In many cases (especially if the parents are married or living together) both parents of a child will have equal rights and responsibilities towards their child. In terms of the Children’s Act 38 of 2005, these rights and responsibilities include the following;

1. Caring for the child
2. Having and keeping contact with the child
3. To act as guardian of the child
4. To contribute to the maintenance of the child.

In practice, when parents get divorced or separate, a parenting plan is concluded (either by agreement or with the help of a social worker or mediator) which sets out how they will exercise their parental rights and responsibilities in respect of the child post-separation. Once the parenting plan becomes an order of court both parties are legally bound to it. Failure to comply with the provisions of the parenting will amount to contempt of court and may even lead to criminal prosecution.

In an ideal world, the carefully considered parenting plan would be concluded by both parents who would be exercising their parental rights and responsibilities in respect of their precious angels as agreed. Not always, unfortunately. What is a parent to do if they notice that their child being neglected or ill-treated? What about when a parent fails to show up, ever? This article aims to explore the extraordinary step of applying for the termination of parental rights and responsibilities where it has become evident that a parent is not adequately caring for their child. 

Section 28 of the Children’s Act 38 of 2005, makes provision for the termination, extension, suspension or restriction of parental responsibilities and rights. 

In terms of the Children’s Act, the following persons may launch a section 28 application;

1. One of the parents (I.e a co-holder of parental responsibilities and rights in respect of the child)
2. A person with sufficient interest in the protection, wellbeing and development of the child (Yes, this would certainly include grandparents)
3. The child him/herself, (only if special permission has been granted by the court)
4. A person acting in the child’s interest, with special permission from the court
5. A Family Advocate or the representative of any interested state organ

The High Court has always been considered to be the ‘upper guardian of minor children’ and section 28 of the act allows for an application to be brought in the High Court to request the Court to grant an order either terminating or suspending the parental responsibilities and rights of the neglecting parent. 

A section 28 application is a drastic measure which will have far-reaching consequences. Courts have traditionally been very cautious in granting such an application to deter malicious applicants. That being said, in the matter of V v V 1998 (4) SA 169 (C), the court stated that ‘[t]he child’s rights are paramount and need to be protected, and situations may well arise where the best interests of the child require that action is taken for the benefit of the child, which effectively cuts across the parents’ rights’ (at 189 B–C).

A parent’s responsibilities and rights regarding their child can either be partially or completely taken away in terms of a section 28 application. What this means is that, in certain circumstances, the Court could order that one parent may no longer have the right to exercise contact with their child OR, in some cases will no longer have the obligation to maintain the child.

Factors that the court will consider before granting an application;

1. The best interests of the child (This is paramount)
2. The relationship between the child and the person whose parental responsibilities and rights are being challenged
3. The degree of commitment that the person has shown towards the child
4. Any other fact that should in the opinion of the court be taken into account.

Feel free to contact our offices to schedule a consultation should you have any questions regarding the termination of parental responsibilities and rights.