Doctoral Degrees (Private Law)

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Browsing Doctoral Degrees (Private Law) by Subject "Abdicating"

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    Invloed van die begrip kinderregte op die privaatregtelike ouer-kind verhouding in die Suid-Afrikaanse reg
    (Stellenbosch : University of Stellenbosch, 1998-12) Human, Cornelia Sophia; De Waal, M. J.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The thesis investigates the effect of the recognition of the rights of the child on the parent-child relationship in private law. Rights of the child seem, on the face of it, to undermine parental authority and family values. The impression is created that the state is abdicating its role as protector of the child in favour of unfettered freedom of the child. The delicate balance between individual freedom and family autonomy may in the result also be under threat. It was, therefore, necessary to extend the investigation to include the role of parents and that of the state. The study is divided into three parts. The first contains a theoretical analysis of the concept rights of the child. It is clear that the concept is a manifestation of fundamental human rights. The rights of the child are unique in nature and accommodate the changing phases of dependence and developing abilities of the child. Theoretical analysis negates the perception that the recognition of the rights of the child contributes to erosion of the family: the importance of the commitment of parents and of the state is apparent. The second part consists of a comprehensive review of the parent-child relationship in the South African private law, and an analysis of the public law dimension of the concept rights of the child. This part of the investigation demonstrates that parental authority is firmly rooted in legal history and that substantive private law does not recognise the child as bearer of rights within the context of the family. However, the Bill of Rights and the 1989 United Nations Convention on the Rights of the Child unequivocally give public law status to the child as bearer of rights. The study shows that the private and public law status of a child cannot be isolated from one another and that adaptations will have to be made to implement the rights of the child. In the third part of the study an attempt is made to identify the kind of adaptation that must be made. The impact of the idea of the rights of the child upon the parent-child relationship in private law is investigated. Australian and Scottish law are examples of legal systems which endeavour to implement fully the concept of the rights of the child. Indigenous law places a high value on human dignity. The interaction between rights and duties in indigenous systems reflect values which are inherent in the idea of the rights of the child. The study shows that the impact of the rights of the child on the parent-child relationship is such that change and adaptation of private law is necessary. Change and adaptation are required at both theoretical and practical level. A number of obstacles which may inhibit the process of change are identified. Finally, the kind of change and adaptation required is illustrated by a number of practical examples of the impact ofchange on the parent-child relationship.