Rights of grandparents
The rights of grandparents are often overlooked despite their involvement in their grandchildren’s lives. South African law only gives rights to parents, but the Children’s Act 38 of 2005 (“the Act”) allows interested persons, including grandparents, to establish care and contact rights over a minor.
Legal position in South African Law
South African courts prefer not to interfere with parental authority and will only do so if it is deemed necessary to benefit the child’s upbringing and well-being.
When considering an application for grandparents’ rights, the court will assess various factors, such as the nature of the relationship between the grandparents and the child, the level of commitment expressed towards the child, the degree of involvement in the child’s life and the best interest of the minor child.
Parental Rights and Responsibilities
It is worth noting that granting grandparents’ rights does not diminish the rights and responsibilities of the legitimate parents or guardians. However, South African law does recognize the rights of third parties or non-parents who have an interest in the welfare and development of a child, as established in sections 23 and 24 of the Act. In terms of these sections any third party may apply to a court, with competent jurisdiction, for an order granting the third-party contact with the child or care of the child.
Townsend-Turner and Another v Morrow 2004 (2) SA (32) (C) – In its ruling, the court emphasized that, even though it is the upper guardian of minor children, it cannot override the decisions of the child’s guardian solely on the basis that the court did not agree with the decision. The decision regarding a child’s contact with others is the responsibility of those who possess parental authority.
The court acknowledged that any third party may approach the court to request access rights for a child if it is in the child’s best interests. However, in this particular case, due to the conflict between the parties, the court did not believe that granting the applicant’s request to have access to the child was in the child’s best interests. The court held that enforced visitation would not be appropriate and that a relationship between the child and grandparents must develop naturally once the adult conflicts have been resolved. Therefore, the application was dismissed.
In Kleingeld v Heunis and Another 2007 (5) SA 559 (T) the court held that grandparents have locus standi to apply for access to a minor grandchild, but this is not an inherent right. A court may award special access when particular circumstances indicate that it would be in the child’s best interests, but the court should be cautious not to replace the parents as the primary decision-makers for the child, especially if there is no evidence that the parents are not acting in the child’s best interests.
In LH v LA 2012 (6) SA 41 (ECG) the paternal grandparents applied for an order in terms of section 23 of the Act to re-establish contact with their grandson after the tragic death of their son, who was the child’s father. The Judge, recognising the significance of a child’s bond with their grandparents, stated that it is generally in a child’s best interests to maintain a close relationship with their grandparents.
In this particular case, the mother’s opposition to contact with the grandparents was found to be influenced by her personal difficulties with the grandparents rather than considering the best interests her son.
The Judge ordered contact between the grandparents and their grandson but advised that contact had to be carefully defined so that it did not interfere with the biological mother’s responsibilities and rights. The court added that a reasonable transition period was required for the repair of the damaged relationship between the grandparents and the mother.
The court concluded that the Act recognises the importance of a child’s social and psychological development within the extended family and urged that contact should be encouraged, unless there were compelling reasons to prohibit such contact.
Recourse for grandparents
Litigation should be avoided if possible, and a formal mediation process should occur before litigation. Grandparents who wish to gain the right of access to their grandchildren can utilise the provisions of Section 23 and Section 24 of the Act to apply to the High Court or the Children’s Court for the relief sought. This application, however, and in light of the court’s reluctance, should not be taken lightly.
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