SECTION 28 OF THE CHILDREN'S ACT.

Here is a detailed response on Section 28 of the Children's Act in South Africa:

In South Africa, a court-ordered restriction, suspension, circumscription, or extension of parental rights and responsibilities is covered in Section 28 of the Children's Act 38 of 2005. When a parent's capacity to raise their child in a secure and supportive environment is questioned, this clause empowers the court to intervene on the child's behalf in order to safeguard the child's best interests.

Who can apply for an order under Section 28? A co-parent with parental responsibilities and rights, anyone with a stake in the child's care and well-being, the child themselves with the court's permission, or a family advocate or representative of an interested organ of state may all make applications for an order under Section 28. This broad scope allows concerned individuals to take action if they believe it is necessary to protect the child's best interests.

The key points about Section 28 are:

1. Who can apply: Applications can 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.
2. Factors considered by the court: The court considers the best interests of the child as the paramount factor, as well as the relationship between the child and the parent, the parent's level of commitment to the child, and any other relevant factors.
3. Powers of the court: The court can terminate (bring to an end) or suspend (temporarily prevent) the parental responsibilities and rights of a person. It can also extend or circumscribe (restrict the scope of) a person's parental responsibilities and rights.
4. Combining with Section 23: The court can combine an application under Section 28 with an application for the assignment of contact and care responsibilities under Section 23.
5. Best interests of the child: The best interests of the child, as outlined in Section 7 of the Act, are the primary consideration. This includes factors like the child's age, development, physical and emotional needs, and relationship with parents and other significant persons.

In summary, Section 28 provides a legal mechanism to protect children's rights and welfare by allowing the court to limit, suspend, or terminate parental responsibilities and rights when necessary to serve the child's best interests.

What are the specific criteria for the court to terminate parental responsibilities under Section 28?

1. The specific criteria for the court to terminate parental responsibilities under Section 28 of the Children's Act in South Africa include:Best Interests of the Child: The paramount consideration is the best interests of the child. The court 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 considered. This includes 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.
5. Sufficient Cause: The court must find sufficient cause to terminate the parental responsibilities and rights. This can include situations where a parent's ability to provide a safe and nurturing environment is called into question, such as abuse of a child or substance abuse.
6. Court's Discretion: The court has the discretion to terminate, suspend, or restrict parental responsibilities and rights based on the specific circumstances of each case. The court must balance the best interests of the child with the rights of the parent.

These criteria ensure that the court's decision aligns with the best interests of the child and that any termination of parental responsibilities is justified and necessary to protect the child's well-being

What role do family advocates play in applications under Section 28?

Family advocates play an important role in applications to terminate, suspend, or restrict parental responsibilities and rights under Section 28 of the Children's Act in South Africa.

Specifically:

Family advocates can directly apply for orders under Section 28.

This allows them to initiate proceedings to protect the best interests of the child if they believe it is necessary.

Family advocates represent the interests of the state in Section 28 applications.

As representatives of an interested organ of state, they can bring applications or participate in cases to ensure the child's welfare is prioritised.

Family advocates are tasked with performing the functions assigned to Central Authorities under the Hague Convention on International Child Abduction.

This includes taking action to secure the return of children wrongfully removed or retained.

The family advocate's office is a resource for the public to get guidance on Section 28 applications.

They can provide information and support to those seeking to terminate or restrict parental rights in the child's best interests.

In summary, family advocates serve as key players in the Section 28 process, with the ability to directly apply for orders, represent state interests, handle international child abduction cases, and assist the public - all with the goal of safeguarding children's rights and well-being

How does the court determine the best interests of the child in Section 28 cases?

Based on the search results, the key factors the court considers in determining the best interests of the child in Section 28 cases in South Africa are:

1. The relationship between the child and the parent(s):

• The nature and quality of the child's relationship with the parent(s) or caregiver(s)
• The parent's level of commitment and involvement in the child's upbringing

2. The capacity of the parent(s) to provide for the child's needs:

• The parent's ability to cater to the child's physical, emotional, intellectual, and developmental needs
• Any issues like abuse, neglect, or substance abuse that may impact the parent's capacity

3. The child's individual circumstances:

• The child's age, maturity level, gender, background, and other relevant characteristics
• The child's physical and emotional security, as well as their intellectual, social, and cultural development

4. Potential impact of changes in the child's life:

• The likely effect on the child of any separation from parents, siblings, or other caregivers
• The need for the child to remain in a stable family environment or one resembling a caring family

5. Other relevant factors:

• The child's need to maintain connections with family, culture, and tradition
• Any family violence or harmful behaviour involving the child or family members
• The need to protect the child from physical, psychological, or other harm

The court must balance all these factors to determine what outcome would be in the paramount best interests of the child, even if it means limiting or terminating a parent's responsibilities and rights. The family advocate also plays a key role in representing the state's interests and providing recommendations to the court

How does the court balance the child's best interests with other legal considerations?

