The Children’s Act 38 0f 2005 seeks to protect children in South Africa and details, among other things, the parental responsibilities and rights that rest with each parent, namely: care, contact, guardianship and maintenance. In terms of section 28 of the Children's Act, the parental responsibilities and rights of parents can be challenged if it is believed that this is in the best interest of the minor child. The court has the power to grant an order that suspends, terminates or restricts a person’s parental responsibilities and rights if it finds that there is sufficient cause to do so.

Who can file an application?

Section 28 of the Children's Act states that an application can be brought by a co-holder of parental responsibilities and rights, usually a parent or guardian, or by any person that has a vested interest in the well-being of the child, typically a family member or close family friend. An application can also be filed by the child if they have obtained prior approval from the court, a family advocate, or a representative of the state that has an interest in the child.

When can you file an application?

Above all, the courts aim to act in the best interest of the child during these proceedings. The court also considers the relationship between the child and the person whose responsibilities and rights are being contested and the overall level of commitment that person has shown to the child. Abuse of the child or substance abuse is some of the most common issues that lead to the termination of parental responsibilities and rights as these can be seen as a threat to the child’s well-being. 

The court will evaluate each case based on its own merits when deciding whether or not the person who is filing the application has cause to do so. It could be that one parent is feuding with the other and lodges an application out of spite, even though the defendant has made an effort to support and interact with the child. The court will not entertain such applications as it should be clear from the evidence provided that the defendant has shown an adequate level of commitment. 

The Children's Act seeks to facilitate a good relationship between parents and children and will not approve an application under Section 28 of the Children's Act without sufficient evidence being presented.

Sole Guardianship

When a court grants sole guardianship to one parent, they alone are responsible for making decisions regarding the child’s life. The sole guardian no longer requires any consent from the other parent to make important decisions regarding the child. Sole guardianship should not be confused with the termination of parental responsibilities and rights as these are different concepts. 

When a person obtains sole guardianship it does not end a parent’s right to contact, nor will they forfeit their responsibility towards maintenance and care of the child. When a person’s responsibilities and rights are suspended or terminated, they do in fact lose the right to have contact with the child and are not able to play an active role in their lives. 

At Cawood Attorneys, we understand that drawn-out legal procedures can take a toll on anyone. Book a consultation with one of our qualified attorneys if you are in need of legal assistance. We are dedicated to finding timely solutions to complex problems and will be with you every step of the way to lighten the load during trying times.

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