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Article by listed attorney: Fawzia Khan

A US-based television documentary show broadcast on MTV and entitled “16 and Pregnant”, which deals obviously, with teenage pregnancy, has gained global popularity, including here in South Africa. This show looks at the life of a teenager who falls pregnant at 16 and how she has to cope with her new life and that of her baby as well as all the curved balls life throws at her. It’s been said that the show has significantly impacted in a downward spiral in the number of teenage pregnancies, both in the United States and abroad. One of the reasons for this is the sobering facts and reality checks, which the show focuses on, in raising a child when the parent is a child herself.  The TV show also debunks many myths which teenagers may harbour including what it means to be a parent as well as all the unromantic aspects of being an adult with responsibilities. One of the most obvious of which must surely be the responsibility of taking care of and raising a child.

For us in South Africa, the responsibilities and rights of a parent are clearly set out in the Children’s Act 38 of 2005. This Act looks at the responsibilities and rights of all categories of parents, from those parents who are married to each other (be it in a civil marriage, customary marriages, civil unions) all the way through to those biological parents were never in a permanent, or any such relationship with each other. Sections 19 and 21 of the Act sets out the responsibilities and rights of the biological mother and father, (who are not married to each other) respectively.

Up until the Children’s Act was enforced, the law favoured the mother as the parent who would be given the care and custody of minor children. That situation has since been drastically altered. The court is now required by law to look at what is in the best interests of the child, rather than look at favouring a mother or father as the custodial parent.

A case which came before the court recently involved unmarried biological parents, who although were not as young as sixteen years of age, were described by the presiding judge as being barely out of their teens. In this matter, a young unmarried mother, brought an urgent application for interim custody of her two-year old child to be awarded to her, pending an investigation and report by the Family Advocate. The father opposed the application on the basis that the child was best suited to remain in his care, as his mother (and the child’s paternal grandmother) was able to provide all the support needed for the minor child.

On 13 July 2016 the presiding judge made his ruling. He had this to say about the couple “During the first two years of the child’s existence, both parents were young people, attempting to find their way in life through relationships and jobs. Their relationship with each other was already at its end when their unexpected future parenthood was discovered. That did not bode well for the minor child”. The court was not convinced that it would be in the child’s best interest to have the primary residence of the child changed to that of the mother, even though this was to have been an interim arrangement. From the court’s perspective, the key consideration was to ensure that the child remain in a stable secure environment. The court therefore refused to allow the biological mother to have the child in her interim care and ordered that the family advocate to do its investigation and file their report urgently. The court allowed the mother reasonable access to the child, whilst such investigations were underway.

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