Understanding Section 22 Agreements
A Section 22 agreement is a formal parental responsibilities and rights agreement provided for in section 22 of the Children’s Act 38 of 2005.
It provides a legal mechanism through which a person who already holds parental responsibilities and rights in respect of a child can agree that specified responsibilities and rights may also be acquired by another qualifying person. Section 22 specifically provides for an agreement with a biological father who does not already have those rights under sections 20 or 21 or by court order, or with another person who has an interest in the care, wellbeing and development of the child.
In practical terms, a Section 22 agreement may be relevant where somebody already plays an important parental role in a child’s life but does not hold the particular parental responsibilities and rights required to give that role legal recognition.
What Are Parental Responsibilities and Rights?
The Children’s Act recognises that a person may hold either full or specific parental responsibilities and rights.
These include responsibility and the right to:
- care for the child
- maintain contact with the child
- act as guardian of the child
- contribute towards the maintenance of the child.
A person does not necessarily have to hold all of these.
A Section 22 agreement can deal with specified responsibilities and rights according to the circumstances of the child and the people involved.
When Is a Section 22 Agreement Relevant?
Section 22 allows the mother of a child, or another person who already holds parental responsibilities and rights in respect of the child, to enter into an agreement with:
the biological father, where he does not already hold parental responsibilities and rights in terms of sections 20 or 21 of the Children’s Act or through a court order; or
another person who has an interest in the care, wellbeing and development of the child.
This second category recognises that the people who play significant roles in children’s lives do not always fit neatly into a traditional family structure.
Depending on the circumstances, there may be a step-parent, grandparent, extended family member or another person who has developed a substantial caregiving relationship with the child.
A Section 22 agreement is not, however, simply a way for any interested adult to acquire parental rights. The agreement must comply with the Children’s Act, the person conferring the responsibilities and rights must already hold them, and the arrangement must ultimately be found to be in the child’s best interests.
Unmarried Fathers
An unmarried biological father does not automatically need a Section 22 agreement simply because he was not married to the child’s mother.
Section 21 of the Children’s Act provides circumstances in which an unmarried father acquires full parental responsibilities and rights automatically.
These include certain circumstances relating to his relationship with the mother, acknowledgement of paternity, contribution or attempted contribution towards the child’s upbringing and contribution towards maintenance.
The first question is therefore:
Does the father already hold parental responsibilities and rights under section 21?
If he does, a Section 22 agreement is not required in order to give him rights he already has.
Where there is a dispute about whether an unmarried father has met the requirements of section 21, the Act provides for that dispute to be referred for mediation to a Family Advocate, social worker, social service professional or other suitably qualified person.
The Office of the Family Advocate also assists with disputes about unmarried fathers’ parental responsibilities and rights.
A Person Can Only Give Rights They Already Have
This is an important limitation.
A person entering into a Section 22 agreement can only confer parental responsibilities and rights that they themselves already hold at the time the agreement is concluded.
For example, somebody who does not hold guardianship cannot use a Section 22 agreement to confer guardianship on somebody else.
The agreement should therefore clearly identify which parental responsibilities and rights are being acquired.
The Agreement Must Follow the Prescribed Form
A Section 22 agreement cannot simply be an informal letter signed between two adults.
The Children’s Act requires a parental responsibilities and rights agreement to be in the prescribed format.
The General Regulations Regarding Children require the agreement to be in writing and in a form identical to Form 4. The form provides for details relating to care, contact, financial responsibility and other matters connected with the upbringing of the child.
The agreement should therefore reflect the actual responsibilities and rights being conferred rather than simply stating that somebody is receiving “parental rights”.
Signing the Agreement Is Not Enough
This is one of the most important aspects of Section 22.
The adults cannot simply sign the agreement and assume that the parental responsibilities and rights have taken legal effect.
Under section 22(4), the agreement takes effect only once it has either been:
registered with the Family Advocate, or
made an order of the appropriate court.
Depending on the circumstances, this may be the High Court, a divorce court in a divorce matter or the Children’s Court.
The Office of the Family Advocate specifically assists people who want to draw up or register parental responsibilities and rights agreements, and its services are provided to the public free of charge.
The Best Interests of the Child
The fact that the adults agree does not automatically mean the agreement will be registered.
Before a Section 22 agreement can be registered by the Family Advocate or made an order of court, the Family Advocate or court must be satisfied that it is in the best interests of the child.
This changes the nature of the conversation.
