Parents, you may not refuse contact of your children by the grandparents, without good reason.
In so far as grandparents’ rights and responsibilities are concerned, Sections 23 and 24 of
the Children’s Act, which govern non parental rights to care and guardianship of children,
came into operation on 1 April 2010.
A grandparent’s rights and responsibilities are not limited to those relating to care and
contact (as provided for in the Children’s Act), as there exists a duty of support between
grandparents and grandchildren in common law. While the general rule is that support
must always be sought from the nearer relative, such as the children’s mother or father, it
is possible that grandparents will have to support their grandchildren in the event that no
support is forthcoming from the nearer relative.
Grandparents often receive the fallout from their chidren’s divorces – limited, restricted or no access to their often beloved grandchildren, In the past the law and the justice system were often inaccessible. This has all changed with the New Children’s Act whose main objectives are, amongst others to:
- make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
- strengthen and develop community structures which can assist in providing care and protection for children;
- promote the preservation and strengthening of families;
And calls for
- the prioritisation of the best interest of the child,
- the right to the child being able to participate in any matter concerning that child,
- a child’s right of access to court.
One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or High Court,
It also makes provision for any person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship .
The Court In making its order, will consider and take into account:
- the best interests of the child;
- the relationship between the applicant and the child
- the degree of commitment that the applicant has shown towards the child
- the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
- any other fact that should, in the opinion of the court, be taken into account.
In LH and another v LBA (EL1426/20101, Eastern Cape High Court) the court had to decide what rights of access grandparents had to their grandchild.
The applicants sought an order allowing them access to their six year old grandson, born out of a relationship between their deceased son and the respondent. The respondent had initiated contact between the child and the applicants when the child was about six months old. The applicants then had regular contact with the child and he soon started to spend weekends with them. That arrangement continued until December 2008, after the child’s third birthday, when the respondent abruptly stopped it. Despite various attempts by the applicants to convince the respondent to allow them to see the child, they had not had any contact with him for the past three years.
That when considering such an application the Court is enjoined to consider, inter alia, the best interests of the child; the relationship between the applicant and the child, and any other relevant person and the child; and the degree of commitment that the applicant has shown towards the child. In terms of section 7 of the Children’s Act 38 of 2005, the Court must, when determining what is in the best interests of the child, have regard to the need for the child to remain in the care of his or her parents, family or extended family; and to maintain a connection with his or her family, extended family, culture or tradition.
The Court was not convinced that the reasons proffered by the respondent for refusing to allow contact between the child and his biological paternal grandparents were valid. However, the Court was also of the view that the extent of the access sought by the applicants was too wide, and it would not be in the child’s best interests to allow contact on that basis. A more limited right of access was granted.