When Does a Father Lose Parental Rights in South Africa?

Under section 28 of the Children’s Act 38 of 2005, a court may terminate, suspend, or restrict a father’s parental responsibilities and rights on application by a co-holder, the child, a person with sufficient interest, or an organ of state — typically on grounds of abandonment, abuse, neglect, failure to maintain, or conduct endangering the child. The most recent reported grant of termination in the Gauteng Division, F v F (2024/114386) [2025] ZAGPJHC 174 (25 February 2025), confirmed that roughly eight years of abandonment, refusal to cooperate with bonding sessions, and R42,750 in maintenance arrears can support a termination order, with the mother vested as sole guardian including authority over passports and the children’s international travel. Any suspension must be linked to a defined period or future event under section 28(1)(a) — indefinite suspension is not legally competent — and a Family Advocate or court-ordered parenting plan under section 33 is usually attempted before litigation runs.

The Legal Framework: Parental Responsibilities and Rights under the Children’s Act

The Children’s Act 38 of 2005 governs parental responsibilities and rights (PRR) in South Africa, replacing the older fragmented common-law and customary-law treatment of paternal rights. Section 18(2) defines PRR as four distinct components — care of the child, contact with the child, acting as guardian, and contributing to maintenance — each of which can be separately terminated, suspended, or restricted by a court. Section 28 of the Constitution makes the best interests of the child the paramount consideration in every matter affecting the child, and every court dealing with PRR is bound by it.

How a father acquired his rights in the first place determines the statutory pathway for losing them:

How fathers acquire parental responsibilities and rights under the Children’s Act 38 of 2005

Father’s status	Acquisition pathway	Key section
Married to the mother (or married at the time of conception or birth)	Automatic — full PRR attaches by operation of law	Section 20
Unmarried, lived with the mother in a permanent life partnership at the child’s birth (or while consenting to be identified)	Automatic PRR on meeting the statutory conditions	Section 21(1)(a)
Unmarried, not in a life partnership — consent to be identified, customary-law damages, or consistent contribution to upbringing and maintenance	Acquired by eligibility (the third leg of section 21(1)(b))	Section 21(1)(b)
Unmarried, none of the above automatic routes	By agreement registered with the Family Advocate or made a court order, or by court application	Section 22 (agreement) / sections 23 and 24 (court)

Section 28 of the Act then operates as the exit door: it allows any person with standing to apply to terminate, suspend, extend, or restrict rights that have already been acquired. Loss of rights is therefore not a question of how the rights were originally obtained — the section 28 procedure applies to all fathers regardless of marital status — but it does turn on which statutory category the father fell into at the outset.

The Four Grounds on Which a Father Can Lose Parental Rights

Section 28 of the Children’s Act does not contain a closed list of grounds. The court weighs the best interests of the child and any other relevant factor when deciding whether to terminate, suspend, or restrict a father’s rights. Across the reported case law and the practitioner commentary, four grounds consistently support a section 28 order against a father:

• Abandonment. Sustained failure to provide emotional, financial, or developmental support. In F v F (2024/114386) [2025] ZAGPJHC 174 (25 February 2025), the Gauteng Division treated roughly eight years of non-involvement, refusal to cooperate with bonding sessions, and R42,750 in maintenance arrears as collectively supporting termination against the father.
• Abuse or endangerment. Physical or emotional abuse of the child, or conduct that exposes the child to harm — including domestic violence against the other parent where the child is exposed to it.
• Neglect. Failure to meet the child’s basic care, supervision, or developmental needs, including persistent failure to engage with schooling, medical care, or therapy.
• Failure to maintain. Persistent non-compliance with a maintenance order. In GM v KI 2015 (3) SA 62 (GJ), the South Gauteng High Court ordered suspension rather than termination until the father purged his maintenance default, on the principle that parental rights and responsibilities are “concomitant” — neither can be fully disclaimed while the other is asserted.

Additional grounds cited across the practitioner literature include substance abuse that impairs parenting, conduct that frustrates the other holder’s exercise of rights, and patterns of behaviour that make joint decision-making on schooling, medical care, or religion unworkable. No single ground is, on its own, sufficient — the court weighs the totality of the evidence against the best-interests standard in section 28 of the Constitution.

Section 28 in Practice: How the Court Decides

Section 28(1)(a) is the operative provision. On application, the court may order termination, suspension, extension, or restriction of parental rights. The same section also contains a structural limit: any suspension must be linked to a defined period or to a future event — a perpetual suspension is not legally competent, because the order must give the affected father a prospect of restoration once the condition is met.

Before granting an order the court weighs a non-exhaustive list of factors drawn from section 28 and read with the constitutional best-interests standard:

1. The best interests of the child, which is the paramount consideration under section 28 of the Constitution.
2. The nature and quality of the relationship between the child and the rights holder whose status is being challenged. In F v F (2025), the absence of any meaningful relationship supported termination; in GM v KI (2015), an existing relationship supported suspension rather than termination.
3. The extent of the rights holder’s commitment to the child — financial, emotional, and practical — assessed over time rather than by recent token gestures.
4. Any other factor the court considers relevant, including the impact of the order on the child’s development, the views of the other parent, and the likelihood of the rights holder complying with any conditions the court might impose.

