Termination of Parental Responsibilities and Rights: Understanding Section 28 of the Children’s Act

When a parent’s ability to provide a safe and nurturing environment for a child is called into question, the law allows for the termination of parental responsibilities and rights. In South Africa, this process is regulated by Section 28 of the Children’s Act. In this blog, we will explore the key provisions of Section 28 and explain what you need to know if you are considering applying for the termination of parental responsibilities and rights.

What is Section 28 of the Children’s Act?

Section 28 of the Children’s Act deals with court-ordered limitations, suspensions, circumscriptions, or extensions of parental responsibilities and rights that a person has. The court that may make an order in this regard is the High Court, a regional court dealing with a divorce matter, and the children’s court within whose area of jurisdiction the child is ordinarily resident.

Who can apply for an order in terms of Section 28?

An application for an order in terms of Section 28 may be brought by 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, in the child’s interest by any other person acting with leave of the court, or by a family advocate or the representative of any interested organ of state.

What factors does the court consider when making an order under Section 28?

When considering an application in terms of Section 28, the court must take 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.

The Powers of the Court

The Court may terminate (ie bring to an end) or suspend (ie temporarily prevent from continuing or being in force or effect) the impugned party’s parental responsibilities and rights.

Suspending parental responsibilities and rights Section 28(1)(a) also empowers the court to suspend any or all of a person’s parental responsibilities and rights ‘for a period.’ The quoted phrase implies that a suspension order cannot operate indefinitely. If it is linked to an event, uncertainty as to the event can be resolved by way of an affidavit ‘or other means of satisfying third parties as to the position,’ or by approaching the court for clarity.

Extending or circumscribing parental responsibilities and rights Section 28(1)(b) authorizes the extension or circumscription of a person’s exercising of any or all of his or her parental responsibilities and rights. In other words, the court can either give a person who already has parental responsibilities and rights additional parental responsibilities and rights or it can delineate the parental responsibilities and rights the person has.

Combining an application with Section 23

Section 28(2) authorizes combining an application in terms of Section 28(1) and an application for the assignment of contact and care in terms of Section 23. Thus, for example, the applicant could ask the court to suspend particular elements of a person’s parental responsibilities and rights and to assign contact and care to the applicant.

The Best Interests of the Child

When considering an application for the termination of parental responsibilities and rights, the court is required to focus on the best interests of the child. The best interests of the child standard is a fundamental principle of South African law, enshrined in Section 28(2) of the Constitution of the Republic of South Africa, 1996, and the Children’s Act.

In determining the best interests of the child, the court will consider a range of factors (all set out in Section 7 of the Children’s Act), including:

• The child’s age, maturity, and stage of development;
• The child’s physical, emotional, and educational needs;
• The child’s cultural, religious, and linguistic background;
• The child’s relationship with his or her parents, siblings, and other significant persons in his or her life;
• The child’s safety, including protection from harm, abuse, neglect, and family violence;
• The child’s stability and security, including the continuity of care, and the avoidance of unnecessary disruptions in the child’s life;
• The child’s wishes, taking into account his or her age and maturity, and the extent to which he or she is capable of understanding the implications of the decision.

The best interests of the child standard is intended to be applied on a case-by-case basis. It requires a holistic and child-centered approach, which takes into account all the relevant circumstances of the case. The focus is not primarily on the parents’ interests but rather on the child’s interests, which are often more complex and multi-faceted.

At Vermeulen Attorneys we understand the importance of the best interests of the child in matters relating to the termination of parental responsibilities and rights. Our experienced attorneys can provide you with the legal guidance and support you need to ensure that your child’s best interests are protected. Contact us today for a consultation and let us help you through this difficult process.