22/07/2021
From LTSA GROUP ... WELL PENNED
Dear LTSA Members
WRITING OFF A CHILD.
AFTEKEN VAN ‘N KIND.
SIGNING A KID OFF.
SIGNING YOUR PARENTAL RIGHTS AWAY.
Apart from the Rights afforded to everyone, children's rights and interests have been given independent recognition in Section 28 of the Constitution, which is tailor-made for children's needs, rights and interests.
Section 28 (Children, Constitution of the Republic of South Africa, 1996) =
28. Children
(1) Every child has the right-
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that-
(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be-
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child's age;
(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.
(2) A child's best interests are of paramount importance in every matter concerning the child.
(3) In this section "child" means a person under the age of 18 years.
NO biological parent can just "sign" away his/her rights & responsibilities in terms of his/her children.
YOU cannot force someone to relinquish his rights and if HE wishes to do so then a Court must be approached on a voluntary basis by that father/mother/parent.
The Court will not do so easily - so someone not wanting to pay maintenance or be bothered with the child, is not likely to succeed.
It is NEVER done just as a matter of convenience.
A child is ENTITLED to two parents, is ENTITLED to know both of them and is ENTITLED to be cared for and maintained. Our Courts furthermore place emphasis on the importance of the need for a child to remain in the care of and to maintain a connection with his or her parents, family and extended family, culture or tradition. A stable family environment should thus be protected wherever possible.
It should be noted that given the best interests of the child, termination of parental rights and responsibilities will only be ordered in the most exceptional of circumstances.
Where the Court agrees that it is IN THE CHILD'S BEST INTERESTS that one of the bio parents' rights be terminated, they CAN make such an Order, and then the remaining parent will have sole custody.
Best interests of the child?
Section 9 (Children’s Act): In all matters concerning the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance, must be applied.
The factors that the Court will consider in such a Section 28 Application would include: 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 factor (which may include the cultural, social and religious circumstances, interests and needs of the individual child) that should in the opinion of the Court be taken into account and considered. READ Section 7(1) of the Children's Act - it lists 14 (FOURTEEN) factors that must be taken into consideration whenever the best interests of the child are determined.
Note: What is not included in this list is the child's preferences / wishes, BUT this is catered for in Section 10 (Children’s Act): Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.
“Sole custody” in South Africa?
Can we please get something clear here - this is a matter that comes up often.
There absolutely IS such a thing as “sole custody”.
If a child has only one parent, OR if one parent's right & responsibilities have been terminated by the Court, OR if a father does not have automatic parental rights, then the one parent IS the sole custodian.
Who has / What are “parental responsibilities and rights”?
This is specifically covered in Chapter 3, Sections 18 to 41 of the Children’s Act.
If parents are uncertain about their responsibilities & rights they should specifically go read Sections 18, 19, 20 and 21.
Section 18 - Parental responsibilities and rights (General)
18(2): The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right - (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child.
Section 19 - Parental responsibilities and rights of mothers
Section 20 - Parental responsibilities and rights of married fathers
Section 21 - Parental responsibilities and rights of unmarried fathers
Please also read the following Sections:-
Section 26 – Person claiming paternity
Section 30 – Co-holders of parental responsibilities and rights
Section 31 – Major decisions involving a child
Section 33 – Contents of Parenting Plans
Section 34 – Formalities of Parenting Plans
Section 35 – Refusal of access or refusal to exercise parental responsibilities and rights
Section 36 – Presumption of paternity in respect of a child born out of wedlock
Section 40 – Rights of a child conceived by Artificial Fertilisation
Which Courts deal with termination of parental rights and responsibilities?
The Divorce Court and/or Children's Court would have jurisdiction over Section 28 Applications for termination of parental rights and responsibilities per the provisions of the Children's act.
If a child has two parents these are the ways to legally terminate one parent's rights:
1. Have the child adopted by someone else and when the adoption is finalised the bio parent’s rights will be terminated. NOTE: One never arranges adoption simply to eliminate another parent's rights.
2. Under serious circumstances the Court (and not necessarily or only the High Court!) can, on application in terms of Section 28(1) of the Children’s Act, terminate a biological parent`s rights IF it is in the best interest of the child to have said parent's rights legally terminated.
Section 28 (Termination, extension, suspension or restriction of parental responsibilities and rights, Children’s Act 38 of 2005) =
28. Termination, extension, suspension or restriction of parental responsibilities and rights-
(1) A person referred to in subsection (3) may apply to the High Court, a divorce court in a divorce matter or a children’s court for an order-
(a) suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child; or
(b) extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.
(2) An application in terms of subsection (1) may be combined with an application in terms of section 23 for the assignment of contact and care in respect of the child to the applicant in terms of that section.
(3) An application for an order referred to in subsection (1) may be brought-
(a) by a co-holder of parental responsibilities and rights in respect of the child;
(b) by any other person having a sufficient interest in the care, protection, well-being or development of the child;
(c) by the child, acting with leave of the court;
(d) in the child’s interest by any other person, acting with leave of the court; or
(e) by a family advocate or the representative of any interested organ of state.
(4) When considering such application the court must take into account-
(a) the best interests of the child;
(b) the relationship between the child and the person whose parental responsibilities and rights are being challenged;
(c) the degree of commitment that the person has shown towards the child; and
(d) any other fact that should, in the opinion of the court, be taken into account.
A very helpful read:
"Child divorce": a break from parental responsibilities and rights due to the traditional socio-cultural practices and beliefs of the parents,
http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000100006
[Sources: LTSA posts, Constitution, Children’s Act, various online legal articles / journals]
"Child divorce": a break from parental responsibilities and rights due to the traditional socio-cultural practices and beliefs of the parents
