- Section 28 of the Children’s Act 38 0f 2005 (hereinafter the “Act”) empowers the Court to suspend any and / or all parental responsibilities and rights for a certain period of time or completely in respect of an ‘uncaring’ parent.
- Who can bring an application to have parental responsibilities and rights terminated?
In terms of Section 28 (3) of the Act the following people can bring the application to have parental responsibilities and rights terminated.
- Co – holders of parental responsibilities and rights in respect of the child;
- Anyone who has sufficient interest in the well-being of the child;
- The child, acting with the leave of the Court;
- Anyone acting in the best interest of the child, acting with the leave of the Court;
- A family advocate or a representative of an interested organ of state.
- Factors to consider when dealing the above – mentioned application (the factors are outlined in Section 28(4) (a) –(d) of the Act).
- The child’s best interest, as they are of paramount importance, [see V v V 1998(4) SA169 (C)];
- The relationship between the child and the person whose parental responsibilities and rights are being challenged;
- The degree of commitment the person has shown towards the child;
- Any other relevant factor.
- According to Section 28(1) of the Act, the person stated in Section 28(3) may approach one of the following Courts in order to launch the Application.
- High Court;
- Divorce Court and/ or;
- The Children’s Court for relief sought.
- The case that dealt with Section 28 of the Act:
C v L (Children’s Court, unreported case no: 14/1/4 – 54/10, 10 – 02 2012).
Facts of the case:
The Applicant had a three (3) year old son with the Respondent. The parties were never married but had a romantic relationship for a period of two years. They separated when the Applicant fell pregnant due to the following:
The Applicant discovered that the Respondent was engaged to be married to someone else;
The Respondent was unhappy upon hearing about the Applicant’s pregnancy and he pressurized the Applicant to have an abortion;
Upon realizing that no abortion was coming forth, the Respondent became physically and emotionally abusive towards the Applicant.
After the birth of the child, the Respondent would visit the child whenever he wanted and he attempted to initiate a relationship with the child. The Respondent started visiting the child at odd times and the Applicant approached the office of the Family Advocate in hope of devising a parenting plan. The Respondent did not uphold the parenting plan, and he was not contributing financially towards the child’s needs. The Applicant then approached the Children’s Court for an Application to have the Respondent’s parental responsibilities and rights terminated.
The Court considered the factors in Section 28(4) and held that:
- There was a relationship existence between the Respondent and the child, but the relationship was not a real one.
- There was minimum commitment by the Respondent towards the child, because:
- He did not financially support the child;
- He only visited the child whenever he wanted, which led to him not spending enough time with the child;
- His role as a father figure was literally absent;
- He failed to defend the matter despite being offered Legal Aid assistance;
- The parties sought outside assistance (approaching the office of the Family Advocate for the parenting plan) but such was not successful due to the Respondent’s lack of interest in the child.
- The Court also considered the protection order which was granted due to the Respondent’s violent behavior towards the Applicant.
The Court then held that a new family advocate’s report must be devised, giving the Respondent further visitation rights, this was made an order of Court and a new date was given to access compliance. The Respondent failed to comply with the Court Order by not keeping to the arranged contact.
Further, the Respondent did not attend Court on the given date and the Court granted an Order terminating his parental responsibilities and rights.
An application of this nature is drastic and should not be brought maliciously by any party, it must be an application make in good faith for the best interest of the child. Due to the reasons stated above, the Courts are slow in granting such applications as the Constitutionality of terminating a biological parent’s responsibilities and rights remains questionable.