The court must carefully balance the child's best interests with other legal considerations and rights when making decisions that affect children. Here are the key ways the court navigates this delicate balance:

Paramount but Not Absolute

While the child's best interests are of paramount importance, they are not absolute. The court must consider the child's interests alongside other legitimate interests and rights, including those of the parents, other family members, and broader societal needs. The best interests principle serves as a general guideline rather than an inflexible rule.

Contextual and Nuanced Application

The application of the best interests principle requires careful consideration of the unique context and circumstances of each case. Courts must weigh all relevant factors, including the child's wishes and feelings, the nature of the child's relationships with parents and other caregivers, and any risks of harm to the child. This allows for a more nuanced and just application of the principle.

Balancing Act

Upholding the child's best interests often involves a delicate balancing act between competing interests and rights. For example, the court must balance the custodian parent's discretion in the child's upbringing with the non-custodian parent's right to contact and involvement. The goal is to strike a fair balance that prioritises the child's welfare while respecting other legitimate interests.

Guidance from Legislation

Positive law, such as the Children's Act in South Africa, provides guidance on how to interpret and apply the best interests principle in specific contexts. The Act requires the principle to be applied in all matters concerning children and provides a list of factors to consider when determining a child's best interests. This legislative framework helps ensure a consistent and appropriate application of the principle.

Role of Experts and Investigations

In complex cases, the court may order expert assessments and investigations to gain a comprehensive understanding of the child's situation and needs. This can include forensic assessments by social workers and psychologists. The input from these professionals helps inform the court's decision-making and ensures that the child's best interests are properly considered.In summary, the court must strike a careful balance between the child's best interests and other legal considerations, taking into account the unique context of each case, guidance from legislation, and input from experts when necessary. This allows for a nuanced and just application of the best interests principle.

How does the court ensure the child's participation in the decision-making process?

Based on the search results, the key ways the court ensures the child's participation in the decision-making process in Section 28 cases are:

1. Providing Opportunities for the Child's Voice:

• The court can grant leave for the child themselves to be a party to the application, allowing them to directly participate and have their views heard.
• The court must consider the child's wishes and feelings as a key factor in determining their best interests.

2. Representation and Advocacy:

• The child can be represented by a legal representative or an appropriate body to advocate on their behalf in the proceedings.
• The family advocate also plays a role in representing the interests of the child and providing recommendations to the court.

3. Procedural Safeguards:

• The court must ensure the child is afforded the opportunity to be heard, in line with the principle of audi alteram partem (hear both sides).
• This aligns with Article 12 of the UN Convention on the Rights of the Child, which provides children the right to be heard in judicial proceedings affecting them.

4. Comprehensive Assessments:

• The court may order expert assessments and investigations, such as by social workers and psychologists, to gain a thorough understanding of the child's situation and needs.
• This helps ensure the child's perspective and best interests are properly considered in the decision-making process.

5. Balancing Competing Interests:

• The court must carefully balance the child's best interests with other legitimate interests and rights, including those of the parents.
• This requires a nuanced, contextual application of the best interests principle to ensure the child's participation and voice are given due weight.

In summary, the court employs a range of measures to facilitate the child's meaningful participation in Section 28 proceedings, from granting them party status to ordering comprehensive assessments. This helps ensure the child's views and best interests are central to the court's decision-making

What methods does the court use to gather the child's views?

The court employs several methods to gather the child's views and ensure their participation in the decision-making process in Section 28 cases:

Providing Opportunities for the Child's Voice

• The court can grant leave for the child themselves to be a party to the application, allowing them to directly participate and have their views heard.
• The child's wishes and feelings are considered as a key factor in determining their best interests.

Representation and Advocacy

• The child can be represented by a legal representative or an appropriate body to advocate on their behalf in the proceedings.
• The family advocate also plays a role in representing the interests of the child and providing recommendations to the court.

Procedural Safeguards

• The court must ensure the child is afforded the opportunity to be heard, in line with the principle of audi alteram partem (hear both sides).
• This aligns with Article 12 of the UN Convention on the Rights of the Child, which provides children the right to be heard in judicial proceedings affecting them.

Comprehensive Assessments

• The court may order expert assessments and investigations, such as by social workers and psychologists, to gain a thorough understanding of the child's situation and needs.
• This helps ensure the child's perspective and best interests are properly considered in the decision-making process.

By employing these methods, the court aims to facilitate the child's meaningful participation and ensure their views are given due weight in Section 28 proceedings, while still balancing the child's best interests with other legitimate interests and rights.

Read more here:

• South African Government Website - This official document provides the full text of the Children’s Act, including Section 28. It is a valuable resource for anyone looking to understand the legal specifics and statutory language. View the document (gov.za).

• Law Library - This resource outlines the jurisdiction and powers of the children’s court, including matters related to the protection and well-being of children, care, contact, and support issues. It also discusses how these courts interact with other legal entities like the High Court. Explore more (Law Library).