A Voice of the Child report, or the views of a suitably qualified social worker or psychologist, can be decisive — particularly where the child is of an age and maturity to express a view. In F v F (2025), the Voice of the Child report confirmed the children’s own wishes and was a material factor in the grant of termination. The court may condone procedural defects in the founding affidavit, but the underlying evidence must still support the order sought.

Who Can Bring the Application

Section 28(3) limits who can bring a section 28 application. The closed list is shorter than many litigants assume:

Who may apply to terminate, suspend, or restrict a father’s parental rights under section 28(3)

Eligible applicant	Typical role	Common situation
Co-holder of parental rights	Usually the mother; sometimes another co-guardian	The most common applicant in private family disputes; the applicant in F v F (2025)
The child themselves	Acting through a litigation friend or with leave of the court	Reserved for older or mature children with the necessary assistance
Person with sufficient interest	Family member, primary caregiver, or other third party with a defined role in the child’s life	Grandparent or extended family member who has been the primary caregiver and seeks formal guardianship alongside the section 28 order
Organ of state	Provincial Department of Social Development, acting through a designated child protection organisation	Child-protection investigations, removal and placement proceedings, cases where the matter escalates from a school or social-worker report

Standing cannot be expanded by implication — a person who is none of the above does not have automatic access to the section 28 procedure. In C v L (2012), the application was first brought through the Children’s Court after sustained non-compliance by the father, illustrating how the same factual pattern can be raised through different fora depending on the applicant’s identity.

Forum: Which Court Hears the Application

Three courts can hear a section 28 application, and the choice of forum is dictated by who the applicant is and how the matter has come before the court:

• High Court. Has general jurisdiction over section 28 applications and is the typical forum for disputes between parents. In Gauteng, these applications run in the Gauteng Division of the High Court at either the Johannesburg seat (which serves the central, west, and south of the province) or the Pretoria seat (which serves the north, including Centurion, Pretoria, and Midrand).
• Divorce court. A division of the High Court that hears section 28 applications in the course of divorce proceedings, including those brought as part of a settlement or contested order.
• Children’s Court. Can hear section 28 applications that arise from child-protection proceedings, particularly where the Department of Social Development is the applicant or where the matter has been instituted after a formal child-protection investigation.

What the Court Can Order

Section 28 gives the court four possible orders, and the choice between them is the most consequential decision in the application. The orders are not interchangeable — each sends a different signal about restoration, the relationship between rights and responsibilities, and the practical likelihood of the father being involved in the child’s life going forward.

Section 28 orders: what the court can do and what it means in practice

Order	What it does	Typical situation
Termination	The rights holder loses the right entirely, with no automatic right of return	F v F (2025): the father was deprived of all four PRR components and the mother became sole guardian
Suspension	Temporary loss of rights for a defined period or until a specified future event	GM v KI (2015): suspension until the father purged his maintenance default, on the principle that rights and responsibilities are concomitant
Restriction	The rights holder keeps some PRR components but loses others (for example, contact under supervision while guardianship passes to the other parent)	Cases where the relationship with the child is not broken but unsupervised contact is not safe
Extension	A third party (often a family member) has rights extended to them where this serves the child	Cases where the primary caregiver is not a parent and seeks formal recognition

Consequences Once Parental Rights Are Lost

Once a section 28 order is granted, the practical consequences for the father and the remaining guardian are immediate and structural. The father ceases to be a co-guardian, and the remaining guardian (in most cases, the mother acting alone) takes exclusive decision-making on schooling, medical care, religion, and the child’s property. The court typically makes a costs order against the unsuccessful party — in F v F (2025), costs were awarded on a party-and-party scale against the father.

Two practical consequences are worth flagging separately because they are often what the applicant actually wants the order for:

• Passport and international travel authority. Authority to issue the child’s passport, consent to international travel, and consent to the child’s removal from South Africa vests in the remaining guardian. In F v F (2025), the mother was given this authority without the father’s consent — a significant practical step in any case where one parent was previously using consent as leverage.
• Maintenance is not automatically extinguished. Maintenance obligations are not switched off by termination of other rights. Under the principle in GM v KI, rights and responsibilities are concomitant, but the Maintenance Act creates a separate statutory obligation that the Maintenance Court can continue to enforce by emoluments attachment orders, attachment of bank accounts, warrants of execution, contempt applications, or criminal prosecution.