The issue is not simply:
“What rights does this adult want?”
It is also:
“What responsibilities and rights make sense for this particular child?”
The child’s relationships, security, care, development, family circumstances and the practical effect of the proposed arrangement all matter.
The Child’s Views Matter
Children should not be given responsibility for making adult legal decisions, but neither should decisions about their lives be made as though their views do not matter.
The Children’s Act gives children who are sufficiently mature and developed the right to participate appropriately in decisions affecting them.
The regulations dealing specifically with parental responsibilities and rights agreements also provide for children’s participation. Where a child disagrees with the proposed agreement, that disagreement should be recorded and the matter referred for mediation by an appropriately qualified person.
How the child’s views are obtained should always take account of age, maturity and emotional wellbeing.
The child should be heard without being made responsible for choosing between adults.
Guardianship Requires Particular Care
Guardianship carries significant legal consequences and needs to be treated differently from some of the other parental responsibilities and rights.
Section 22(7) of the Children’s Act provides that only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement relating to guardianship.
The prescribed Form 4 similarly states that where guardianship is included, the agreement must be made an order of the High Court.
Where guardianship is being considered, obtaining independent legal advice is particularly important.
Section 22 Agreement or Parenting Plan?
A Section 22 agreement and a parenting plan perform different functions.
A Section 22 agreement is concerned primarily with who holds particular parental responsibilities and rights.
A parenting plan is generally concerned with how people who already hold parental responsibilities and rights will exercise those rights and responsibilities in practice.
A parenting plan may deal with matters such as where a child lives, contact, maintenance, schooling, holidays and the practical arrangements between households.
Sometimes both documents may be relevant.
It may first be necessary to establish who legally holds which parental responsibilities and rights and then work out how those responsibilities and rights will function in everyday family life.
What If There Is No Agreement?
Section 22 depends on an agreement being reached.
Where an interested person seeks care or contact and agreement cannot be reached, the Children’s Act also provides court processes through which an interested person may apply for care or contact.
For example, section 23 permits a person with an interest in the care, wellbeing or development of a child to apply to the appropriate court for an order granting contact or care, with the child’s best interests remaining central to the decision.
This distinction is important because mediation cannot create agreement where one party is unwilling to agree, and a Section 22 agreement is not a substitute for a court process where the legal position is genuinely disputed.
The Role of Family Mediation
Where the adults are willing and able to participate, Family Law Mediation can provide a structured way of working through the practical issues before the agreement is submitted for registration or made an order of court.
The conversation can move beyond statements such as:
“I want equal rights.”
or
“I want to be more involved.”
Those feelings may be important, but the practical questions are more specific.
What role will this person have in the child’s life?
What responsibilities will they carry?
What decisions will they participate in?
How will care and contact work?
What financial responsibilities will there be?
How will the adults communicate?
How will the arrangement affect the child’s existing relationships?
The Office of the Family Advocate itself uses mediation and other alternative dispute-resolution approaches in matters concerning parental responsibilities and rights.
My role as mediator is to help the parties identify the issues that need to be resolved, understand the implications of the different arrangements and work towards practical, child-focused terms.
I do not decide what parental responsibilities and rights somebody should receive, and mediation is not a substitute for independent legal advice.
Can a Section 22 Agreement Be Changed?
Children grow and family circumstances change.
An arrangement that works well when a child is young may need to be reconsidered later.
The Children’s Act allows a parental responsibilities and rights agreement registered with the Family Advocate to be amended or terminated through the Family Advocate, subject to the requirements in section 22.
Where the agreement has been made an order of court, the appropriate court process is required. Guardianship agreements remain subject to the particular jurisdiction of the High Court.
The Family Advocate also confirms that its office can assist with the amendment or termination of agreements registered there.
Bringing the Legal and Everyday Reality Together
A properly considered Section 22 agreement can give legal recognition and greater clarity to an important relationship in a child’s life.
But the legal document is only part of the picture.
The family still needs to understand what the agreement means in everyday life:
who will do what, how important decisions will be approached, how the adults will communicate, where boundaries lie and how the arrangement will support the child’s relationships and development as circumstances change.
This is where mediation can add value.
It creates a structured place to bring the legal position and the lived reality of the child together.
I assist families with Section 22 agreements through Family Law Mediation in Hout Bay, Cape Town, and online across South Africa.
The information on this page is general information about Section 22 parental responsibilities and rights agreements in South Africa and is not a substitute for independent legal advice.
