When a person has a child, the law dictates that they have to take care of, and are responsible for the child. The Children’s Act, 38 of 2005 speaks about “parental responsibilities and rights”, of which there are many. The Children’s Act explains these parental responsibilities and rights. 

To take care of their child:

  • Care means thinking about the child’s daily needs such as providing a safe home, food, education and love;

To maintain contact with the child:

  • Contact means seeing the child often enough to develop a relationship;

To be a guardian to the child:

  • Guardianship is the administrative part of taking care of a child;

To ensure that the child has financial support or maintenance:

  • This means that both parents must provide for the child’s needs and how they do this depends on how much money the parents have. 

The termination of parental rights and responsibilities in South Africa happens in extreme cases where the current guardians are unfit to take care of the child/children in their care. Section 28 of the Children’s Act, 38 of 2005, provides that an application may be made for an order to terminate, extend, suspend or restrict the parental responsibilities and rights of a person.

An application in terms of Section 28 may be launched in the High Court, a Divorce Court in a divorce matter, or in a Children’s Court for an Order which :

  • Suspends a person rights for a period;
  • Terminates any or all of a persons’ parental rights and responsibilities;
  • Extends any or all of a persons’ parental rights and responsibilities;
  • Limits any or all of a person’s parental rights and responsibilities.

Aan application in terms of Section 28 may be launched by the following persons:

  • A co-holder of parental responsibilities and rights in respect of the child;
  • Any other person having a sufficient interest in the care, protection, well-being or development of the child;
  • The child, acting with leave of the court,;
  • Any other person in the child’s interest, acting with leave of the court;
  • The office of the family advocate; and
  • The representative of any interested organ of state.

The Court when considering an application in terms of Section 28 must take the following into account:

  • 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; and
  • Any other fact that should, in the opinion of the court, be taken into account.

Every decision affecting a child must be made in the best interests of such a child. If a person having responsibilities and rights in respect of a child does not act in their best interests, the law provides a mechanism to prevent any potential harm or neglect, among other things in the form of a Section 28 application to have a persons’ parental rights and responsibilities terminated, suspended, extended or limited.

For direct answers to your specific personal questions, please contact us directly.

Read more about our child law services.

Author – Kate Bailey – Hill

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