“Family” as a social unit is the foundation of our society. It provides security and a sense of identity for a child and is the natural environment for the growth and well-being for children. Where for some reason such a relationship is unavailable or fails, society must provide systems and resources to safeguard the welfare of the child. How we treat our children, especially those who lack adequate parental care, is ultimately a reflection and measure of our community. It is also evident that the lack of a coherent and principled approach to the placement, protection and care of children in South Africa whose birth families cannot or will not provide properly for them disadvantages these children. However, adoption cannot be viewed in isolation from the wider issue of the placement of children needing alternative care. Rather, it represents one end of a spectrum of available options.
It may become evident that a parent is either failing to adequately cater for the needs of a child or entirely neglecting to do so, to such an extent that the obligations of one parent are substantially exacerbated. This may result in one parent being unjustifiably prejudiced by the actions of the neglecting parent, with the resultant effect that the child’s best interests are not catered for.
Terminating a parent’s rights means that a person’s rights as a parent are taken away. The person is not the child’s legal parent any more which means:
• The parent child relationship no longer exists.
• The parent no longer gets to raise the child.
• The parent usually has no right to visit or talk with the child.
• The parent no longer has to pay child support.
• The parent is removed from the child’s birth certificate.
• The child can be adopted without the parent’s permission.
Terminating a parent’s rights is taken very seriously by Judges. Judges do not terminate a parent’s rights unless there is a very good reason.
Section 28 of the Children’s Act 38 of 2005, provides for the termination, extension, suspension or restriction of parental responsibilities and rights. The provision caters for an application to be brought in the High Court where the responsible parent would request the court to grant an Order either terminating or suspending the parental responsibilities and rights of the neglecting parent. The effect of an application for termination of parental responsibilities and rights will either wholly or partially deprive a person of their parental responsibilities and rights regarding a child meaning that person will no longer have any obligations to care for or maintain the child nor have any right to exercise contact with the child.
An application for termination of parental responsibilities and rights may be launched by:
• A co-holder of parental responsibilities and rights in respect of the child.
• Any other person with sufficient interest in the protection, wellbeing and development of the child.
• The child, acting with leave of the court.
• A person acting in the child’s interest, with leave of the court.
• A Family Advocate or the representative of any interested state organ.
Before granting an application, the court will take the following into consideration:
• The best interests of the child.
• The relationship between the child and the person whose parental responsibilities and rights are being challenged.
• The degree of commitment that the person has shown towards the child.
• Any other fact that should in the opinion of the court be taken into account.
It is important to note that an application for termination of a person’s parental responsibilities and rights will not be granted where it is not proven to be in the best interests of the child, as it results in a deprivation of rights of a parent or co-holder.
ADOPTION:
Before children are legally free to be adopted, their birth parents’ rights must be terminated. This can be done voluntarily or involuntarily.
VOLUNTARY TERMINATION OF PARENTAL RIGHTS (CONSENT TO ADOPTION)
When an expectant mother chooses adoption for her baby, she is voluntarily terminating her parental rights. Voluntary termination occurs when the birth parents legally consent to adoption thus relinquishing all of their parental rights and responsibilities. This type of termination of parental rights is most commonly associated with domestic infant adoptions. Mothers who choose adoption for their babies generally have the right of consent. Birth fathers often must legally establish paternity before they have the right to consent to or contest an adoption.
CAN CONSENT BE WITHDRAWN:
The answer is YES.
• A person who gave consent to the adoption has up to 60 days after the consent has been given to withdraw his/her consent.
• A Children’s Court must not allow the adoption to be finalised before the period of 60 days has expired.
What are the consequences of adoption?
• An adopted child is regarded as the biological child of the adoptive parents.
• All parental rights and responsibilities of the child’s biological parents or previous legal guardians will be terminated. However, the parental rights and responsibilities will not automatically terminate if, for example, the child is adopted by a stepfather while being married to the child’s biological parent.
• The adoptive child takes the surname of the adoptive parents (unless the Children’s Court states otherwise).
• An adoption will not affect the adoptive child’s rights to property he/she obtained before adoption.
“The way we treat our children directly impacts what they believe in themselves.”
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Author – Samantha Delmoney
