South African law does not make specific provisions for grandparents’ rights over their grandchildren/grandchild. However, the Children’s Act 38 of 2005 does provide an option for grandparents who have an interest in the care, well-being, or development of the minor children/child.
Children, in general, benefit immensely from a close relationship with their grandparents; it gives the minor children/child increased self-esteem and a grounding in the form of family and origins. The relationship between grandparents and minor children/child is often a special one that can enrich both generations.
Regardless of the role that grandparents fulfil, grandparents do not have any automatic right over their grandchildren/grandchild, unlike the biological parents of the minor children/child who automatically have these rights and responsibilities over the minor children/child. Grandparents wanting to establish certain rights over their grandchildren/grandchild, need to make use of the provisions provided for in terms of Sections 23 and 24 of the Children’s Act 38 of 2005 (“Children’s Act”).
Section 23 of the Children’s Act
Section 23 of the Children’s Act covers the assignment of care and/or contact over the minor children/child to an interested party, such as the grandparents, by way of a Court order. They may approach the High Court for an order granting care and/or contact over the minor children/child.
In all matters concerning the minor children/child, when a grandparent brings an application for either care and/or contact over the minor children/child, the best interests of the minor children/child are the Court’s main concern.
The minor children’s/child’s need to stay in the care of their parents or family and the need to maintain connections with their family, culture, and traditions are important factors a Court will consider when making a decision. Further to this, the Court will consider the relationship between the grandparents and the minor children/child and the degree of commitment they express towards the minor children/child, including their involvement in the minor children’s/child’s life.
This type of Court application is usually brought in cases where a grandparent has been denied or restricted physical or telephonic contact with the minor children/child by the parent/parents in order to have this contact reinstated or enforced, or if the minor children/child require financial support (maintenance), proper living conditions or a suitable place to stay (either with the grandparents or with parent/parents) in instances, where the parent/parents are unable to provide the required support for the minor children/child.
It is therefore important to note that an order granting the grandparent care and/or contact does not automatically terminate the parental rights and responsibilities of the minor children’s/child’s parent/parents. Unless the parental rights and responsibilities of the parents are in fact terminated, the grandparent will then become co-holders of parental rights and responsibilities in respect of the minor children/child.
Section 24 of the Children’s Act
Section 24 deals with the assignment of guardianship. If the grandparent seeks more than care and contact alone and wishes to take on greater parental responsibility of the minor children/child they can, as in the case of care and contact, apply to Court for an order granting them guardianship. As in the case of care and contact, such an application will not automatically terminate the guardianship of the minor children’s/child’s parents. However, more often than not, grandparents’ application for guardianship over the minor children/child, will include an application that the guardianship of the minor children’s/child’s parents be limited or terminated. In such an instance they will have to give the High Court, as the upper guardian of all minors, sufficient reasons as to why the minor children’s/child’s current guardian is not a suitable person to hold such title and rights. This can happen if the parents/parents have substance abuse or mental health issues that prevent them from exercising the appropriate parental rights and responsibilities such as providing the minor children/child with appropriate care and attention, or if the living situation is unsuitable for such minor children/child.
The case below demonstrates an issue where the contact arrangement between the paternal grandparents and their grandson was terminated by the mother.
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 Children’s 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 contact arrangement was terminated 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 contact 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.
Taking the Children’s Act into account, the court concluded that the Children’s Act recognises that a child is a social being and that members of the extended family often play an important part in a child’s social and psychological development. The court urged that contact should be encouraged unless there were valid reasons to prohibit such contact. Since no reasons could be found, the court granted contact with the grandson to the grandparents.
Mediation before litigation
It is always important to remember matters involving minor children/child to submit all disputes or concerns for mediation before approaching Court. Mediation can be beneficial by resolving the disputes at hand and achieving a positive outcome, without damaging the relationship between grandparents and parents.
It is important that should grandparents want to exercise care, contact or guardianship with their grandchildren/grandchild, they can seek legal assistance.
Article by Danielle Mylie | Associate