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Family and Divorce law in South Africa - A Comprehensive Guide
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Section 28 of the Children's act.

Exploring Section 28 of the Children's Act: Ensuring the Rights and Welfare of Children in South Africa

​Understanding Section 28 of South Africa's Children's Act: A Comprehensive Guide

The well-being and protection of children are paramount in any society. In South Africa, the Children's Act 38 of 2005 plays a crucial role in safeguarding the rights and welfare of minors. Section 28 of this act addresses the termination, suspension, or circumscription of parental responsibilities and rights when it is deemed to be in the best interest of the child. In this comprehensive guide, we will explore the key provisions of Section 28, the factors considered by the court, who can apply for an order, and the implications of such orders.

What is Section 28 of the Children's Act?

Section 28 of the Children's Act deals with court-ordered limitations, suspensions, circumscriptions, or extensions of parental responsibilities and rights. The court that can make such an order includes the High Court, a regional court handling divorce matters, or the children's court within the jurisdiction where the child resides. This section is aimed at ensuring the safety and well-being of the child by addressing situations where a parent's ability to provide a nurturing environment is called into question.

Who can apply for an order under Section 28?

Applications for an order under Section 28 may be brought by a co-holder of parental responsibilities and rights, any person with a vested interest in the child's care and well-being, the child themselves with the court's leave, or a family advocate or representative of an interested organ of state. This broad scope allows for concerned individuals to take action if they believe it is necessary to protect the child's best interests.

Factors considered by the court

When making an order under Section 28, the court takes several factors into account to ensure that the decision aligns with the child's best interests. These factors include:
​
  1. Best interests of the child: The paramount consideration for the court is the best interests of the child. This principle is enshrined in Section 28(2) of the Constitution of the Republic of South Africa, 1996, and the Children's Act. The court carefully evaluates all aspects of the child's well-being, including their physical, emotional, and educational needs.
  2. Relationship with the parent: The court assesses the relationship between the child and the parent whose responsibilities and rights are being challenged. The nature and quality of this relationship play a significant role in determining the outcome of the application.
  3. Commitment towards the child: The degree of commitment shown by the parent towards the child is also considered. This encompasses factors such as involvement in the child's upbringing, financial support, and emotional support.
  4. Other relevant factors: The court takes into account any other relevant facts that may impact the child's best interests. This could include the child's cultural, religious, and linguistic background, as well as their relationship with siblings and other significant individuals in their life.

Powers of the court

The court has the authority to terminate or suspend the parental responsibilities and rights of the party in question. Let's explore the different scenarios:

Termination of parental responsibilities and rights

Termination of parental responsibilities and rights brings an end to the party's legal obligations and authority over the child. This can only occur if there is sufficient cause and it is deemed to be in the best interests of the child.

Suspension of parental responsibilities and rights

The court may also choose to suspend some or all of a person's parental responsibilities and rights for a specified period. This temporary measure can be implemented if it is believed to be in the child's best interests. If the suspension is linked to a specific event or circumstance, the court may require evidence or clarification to ensure the child's well-being is protected.

Extension or circumscription of parental responsibilities and rights

Section 28(1)(b) enables the court to extend or circumscribe a person's exercising of their parental responsibilities and rights. This means that the court can grant additional responsibilities and rights to a person who already holds them, or restrict the scope of their responsibilities and rights.

Combining with Section 23

Section 28(2) allows for the combination of an application under Section 28(1) with an application for the assignment of contact and care under Section 23. This provision enables the court to address multiple aspects of parental responsibilities and rights in a single proceeding.

The Best Interests of the Child

A fundamental principle of South African law, enshrined in the Constitution and the Children's Act, is the focus on the best interests of the child. The court considers various factors laid out in Section 7 of the Children's Act when determining the child's best interests. These factors include:
​
  • Child's age, maturity, and stage of development: The court evaluates the child's individual characteristics, taking into account their age, maturity, and stage of development.
  • Physical, emotional, and educational needs: The child's physical, emotional, and educational requirements are carefully considered to ensure their well-being.
  • Cultural, religious, and linguistic background: The court acknowledges the importance of preserving the child's cultural, religious, and linguistic identity.
  • Relationships with parents and significant others: The child's relationships with their parents, siblings, and other significant individuals in their life are assessed to determine the impact of any changes in parental responsibilities and rights.
  • Safety and protection: The court prioritizes the child's safety and protection, including safeguarding them from harm, abuse, neglect, and family violence.
  • Stability and security: The court considers the child's need for stability and security, aiming to minimize disruptions and ensure continuity of care.
  • Child's wishes: While taking into account the child's age and maturity, the court considers their wishes to the extent that they can understand the implications of the decision.

The best interests of the child standard requires a case-by-case approach and a comprehensive understanding of the child's unique circumstances. It is crucial to remember that the focus is on the child's interests, rather than the parents' desires or conflicts.

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Contact Details

​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


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Email: familylaw@mpw.co.za
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  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • South Africa GBV Bail Law Changes 2021-2025 Complete Guide
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities