There can be no doubt that grandparents, more often than not, are intimately involved in their grandchildren’s lives and upbringing, and they provide care. But what happens when they are denied access to and contact with their grandchildren?
Despite the generally recognised importance of the role grandparents play in the lives of many children, not only as caregivers but also in their traditional role as grandparents, no specific status is attached to being a grandparent in South African law. Regardless of the role they fulfil, grandparents never had any automatic, inherent rights over their grandchildren. However, in terms of the Children’s Act 38 of 2005 (the Act), grandparents have locus standi to approach the Courts to establish such rights. In terms of the Act, any person who has an interest in the care, wellbeing or development of a child, can apply to the High Court or Children’s Court for an order for care, contact or guardianship over the minor child.
When considering such application, the best interests of the child would remain the overriding concern. The court could refer any such application to the family advocate for investigation and recommendation. The assignment of rights to a third party has thus in the past always been seen as an interference with the rights of parents and the court has consequently been reluctant to assign parental responsibility and rights to third parties. South African law is very clear in this regard and the courts do not like to intrude on issues of parental authority and will only do so if it would positively affect the child’s upbringing and wellbeing.
In the judgment of LH V LA 2012 6 SA 41, 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 his father, their son. The mother got married a year after their grandchild’s birth. The mother had originally initiated contact between her son and his grandparent. The grandparents thereafter had regular contact with their grandson, who soon started to spend weekends with them.
The arrangement was abruptly ended after their grandson’s third birthday. Despite various attempts by the grandparents to convince the mother to allow them contact with their grandson, they were still denied access by the mother on the basis that contact with grandparents had caused numerous problems in the past and further contact would not be in the best interests of the child.
Having reference to the Act, the court concluded that the Act recognises that a child is a social being and that members of the extended family, more often than not, play an important part in a child’s social and psychological development. The court urged that contact should be encouraged, unless there were compelling reasons to prohibit such contact. Since no reasons could be found, contact was granted to the grandparents.
However, if, upon application, grandparents are granted care and contact rights, the parental rights and responsibility of the natural parents or guardians are not dimished. If grandparents wish to exercise full parental responsibility, they will have to approach High Court on application for guardianship and will need to furnish the High Court, as the upper guardian of all minors, with sufficient reasons as to why the current guardian is not a suitable person to hold such rights.
Children’s Act 38 of 2005
LH and Another v LA 2012 (6) SA 41 (ECG)
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