30 May 2022

Termination of parental rights and responsibilities

Submitted by SchoemanLaw Inc

By Robyn Shepherd

In many instances, both parents of a child have equal rights and responsibilities towards the child. Parental rights and responsibilities are set out in the Children’s Act 38 of 2005, they include the responsibility to care for the child, maintain contact with the child, to act as the child’s guardian and contribute to the maintenance of the child.

However, circumstances may change, offering a risk of neglect to the child’s best interests. Section 28 of the Children’s Act sets out the termination, extension, suspension or restriction of parental responsibilities and rights. An Application by way of a Notice of Motion and affidavit to either the Divorce Court, Children's Court or High Court in terms of Section 28 of the Children’s Act is a valuable tool to avoid any future harm befalling the child.

The following parties can make the above Application; co-holders of parental rights and responsibilities, anyone with sufficient interest in the care, protection, well- being or development of the child, the child, acting with leave of the court, anyone acting in the best interest of the child acting with leave of the court and a family advocate.

When making an Application, the court considers the child's best interest, the relationship between the child and the parent whose rights and responsibilities are being challenged, the degree of commitment the parent has shown towards the child, and any other factors the court deems fit.

The following orders may be made in respect of parental rights:

  • Suspending a parent’s rights for a period of time;
  • Terminating any or all responsibilities and rights;
  • Extending any parental rights and responsibilities;
  • Limiting any and all parental rights and responsibilities;
  • Structuring and circumscribing the exercise by a person of any or all of the rights and responsibilities in respect of the child.

Once parental rights and responsibilities are terminated, the effect is that the parent no longer has any obligations to care for the child nor has any right to exercise contact with the child.

Robyn Shepherd

Family Law Specialist Attorney

SchoemanLaw Inc - www.schoemanlaw.co.za

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