Parental rights when incarcerated

What happens to a parent’s rights if they commit a criminal offence? 

According to the Department of Correctional Services (2021), in 2019 there were 162 875 inmates in South Africa, 97% of them male. According to the General Household Survey (2019) 42% of children in South Africa lived only with their mothers. Research conducted by the Human Sciences Research Council (HSRC) and the South African Race Relations Institute (SARRI) over a period of five years showed that 60% of South African children have absent fathers. Not all absent fathers are imprisoned, but inmates represent a proportion of the men whose children face life without their fathers as part of their everyday lives. What happens to parental rights when someone is incarcerated? Do they forfeit their rights? Should they? It depends.

Rights are not automatically removed

A parent’s rights and responsibilities, which include guardianship as well as care and contact, are not automatically taken away if a parent is incarcerated or has a sentence against their name. The factors that play a role in a court’s decision to terminate a parent’s rights and responsibilities are clearly set out in the Children’s Act. The High Court, as the upper legal guardian of all children in South Africa, is the only body that can make this decision.

The High Court might become involved if a parent or guardian is not fulfilling (or is unable to fulfil) their duties. Care of a child could be transferred to another parent or even a third party, if appropriate. However, depending upon the circumstances of the case, a parent could retain both guardianship and care and contact rights in respect of the child. Conversely, they could lose or retain a combination of these.

Available evidence

The courts will base their decision on the available evidence, which might include evidence from the parents as well as the recommendations of the Family Advocate or any other expert (such as a social worker) tasked by the Court to investigate the circumstances of the child and the parents. The “best interest of the child” is the guiding principle at all times. 

When does a child need protection? 

Section 150 of the Children’s Act sets out certain behaviours that signal a child is in need of care and protection, for example:

• The child lives in or is exposed to circumstances which can harm the child physically or mentally or harm social wellbeing
• There is reason to believe that if returned to the care of a parent/caregiver/guardian the child will be exposed to circumstances that may seriously harm the child’s physical or mental or social wellbeing
• The child is in a state of physical or mental neglect
• The child is being maltreated or abused or deliberately neglected or degraded by a parent/caregiver/family member or person holding parental rights and responsibilities

The Children’s Act states that the best interests of the child must be the determining factor in any decision regarding the removal of a child in need of care and protection from the home and placement in temporary safe care. All relevant facts must be taken into account, including the safety and wellbeing of the child as the first priority.

Nature of the crime

However, let’s assume that the child is living with a caring parent or guardian and is well looked after. There is no need to remove the child from the home. They are not neglected and the home environment does not pose a risk of physical or mental harm. The question is: what rights should the parent in custody have? And the answer to this will be influenced by the nature of the crime they were sentenced for and whether or not they pose a risk to the child’s wellbeing. If a man has been convicted of a crime of violence against the child’s mother and/or against the child, is it reasonable for them to retain all of their parental rights and responsibilities? Many women cower in terror at the prospect of an abuser being released from prison. Yet if the abuser still has parental rights, he may come out of prison and expect to be involved in his child’s life. If there is no evidence of abuse against the child, there may be little the mother can do to prevent this. Yet it may place her in immediate danger. What can she do?

Extenuating circumstances

Holders of parental rights and responsibilities, in this case the mother or guardian with whom the child lives, may apply to the High Court or a children’s court for an order:

• Suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child
• Extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child

In other words, a man who has been abusive towards the mother of his child may be refused the right to contact with the child, on the grounds that it exposes the child to circumstances harmful to their social wellbeing. If permitted, such contact may need to take place under supervision. 

When considering an application to terminate a parents’ rights and responsibilities the court must take into account the following:

• The best interests of the child
• The relationship between the child and the person whose parental responsibilities and rights are being challenged
• The degree of commitment the person has shown towards the child
• Any other fact that should, in the opinion of the court, be taken into account (e.g., history of violence)

Rights of the father

We believe that children need both parents. South Africa has the second-highest prevalence of absent fathers in Africa after Namibia. The high proportion of children growing up without their fathers has been associated with poor mental wellbeing and a risk of social ills. According to Malose Langa, Associate Professor in the Psychology Department at Wits University, “The absence of fathers results in a lot of pain…a lot of risk-taking behaviours including experimentation with drinking and smoking.” It is in everyone’s interests to enable fathers to stay involved in their children’s lives, even if incarcerated.

However, South Africa is also a country with staggeringly high rates of gender-based and intimate partner violence. Children suffer from these events, even if they are not physically abused. In fact, witnessing domestic abuse is classed as child abuse and can lead to lasting trauma. Therefore, children need protection from a parent who has abused or may abuse the other parent. Such judgements can only be made on a case-by-case basis. 

Protection order

Any woman who is frightened about her abuser’s forthcoming release from prison can apply for a protection order, which aims to prevent the recurrence of domestic violence. It details the conduct the alleged offender may not undertake, which may include coming within a certain distance of the woman’s residence, etc.

Cape Town attorney can help

SD Law is a firm of family attorneys in Cape Town and Johannesburg with deep experience of helping families in difficult circumstances. We will do everything in our power to facilitate parent–child relations, if appropriate. But we can also secure a protection order if circumstances indicate it is in the child’s best interests. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Emotional abuse by partners – a real-life example
• Parental rights and responsibilities and substance abuse
• Leaving an abusive relationship with a child
• Child custody and guardianship

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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