Once a court order granting a person parental rights and responsibilities in respect of a child has been made, many people believe that such a person can never lose those rights and responsibilities. While a person may have limited or full parental rights and responsibilities in respect of a child, the extent of such rights and responsibilities may be changed provided it is in the best interest of the child. 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 rights and responsibilities of a person.
Over time, the circumstances surrounding a child can change and may result in many of the child’s interests being neglected or improperly catered for. Sometimes the circumstances surrounding a child have materially changed to such an extent that a person’s entitlement or ability to properly give effect to their parental rights and responsibilities, in a manner that is in the best interests of the child, are questionable. To avoid any potential harm from befalling a child, an application in terms of Section 28 should be launched.
It is important to note that while the abuse of a child is undoubtebly a ground on which to launch an application in terms of Section 28, the person bringing the application should simultaneously bring an application in terms of Section 150 of the Children’s Act to have an investigation conducted into whether a child is need of care and protection, and in some cases, removed to a place of safety if necessary.
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:
- Suspend a person rights for a period;
- Terminate any or all of a persons’ parental rights and responsibilities;
- Extending any or all of a persons’ parental rights and responsibilities;
- Limiting any or all of a person’s parental rights and responsibilities;
- Structuring and circumscribing the exercise by a person of any or all of the parental responsibilities and rights that person has in respect of a child.
A Section 28 application 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; or
- the representative of any interested organ of state.
It is also important to note that where a Section 28 application is launched by a person who has no parental rights and responsibilities, that person can also launch an application in terms of Section 23 to have rights of contact and care granted to them.
When considering an application in terms of Section 28 the court 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.
As every decision affecting a child must be made in the best interests of such a child, it follows that the people having the rights and responsibilities in respect of that child must exercise them in a manner that is in the child’s best interests. If they do not, the law clearly provides for a mechanism to prevent any potential harm or neglect to the child’s best interests, among other things in the form of a Section 28 application to have a persons’ parental rights and responsibilities terminated, suspended, extended or limited.