Today, instead of February’s usual flowers and hearts, we’re digging into the complexities of family law, maintaining a child’s wellbeing and protection and yes, severing the ties that bond a parent to a child legally. The topic of parental rights and responsibilities can be a sensitive one. Let’s unpack it.
What are parental rights and responsibilities legally?
In South Africa, the Children’s Act of 2005 serves as a legal framework for understanding parental rights and responsibilities. As detailed in a booklet by the Department of Social Development not all parents have the same rights or responsibilities. “There are mothers and fathers who are married and raising their children together. There are single mothers and single fathers. They may be single because they were never married, or they got divorced. There are people who take care of children in the place of parents, or people who take care of children for a short time. All these different families have rights and responsibilities for their children. They do not always have the same rights and responsibilities, and the Act explains the differences.”
However, there are three main types of parental rights and responsibilities:
- Care - Is about the safekeeping and protecting of the child, taking care of the daily well-being and living conditions of the child, including essential needs and everyday decisions.
- Contact - A parent's right to maintain a connection with the child, involving visitation and communication.
- Guardianship - Gives parents/guardians the authority to make significant life decisions for the child, spanning areas like education, religion, health, and overall welfare.
For a full explanation, you can read the Children’s Act here (Go to Chapter 3: Parental Responsibilities and Rights.)
Who can apply for terminating parental rights and responsibilities and why
Any holder of parental rights (mother, father, adoptive parents, guardian), a person with sufficient interest in the child (e.g. teacher, friend), or even the child, may apply to have the parental rights and responsibilities of a rights holder restricted, suspended or terminated. This needs to be applied for, and is then decided by the courts.
There are many reasons why a parent or guardian would consider termination of parental rights and responsibilities.
- Financial neglect - Parents who consistently fail to provide financial support for their children.
- Emotional neglect and abuse - Parents who continuously display emotional neglect, abuse, or expose their children to harmful situations.
- Physical neglect and abuse - Parents who fail to provide for a child's basic physical, intellectual, emotional or social needs and/or engage in physical abuse.
Termination process
The process of terminating parental rights and responsibilities can be a difficult and lengthy one that will require legal assistance. The following steps will be involved:
- Application to the court - In most cases, an application must be made to the court for the removal of parental rights and responsibilities. This application can be made by the child’s biological parent, an adoptive parent, or a guardian.
- Investigation - The court will carry out an investigation to determine whether the removal of parental rights and responsibilities is in the best interests of the child. This step may involve the appointment of a social worker to investigate the circumstances of the case.
- Hearing - If the court decides that the removal of the rights and responsibilities is necessary, a hearing will be held to consider the evidence and make a decision. Parents will be granted the opportunity to present their case in court, and the judge will then consider all relevant factors, including the best interests of the child.
- Decision - The court will then decide. If the court decides to remove the rights and responsibilities, a court order will be issued.
The termination of parental rights and responsibilities is a serious matter that should only be considered in circumstances where it is in the best interests of the child. The termination process will have consequences for both the child and the parent, and it’s important to get legal assistance to ensure that the best outcome is achieved for all parties involved. Scorpion Legal Protection has a legal department that is available 24/7 to assist members with matters such as these. Not yet a member? Click here to join.
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*This is only basic legal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.