GUARDIANSHIP OF A CHILD
Death of parents is not expected or wanted by anyone and it comes with its heavy consequences whereas the children could be left alone without a guardian, in most cases the parents have no knowledge on what they can do or who they can approach in order to secure the future of their offspring, this problem has long term traumatic consequences on the children as they are to grow up at a young and not experience their youth, another factor that is slept on upon the topic is that guardianship is not only needed when death is involved, many children are highly mistreated by their parents due to them not being fit enough to care appropriately for the child, a parent can be allocated is being dangerous to own child and custody can then me stripped and handed to a legally fit guardian .
There are options for parents in securing the children’s future before they pass away, they can select an entrusted guardian which will be verified by an specialist in the field checking if they are fit enough to care for the child and this person is appointed by the court, the process has to be legally approved and corresponding with the constitution.
As it has been mention appointment of guardianship is not just handing the child over to someone you trust and all is well, that is illegal. There are ways of doing things the appropriate way and most importantly the legal way as mention in the almighty Constitution.
The Children’s Act 38 of 2005
When appointing a guardian the child and their views on matters has to be taken to consideration. The act states that every child at an age of maturity and development are able to participate in any matter concerning himher, they have right to do so in an child appropriate way. There is not set age at which they can make own decision themselves but it is calculated by levels of maturity. The act governs the law relating to care, contact and the projection of children as well as the parenting responsibilities and rights.
The provision for the establishment of children’s counts and the appointment of welfare officers is made. They regulate the establishment of places of safety, orphanages and the right of an orphan it also sets out the laws for adoption, guardianship of the children. (www.childrens’s-act-38 of 2005.html)
According to UNICEF, a world’s children foundation there are an estimated 3.7 orphans in South Africa. About 50% has lost their parents due to aids and about a 150 000 live in child headed-households. Although this research is based on guardianship it is important to acknowledge the role played by HIV/AIDS in leaving orphaned children in South Africa. Equally so, it is also important to look at the main cause of child headed households and that it has on children and possible suggestions on how this matter can be redressed.
Guardianship means the right and duties in raising the children. A guardian is someone who will legally look after the child and all major decisions that will affect the child’s upbringing. Unfortunately this is not a fashionable manner in South Africa. Many children end up heading their households due to their parents’ death. Parents die without leaving a will to clearly state who should take care of their children in case of their death, sometimes the community or extended family members will assume this role. Foster care has been playing a huge role in these cases whereby the children are legally placed in homes or extended family.
Unfortunately child headed households do not function well as the eldest has to assume the role of being a parent meaning they are to provide for all family needs this primarily results in them missing out on their youth or falling back at school and in worst cases, dropping out of school. They have to look for a job which sadly means they will be exposed to child labour which violates and is not allowed by Section 43 of the Basic Conditions Act. The impact this matter has upon the child is quite traumatic this is only mere child who should be grieving their parents death but is forced to become a parent to their siblings. It is highly advisable that parents should draw up a will to ensure that they appoint someone like a family member or the children’s godparents to look after their children in the event of their death. For this to be enforceable, parents should have sole care and guardianship. As human beings, especially parent, we don’t want to think about death and leaving our children behind however it is imperative to make plans for your children’s future by ensuring that they have a legal guardian in the case of your passing.
Questionnaire to Government official ( Honourable Makhubela Mashele)
Q- What can government do to assist children with guardianship in case their parents pass away? A- Government helps in providing a legally qualified individual to guard the child in form of guardianship should parents die, the child is also given an opportunity to voice their views about the guardian
Q- To which extent can government intervene and be able to take away the child for guardianship? A- It is not only death that enforces the Government to do something, should a parent that mistreats their offspring be discovered, this can be contested in court, where it will be the State against the parent fighting for the custody of the child.
Q- Do you think government should provide more campaigns in educating the parents about guardianship should they need it? A- They definitely should , many people are not aware of guardianship especially in rural areas whereby this normally occurs, as well as educating parents that they can lose their children should they be deemed unfit to care for the child.
Q- In cases whereby the children are being neglected, how does government intervene? A- As mentioned before, government can also intervene in assisting the child by contesting the custody of the child from the parent as they are danger towards their own child.
Q- Where can one go and look for assistance should they discover children living alone without parents? A- When can allocate any public institution or service such as our SAPS and it will be taken into government hands and handled legally thereafter
Q- Is there a preferred age restriction whereby guardianship can be provided to the child? A- Unfortunately there is a preferred age restriction, you are no longer considered a minor as soon as you reach the age of 18 in South Africa thus meaning as the government we don’t cater for adults but only minors and in this case 17 is the cut off age.
Courts become involved in the lives of the children when their parents are unable to appropriately come for them, therefore guardianship also becomes applicable when a minor acquires needs. This means that guardians must have a legal role accompanied by long term responsibilities towards child’s protection in case of death but as we parents we need tp receive consent from those who we intend on entrusting with looking after the children as it is one major responsibility As mention before we conclusively have to come a with solution that guardianship must be described as a trust of the highest character and courts have to enforce it on parents while they are still alive that they should view it as a must to appoint a legal guardian to avoid such issues as child headed households. This requires you as a parent to nominate a guardian in a will even it might be an impossible or rather difficult task to initiate but it has to be done as it is highly important.
All in all ,allocating guardianship provides a peace of mind to parent knowing that should you pass, your kids will be well taken care of in good hands. Having them being deemed legally fit before time, will give you assurance that the court shall have nothing to say in the appointment of the child’s custody.