The Children’s Act sets out the responsibilities and rights in respect of children which are acquired by parents (care, contact, guardianship and maintenance), and which allows for the immediate statutory enforcement of these in the various courts.
Grandparents of children, however, do not readily acquire these same parental responsibilities and rights in an immediately enforceable way, even in a limited capacity with respect to opportunities for care and contact, despite the important supportive role those grandparents tend to play in their grandchildren’s upbringing.
Grandparents can acquire full responsibilities and rights if they become the legal guardians of their grandchildren, but this will usually only occur if both parents are dead since the surviving parent becomes sole guardian when the other parent dies.
Grandparents wanting to acquire parental responsibilities and rights in respect of their grandchildren are required to pay the costs to bring an application in the High Court setting out why they should become a co-holder of parental responsibilities and rights together with the parents or other legal guardians of their grandchildren.
Due to the costs involved, these are often only brought in situations when the best interests of the children are being prejudiced by either or both of the parents, requiring the intervention of those grandparents. This includes situations where grandparents are being unreasonably deprived of opportunities for care and contact.
Maintenance orders against grandparents can still be obtained (if the other parent cannot afford to pay any maintenance for whatsoever reason) because this is based on the common law, recognising this duty of support by grandparents.
Is there a reasonable basis to deprive grandparents of their own statutory rights in respect of their grandchildren, especially when it comes to issues of care and contact? Should there be certain responsibilities and rights automatically acquired by them?
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Author – Murray Taylor