Written by: Denisha Padachey
30 JUNE 2024
What Is the Legal Process Of Applying For Guardianship In South Africa?
In South Africa, many minor children are raised by family members such as grandparents or friends of the family rather than their biological parents. When adoption is not a viable option in situations like these, the caregiver of the minor child may need to apply for guardianship to ensure they have the legal rights and responsibilities to raise the child in a stable, supportive environment.
To apply for guardianship rights for a minor child or minor children, the caregiver must follow the guardianship application process in terms of Section 24 of the Children’s Act 38 of 2005, as amended (hereinafter the “Children’s Act”). It is essential to understand the difference between a Section 24 guardianship application and an application in terms of Section 23 of the Children’s Act, which pertains solely to care and contact.
Under Section 23 of the Children’s Act, the applicant(s) only apply for care and contact rights, allowing them to care for the minor child and have contact with the child. A Section 24 guardianship application seeks not only care and contact rights but also full guardianship, which grants them the rights and responsibilities automatically awarded to a biological parent under the Children’s Act.
How Does an Application For Guardianship Impact The Rights Of Biological Parents?
A court may grant guardianship to an applicant(s) based on a Section 24 guardianship application submitted to the Court without inherently terminating the parental rights and responsibilities of the existing biological parents. Therefore, the applicant(s) must specifically request the limitation, suspension, or termination of the biological parent’s parental rights in terms of Section 28 of the Children’s Act in their application if deemed necessary. This determination depends on whether it serves the best interests of the child for the biological parents to retain some or all of their rights and responsibilities.
Can Biological Parents Still Have Contact If Guardianship Is Granted?
The ability of biological parents to maintain contact with the child after a successful guardianship application depends on the court’s decision. If the court allows the biological parents to retain certain rights, it may also permit continued contact between them and the minor child.
In cases where guardianship is granted but the biological parents retain some rights, Section 23 of the Children’s Act becomes relevant. Section 23 deals specifically with issues of care and contact, allowing the court to structure an arrangement that prioritises the best interests of the child. This might include primary residence with the guardian and regulated contact with the biological parents. In such cases, a parental plan can help clarify each party’s rights and responsibilities, ensuring all decisions align with the child’s welfare. For more information on parental plans and their requirements, consult our landing page on Parenting Plans in South Africa or our article, Can Unmarried Parents Enter Into A Parental Plan?
What Factors Will A Court Consider In A Guardianship Application?
There are many factors that a competent court will consider in determining whether to award guardianship rights to a person (the applicant). It is, therefore, pertinent for the applicant to provide proof of the following factors in their guardianship application:
- That awarding guardianship to the applicant would be in the best interests of the minor child;
- The nature of the relationship between the applicant and the minor child from birth to the present;
- The degree of commitment the applicant has shown toward the minor child;
- The extent of the applicant’s financial contribution toward the minor child;
- Why the minor child’s existing parents/guardians are not suitable to hold guardianship rights or why their rights should be limited, suspended, or terminated; and
- Any other relevant factors the Court should consider.
The Constitution of the Republic of South Africa, 1996, confirms under Section 28 that a minor child’s best interests are paramount in all matters involving a minor child. Similarly, the Children’s Act aims to uphold the rights of minor children, emphasising their best interests. Therefore, a competent court’s primary concern when determining whether the guardianship should be awarded is the minor child’s best interests.
Section 24 Guardianship Applications and Parenting Plan Consultations. Contact Burger Huyser Attorneys Today
Applying for guardianship in South Africa, highlights the importance of considering a parental plan to cater to the child’s best interests while respecting the rights of all parties involved. If you need assistance with a Section 24 guardianship application or a parental plan, contact Burger Huyser Attorneys. Schedule an appointment with any of our skilled and professional family lawyers in South Africa , who will ensure that your case is managed with the utmost care and expertise. Contact us for immediate assistance on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