How a Father at Risk Protects His Position

Section 28 applications move quickly once issued, and the timeline between issue and hearing is short. A father who suspects an application is being prepared, or who has just been served, can take practical steps to preserve his position:

1. Engage a family law attorney early. The earlier the legal involvement, the more options remain open — including a section 33 parenting plan through the Family Advocate’s office before any contested filing.
2. Comply strictly with all existing orders. Wilful non-compliance with maintenance and contact orders is the most consistently cited ground in the case law. Even imperfect compliance, evidenced on the record, materially changes the court’s assessment.
3. Preserve evidence of involvement. School communications, medical-visit attendance, voluntary financial support, and witness statements from people who can corroborate the role played in the child’s life are the kind of evidence the court weighs against the applicant’s evidence of abandonment.
4. Use the Family Advocate or a section 33 parenting plan process. This is the conventional route to formalise contact and guardianship arrangements before any litigation runs, and the court will look at the steps taken outside litigation when assessing the parties’ bona fides.
5. Deal with paternity disputes proactively. Where paternity is in dispute, the correct route is a section 23 application or a court-ordered DNA test, not waiting for the question to be recycled as a ground for termination later.

These are not theoretical steps. Burger Huyser Attorneys’ Family Law Department, led by Director Anna-Mi Nel, has filed on both sides of section 28 applications and is well placed to advise on the same kind of pre-litigation strategy on either side of the matter.

The Relationship Between Loss of Rights and Maintenance

The Children’s Act, the Maintenance Act, and the common law treat maintenance as a free-standing obligation. Loss of contact or guardianship does not, on its own, extinguish the duty to pay. The Supreme Court of Appeal has been consistent that a parent cannot use the non-exercise of contact or a refusal of access as a defence to a maintenance claim, and the Maintenance Court (a Magistrate’s Court) operates independently of the High Court.

The Maintenance Court can enforce maintenance through:

• Emoluments attachment orders against the defaulter’s employer.
• Attachment of bank accounts.
• Warrants of execution against movable property.
• Contempt of court applications.
• Criminal prosecution for wilful non-compliance in serious cases.

The practical upshot is that a father who is losing contact may not lawfully stop paying maintenance in retaliation, and a father who is being denied contact must enforce it through the Children’s Court or High Court rather than through self-help. Cross-applications in the maintenance and PRR forums are common, and the timing of each affects the other — a point the firm’s litigation attorneys regularly flag for clients during the first intake.

Losing — or defending — parental rights is one of the most consequential family-law disputes in South Africa, and applications under section 28 of the Children’s Act move quickly once issued. Burger Huyser Attorneys’ Family Law Department, headed by Director Anna-Mi Nel, runs contested and uncontested matters across Gauteng from the firm’s head office at 49 First Avenue, Linden, Randburg (011 888 0246, after-hours 061 516 6878). The firm files in the Gauteng Division of the High Court, the divorce court, and the Children’s Court as the matter requires, and routinely recommends a section 33 Family Advocate mediation before any contested section 28 application is launched. The firm holds a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and supports clients in family-law matters from the first intake through to a final court order. Speak to the team about the specific facts before any filing is issued — early advice can change the available options.

Frequently Asked Questions

Can a father lose parental rights automatically by abandoning the child?

No. Section 28 of the Children’s Act 38 of 2005 requires a court order before any father’s parental responsibilities and rights are terminated, suspended, or restricted. Abandonment is the most common ground for an application to do so, but the loss only takes legal effect once a court has granted the order.

Who can apply to terminate a father’s parental rights?

A co-holder of parental rights (typically the mother), the child themselves (with appropriate assistance), a person with sufficient interest, or an organ of state such as the Department of Social Development acting through a designated child protection organisation, under section 28(3) of the Children’s Act.

What court hears an application to terminate a father’s parental rights?

The High Court has general jurisdiction over section 28 applications, the divorce court hears them in the course of divorce proceedings, and the Children’s Court can hear them where the matter arises from child-protection proceedings. In Gauteng, these applications run in the Gauteng Division of the High Court (Johannesburg or Pretoria seat).

Does losing parental rights end maintenance obligations?

No. Maintenance is a free-standing obligation under the Maintenance Act, separate from care, contact, or guardianship. Even after a father’s other parental rights are terminated, the Maintenance Court can continue to enforce maintenance through emoluments attachment orders, attachment of bank accounts, warrants of execution, or contempt proceedings.

How long does a section 28 application take?

The court must determine the matter once issued, but the practical timeline depends on whether the application is opposed, whether a Voice of the Child report is commissioned, and whether Family Advocate mediation is attempted first. Unopposed or clearly evidenced applications can resolve within months; opposed matters typically run longer, sometimes overlapping with related maintenance or divorce proceedings.

Can a father get his parental rights back after termination?

Only by bringing a fresh application under section 28 — there is no automatic reinstatement. The court will weigh whether circumstances have materially changed since the original order and whether restoration serves the best interests of the child, which is a different and harder test than the original loss-of-rights test.

Does an unmarried father have fewer protections against losing rights than a married father?

No. Section 28 applies equally to all fathers regardless of marital status. The distinction lies in how the rights were acquired: an unmarried father who acquired rights under section 21 automatically, or had them formalised under section 22 or 23/24, has the same protection against loss as a married father who acquired rights under section 20.