Understanding The Children’s Act Section 28: Parental Rights And Responsibilities
Regarding our children, few things are as important—or as emotionally charged—as the rights and responsibilities of those caring for them. But what happens when the people responsible for a child’s well-being are no longer fit to fulfil that role? Or when someone else steps forward to provide a child’s care? That’s where South Africa’s Children’s Act, especially Sections 28 and 23, comes into sharp focus.
Section 28 of the Children’s Act allows the court to suspend, limit, extend, or end parental rights and responsibilities if it’s in the child’s best interests. This legislature ensures that the child’s safety, care, and development are always the top priority in any legal decision.
To truly understand Section 28, we must explore how South African law treats the rights and duties that come with parenthood. But we also need to look at Section 23, which opens the door for others—like grandparents, relatives, or close family friends—to step in when it’s in the child’s best interest. Let’s break it down in simple terms.
What Is Section 28 All About?
Section 28 of the Children’s Act 38 of 2005 deals with the power of the courts to suspend, terminate, restrict, or extend parental rights and responsibilities. These decisions are not made lightly, as they involve altering one of the most fundamental legal and emotional bonds in a child’s life.
The court must consider every aspect of the child’s emotional, psychological, and physical well-being before interfering in what are typically protected rights held by parents or guardians.
Section 28 is most often used in situations where:
- A parent or guardian is no longer fit to care for a child (due to neglect, abuse, absence, or other serious concerns),
- One parent wants to limit the other’s involvement in the child’s life,
- A caregiver or relative believes they should take on a more official role in the child’s upbringing.
Under this section, many individuals, not just the other parent, can make applications. This ensures that any concerned party—including extended family members or even the child themselves, with permission from the court—can take steps to protect the child’s welfare.
Crucially, the court will always prioritise the child’s best interests, a foundational principle of South African family law. That means every case is assessed on its unique facts, and decisions are made to protect the child’s current and future well-being above all else.
Who Can Apply Under Section 28?
You don’t need to be the biological parent to request a change in a child’s caregiving structure. Section 28(3) allows a broad group of people to approach the court, including:
- A co-holder of parental rights (e.g. one parent asking to restrict the other),
- Anyone with a “sufficient interest” in the child’s care and development,
- The child themselves (with the court’s permission),
- A family advocate or a representative from a relevant government department.
This flexibility ensures that someone can intervene when a child’s well-being is at risk—even if that person isn’t a parent.
How Does The Court Decide?
When someone applies to change parental rights and responsibilities, the court doesn’t just look at paperwork. It takes a 360-degree view of the situation, factoring in:
- The relationship between the child and the person whose rights are in question,
- The level of commitment that person has shown to the child,
- The child’s safety, stability, and emotional security,
- Any other relevant facts that the court believes could affect the child’s well-being.
Again, the golden thread is this: children’s rights come first, and the child’s best interest is the guiding principle behind every decision.
Where Section 23 Fits In: Assigning Contact And Care
While Section 28 deals with removing or modifying existing parental responsibilities, Section 23 speaks to a different but related scenario: what if someone else wants to gain rights to care for or contact the child?
Let’s say a grandparent, aunt, uncle, or even a close family friend has been playing a significant role in a child’s life. Under Section 23, that person can approach the court to request official rights to care for or have contact with the child.
They don’t need to prove the parent is unfit—but they do need to show:
- A strong, positive relationship with the child,
- A demonstrated commitment to the child’s upbringing,
- Some level of contribution to the child’s care or financial support.
These applications are particularly common when a parent passes away, is absent, or cannot fulfil their responsibilities. Like with Section 28, the court will only grant such rights if they align with the child’s best interests.
The Legal Process: What To Expect
If you’re considering applying under Section 28 or Section 23, here’s a rough guide to how the process works:
- Consult with a family law attorney – Understanding your legal footing is essential.
- Prepare documentation – This may include proof of your relationship to the child, financial contributions, and reasons for your application.
- Submit your application to the appropriate court – Either the High Court, a Divorce Court (in matters of separation), or a Children’s Court.
- Court evaluation – The court may ask for expert input from social workers, psychologists, or family advocates.
- Final decision – The court will issue an order that reflects the child’s best interests.
It’s not always quick or simple but is structured to ensure children’s rights are never compromised.
Navigating parental rights and responsibilities can be complex, especially when circumstances change or someone new wants to step in for the child’s good. Sections 28 and 23 of the Children’s Act exist to provide a legal, compassionate framework for making these critical decisions.
Knowing your rights and responsibilities could make all the difference, whether you’re a parent, grandparent, or someone who deeply cares for a child. The law supports parental roles and, more importantly, children’s well-being.
At Burnett Attorneys & Notaries, we specialise in guiding families through complex legal matters with care, clarity, and compassion. If you’re unsure about your standing under Section 28 or want to pursue care or contact rights under Section 23, we’re here to help. We’ll walk you through every step—from consultation to court—ensuring that your actions are legally sound and always in line with the child’s best interests. Contact us today for expert assistance on your family law matters.