which we will attach to our application. For assistance and clarity on this subject e-mail us at isabel@barnardinc.co.za.

Article by

ISABEL VAN DEN ENDE