Unfit parent – Losing parental responsibilities and rights

December 1st, 2013
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By Vishal Ramruch

The Children’s Act 38 of 2005 (the Act) brings about numerous additions and details in matters relating to children and family life. This article deals with a matter finalised at the Newcastle Justice Centre and is based on s 28 of the Children’s Act, which deals with the termination of parental responsibilities and rights.

The applicant in C v L (Children’s Court) (unreported case no 14/1/4-54/10, 10-2-2012) had a three-year-old son with the respondent. The parties were unmarried but they had had a relationship for two years. They separated when the applicant fell pregnant.

The circumstances that led to their separation were as follows:

  • The applicant discovered that the respondent was engaged to be married to someone else.
  • On hearing of the applicant’s pregnancy, the respondent was unhappy and pressurised the applicant to have an abortion.
  • Seeing that no abortion was forthcoming, the respondent became abusive towards the applicant, both physically and emotionally.

After the birth of the child, the respondent visited the child whenever he wanted to and attempted to initiate a relationship with him. Gradually, the respondent started to visit on an ad hoc basis and at odd times, which became of concern to the applicant. She decided to approach the Office of the Family Advocate with a view of devising a parenting plan. The respondent did not keep to the plan, nor did he contribute financially towards maintaining the child.

The applicant wanted the respondent to play an active role in the child’s life, but she was unsure whether it would indeed be in the child’s best interest in view of the respondent’s behaviour and lack of commitment to the child. The applicant was advised of the provisions of s 28 of the Act, which provides for the termination of parental responsibilities and rights under certain circumstances.

Applicable law

Section 28 of the Act, states the following:

‘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.’

Locus standi

Section 28(3) of the Act stipulates who can bring the application to court. Since the applicant in this matter is the biological mother of the child, locus standi could easily be established.

Jurisdiction

As stated above, s 28(1) provides that a person referred to in subs (3) may apply to the High Court, a divorce court in a divorce matter or a children’s court for an order. This was certainly the main concern in the matter. The High Court has always been considered to be the ‘upper guardian of minor children’ and to envisage that another court, albeit lower, could entertain such an application was something new.

There was and is no case law dealing with the application of s 28 and jurisdiction. A related case is that of Ex Parte Sibisi 2011 (1) SA 192 (KZP), but this case deals with the issue of assignment of guardianship and not termination of parental responsibilities and rights. In the judgment, it was stated that only the High Court has jurisdiction in assignment of guardianship, not the children’s court. The court stated that ‘[i]t is immediately apparent that the relief envisaged in ss 22(4)(b), 23(1) and 28 may be obtained from the High Court, the divorce court or the children’s court. None of these sections deal with the subject of guardianship’ (at para 9).

Jurisdiction in the children’s court is confirmed by s 29(1), which states that a children’s court does have jurisdiction to hear a matter in terms of s 28, within whose area of jurisdiction the child concerned is ordinarily resident.

Procedure

Section 52(1) of the Act states that the provisions of the Magistrate’s Courts Act 32 of 1944 applies. Therefore, an application by way of a notice of motion with a supporting affidavit by the applicant, detailing the merits of the matter and supporting annexures were used. This was served on the respondent via the sheriff and on the Office of the Family Advocate as its intervention could be required by the court at some stage in the proceedings.

Merits

Section 28(4) contains the factors that a court will consider in deciding whether or not to grant the application. In applying these factors to the case at hand, it was argued that:

  • The relationship that existed was one between father and son, but the argument was what ‘real relationship’ the respondent had with the child?
  • The degree of commitment to the child from the respondent was the bare minimum since:

˗        He did not financially support the child in any way.

˗        He did not spend any time with the child and visited whenever it pleased him.

˗        His role as a father figure was virtually absent.

˗        He never defended the matter, despite being offered assistance by Legal Aid South Africa, which confirmed the applicant’s version of the facts.

  • The parties have time and again sought outside assistance – ranging from child welfare; crisis centres; attempting supervised contact and having an interim agreement with a family advocate that was later made an order of court – all of which were futile because of the respondent’s lack of interest in the child.
  • The court had to also consider the respondent’s violent behaviour and the protection order against him.

The best interests of the child

The applicant alleged that it would be in the best interest of the child to have his biological father removed from his life for the following reasons:

  • Lack of any financial support – the mother fully supports the child.
  • Lack of emotional support – the respondent did not spend time with the child and did not show any love and affection towards the child.
  • Unstable life – the bond established with the minor child was subject to the will and suitability of the respondent.
  • No routine in the child’s life – the respondent did not adhere to the contact arrangements that were set by the family advocate and were made an order of court.
  • Abandonment – the respondent’s actions were tantamount to abandonment of the child.
  • Violence – the respondent was a violent person and was placed on a supervised visitation routine.

An application in terms of s 28 is a drastic measure and should not be brought frivolously or maliciously by any party. This is the reason why a court will be slow in granting such an application, as it may be abused.

Nonetheless, in the matter of V v V 1998 (4) SA 169 (C), the court stated that ‘[t]he child’s rights are paramount and need to be protected, and situations may well arise where the best interests of the child require that action is taken for the benefit of the child, which effectively cuts across the parents’ rights’ (at 189 B–C).

Constitutionality

Section 28 of the Act raises a constitutional issue: Is it constitutionally correct to terminate a biological father’s (or mother’s) responsibilities and rights towards his (her) child? Perhaps it is not, perhaps it is, but in certain circumstances. Note how the legislature termed parental ‘responsibilities’ and then ‘rights’ as it would seem that emphasis is placed on the parent’s responsibilities to the child, rather than rights towards the child.

In Fraser v Children’s Court, Pretoria North, and Others 1997 (2) SA 261 (CC), the Constitutional Court held that discrimination against fathers in non-Christian marriages are no longer permitted.

Court’s findings

The court upheld the validity and correctness of the application, such as procedure and jurisdiction. The court ordered that a new family advocate’s report be devised, giving the respondent further visitation rights. The new report was made an order of court and a provisional date was given to assess compliance.

However, the respondent failed to honour the court order by not keeping to the contact arrangements and agreement. He further failed to attend his review meeting with the family advocate on a later date. The family advocate eventually recommended to the court that the respondent’s parental responsibilities and rights be terminated.

The respondent did not attend court thereafter. The court granted the application and the respondent’s parental responsibilities and rights were terminated.

Conclusion

An application of this nature must be bona fide and must place the interest of the child before any other interest. Section 28 of the Act indeed creates controversy, as highlighted under the headings ‘constitutionality’ and ‘jurisdiction’. Had the matter been taken to a higher court, it may have very well made some finding or obiter regarding these two aspects.

Vishal Ramruch LLB (UKZN) is an attorney at Legal Aid South Africa in Newcastle.

This article was first published in De Rebus in 2013 (Dec) DR 24.