BILL WATCH 44/2021
[30th June 2021]
The Guardianship of Minors Amendment Bill
The Guardianship of Minors Amendment Bill was published in the Gazette on the 21st May and has not yet been presented in Parliament. It can be accessed on the Veritas website [link].
The Bill is a short one but it deals with an important and complex subject. Unfortunately, as we shall show in this bulletin, it has not been very carefully thought out. In order to explain why we say this, we need to explain first what guardianship and custody are.
Meaning of Custody and Guardianship
Parents are guardians of their minor children, which means they are responsible for caring for the children and ensuring their welfare. As guardians they have custody of their minor children – we shall explain this below – as well as the right to control their education and manage their property.
Both parents share the rights and responsibilities of guardianship but under the common law the father’s views prevailed over the mother’s in case of disagreement. This reflected the patriarchal society in which the common law developed.
As we have said, custody of minor children is one of the responsibilities of parents that arise out of their guardianship. It entails the right and duty to house one’s children, to provide and care for them and to control and supervise their daily life. Because custody is one of the aspects of guardianship, the common law rule that the father’s views prevail applied also to decisions on custody: the father’s decisions on matters of custody prevailed over the mother’s.
Effect of Guardianship of Minors Act on Guardianship
The Guardianship of Minors Act altered the common law of guardianship and custody in the following ways:
- Before exercising his rights of guardianship a father must consult the child’s mother, and if the mother disagrees with the father’s decision she can apply to a judge of the High Court who can alter or rescind the decision [section 3 of the Act].
- If parents divorce or are judicially separated or are living apart, the High Court can award sole guardianship or sole custody of minor children to one of the parents, and in that event the parent in whose favour the order is made can exercise guardianship or custody over the children to the exclusion of the other parent [section 4 of the Act]. In practice, when the court awards sole custody to a parent it usually grants the other parent rights of access to the children.
- When parents of minor children separate, the mother has sole custody of the children until the court orders otherwise [section 5(1) of the Act]. The father cannot insist on keeping the children or taking them with him.
It will be noted that the Act did not abolish the common-law rule that the father is the dominant parent whose decisions on custody and guardianship prevail over the mother’s. It modified the rule so as to give the High Court a deciding role in the event of a dispute between the parents (but only if the mother applied to the court) and to give the mother custody of her children in the event of separation, until the court orders differently. But under the Act the father was still the dominant parent.
This remained the position until 2013, when the Constitution changed it.
Effect of the Constitution on Guardianship and Custody
The Constitution has many provisions enhancing the rights and status of women, and section 80(2) is one of them. It states:
“Women have the same rights as men regarding the custody and guardianship of children, but an Act of Parliament may regulate how those rights are to be exercised.”
The Constitution has therefore abolished the common-law rule that the father was dominant, and the Guardianship of Minors Act must be amended to reflect this.
The Guardianship of Minors Amendment Bill
It seems that the object of the Bill is to bring the Act into line with section 80(2) of the Constitution. We say “it seems” because the Bill does not have the usual memorandum explaining its objectives and the effect of its provisions – which is a pity because some of the Bill’s provisions are not entirely clear.
Clause 2 of the Bill (definitions)
This clause will insert definitions of “custody” and “guardianship” into the Act. Neither definition is satisfactory.
The definition of “custody” says, in summary, that custody can be either legal custody (where the parents are or have been married to each other) or actual custody (where the parents are not married to each other). That is not very informative, and doesn’t explain what custody actually is and what rights or responsibilities a custodian parent has.
The definition of “guardianship” is more explanatory but defines the term as “a legal right allowing either parent to manage the minor’s affairs”. This misses the point because, as we indicated earlier, guardianship is not so much a right as a position of responsibility which imposes duties on parents to care for their children. It is the children who have the rights, not their parents, a point that is emphasised in section 81 of the Constitution, which states that:
“Every child … has the right to family or parental care…”
“A child’s best interests are paramount in every matter concerning the child”.
Another difficulty with the definition is that it says guardianship is a right allowing “either parent” to manage their children’s affairs – which raises the question: which parent can exercise the right? In fact of course guardianship is a responsibility imposed on both parents.
A further difficulty is that the definition does not cover all the types of guardianship that can exist – for example, testamentary guardianship, which arises when a parent bequeaths his or her guardianship rights to a person nominated in his or her will.
Clause 3 (Joint guardianship and custody)
As we noted earlier, section 3 of the Act at present states that fathers must generally exercise their guardianship powers in consultation with the mothers, but if there is disagreement between the parents the mother can approach the High Court to settle the disagreement.
Clause 3 of the Bill will replace this with a new section which:
- Will restate the rule that parents must exercise their guardianship in consultation with each other, but will confine the rule to parents who are living together.
- Will provide that when parents are living apart, the custodial parent will exercise all guardianship rights in respect of the children unless a court order – including a maintenance order – requires the parents to consult each other.
- Will provide that “in connection with an order of maintenance of a minor”, “the court” may give orders as to how joint guardianship is to be exercised.
There are several problems with the new section:
- Parents will have to consult each other about guardianship issues only while they are living together. Once apart, the “custodial parent” will have what amounts to sole guardianship: but who is the custodial parent? Is it the parent who has been awarded custody by a court, or is it the parent who has de facto custody, whether lawful or not?
- Mothers will no longer have the right to approach the High Court to settle differences over guardianship, and the new section is silent about how such disputes are to be settled when parents are living together – one hopes not through violence.
- Maintenance courts do not normally deal with guardianship.
This clause will remove a reference in section 4 of the Act to parents consenting to the marriage of their minor children. Now that the marriage of minors has been outlawed, parents cannot give such consent. While the amendment is a necessary one, it is ineptly phrased so that, unless corrected, it will leave the section reading very oddly.
This clause will amend section 5(1) of the Act which, as we said above, gives mothers custody of their minor children in the event that parents separate, pending a court order allocating custody. The amendment will provide that if parents separate “either of the parents” will have custody pending a court order.
This is an extraordinary amendment. It does not indicate which parent is to get custody or how parents are to settle on which one is to take the children. The absence of such an indication is a recipe for fights – physical ones – over custody.
What the Bill Does Not Do
The amendments which the Bill sets out to make to the Act are problematic, to say the least, but the Bill’s problems lie also in what it does not set out to do. The Act needs to be amended in several additional respects, and not just to bring it into line with the Constitution:
Application of the Act: It is not clear whether or to what extent the Act applies to children of parents married under customary law. Sections 3 and 4 of the Act, for example, assume that it will be the High Court that issues orders relating to custody and guardianship of children on the separation or divorce of their parents. This will be the case when parents are married under the Marriage Act but not under customary law – magistrates courts have jurisdiction to deal with the guardianship and custody of children born to parents married under the Customary Marriages Act. The application of the Guardianship of Minors Act needs to be extended to such children, to give them the benefit of sections 80(2) and 81 of the Constitution.
References to marital power: Sections 4(7), 5(12) and 6(10) of the Guardianship of Minors Act permits wives to make court applications without the assistance of their husbands. These rather demeaning provisions have been unnecessary ever since the Legal Age of Majority abolished the marital power of husbands over their wives. They should be formally removed from the Act.
A Veritas Bill to Consider
Veritas has produced a more comprehensive Bill to amend the Guardianship of Minors Act, which does not have the defects of the Government’s Bill that we have noted in this bulletin. Our Model Bill is attached. We suggest, with due humility, that it might be better if the Government does not want to drastically revise their Bill that they adopt ours rather than proceed with their Bill as it is.