It happens quite often that grandparents get refused access to their grandchildren, despite the fact that they have been intricately involved in their lives and upbringing.
The big question that arises is whether or not South African law protects the grandparents’ rights when it comes to the aforementioned situation?
It is very important to realise from the outset that the South African law does not explicitly deal with grandparents’ rights over their grandchildren.
However, the Children’s Act 38 of 2005 sets the basis on which grandparents can establish such rights. Section 23 of the Children’s Act states that anyone who has an interest in the care, well-being or development of a child may approach the relevant court for an order granting contact with the child or care of the child.
When an application is brought by a grandparent for either care or contact over a grandchild, the paramount consideration of the court will be the best interests of the child.
This consideration is in line with the South African Constitution, which clearly states in section 28(2) that the best interests of a child will always be the paramount consideration in every matter concerning the child. According to section 7 of the Children’s Act the courts should consider when determining the best interests of the child, the need of the child to stay in the care of his or her parents or family and the need to maintain a connection with them and his or her culture and traditions.
The courts will also consider other factors such as the relationship between the grandparent and the child and the extent of dedication shown by the grandparent towards the child.
The courts are disinclined to intrude on parental authority and will only do so if it would have a positive impact on the child’s interests and well-being.
The South African law is clear in this respect and thus grandparents who wish to play an active role in their grandchildren’s lives must positively influence them, not cause disagreement within the child’s situation and value the rights and responsibilities of the child’s parents.
When a grandparent seeks to apply for guardianship (in other words, take on the responsibility of the parent as opposed to mere contact with the grandchild), he or she will be required to provide adequate reasons to the high court illuminating the question as to why the child’s current guardian is not the appropriate person to hold such title and rights.
It is always advisable to attempt to resolves disputes involving children through mediation, rather than litigation. However, should a child be the victim of abuse or neglect, urgent legal intervention would be necessary in order to safeguard the interests of the child.
Should you wish to be more involved in the lives of your grandchildren or safeguard their interests, we recommend that you contact our offices on 011 918 4116 to arrange a consultation with one of our family law attorneys.
Article by Melissa Ward, candidate attorney at Malherbe, Rigg & Ranwell.
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