South African law does not make specific provision for grandparents’ rights over their grandchildren. That said, the Children’s Act 38 of 2005 does provide for a way to establish such rights.The Children’s Act 38 of 2005 Law provides for third parties who have an interest in the care, well-being, or development of a child/ren to apply either to the High Court or to the Children’s Court for an Order for Care, Contact or Guardianship over minor children.

A grandparent wanting to establish certain rights over a grandchild would accordingly need to utilize the provisions provided by Section 23 and 24 of the Children’s Act for this purpose.  There are however cases at hand where the situation is such that a grandparent has no option but to approach the relevant Court for an Order for contact with the child/ren, alternatively care of the child/ren; alternatively guardianship rights over the child/ren.

When considering bringing such an application to court it is important to note the difference between an Order for care and one for contact.

“Care” as defined in Section 1 of the Children’s Act includes providing the child with a suitable place to live, proper living conditions, financial support and protecting the child from abuse and harm. It also deals with guarding against any infringement of the child’s rights, directing the child’s education and ensuring the best interest of the child are the paramount concern in all matters affecting the child.

“Contact” on the other hand, in relation to a child, means to maintain a personal relationship with the child. If the child lives with someone else, contact would entail communication with the child on a regular basis either in person or by telephone.

In an application for either care or contact, the Court will consider the following :

  • The best interests of the minor child/ren
  • The relationship between the Applicant (grandparent) and the minor child/ren and any other relevant person and the child/ren
  • The degree of commitment that the grandparent has shown towards the child/ren
  • The extent to which the grandparent has contributed towards the child/cren’s financial / maintenance requirements
  • Any other factor which in the opinion of the Court ought to be taken into consideration.

Furthermore, in determining the best interest of the child, the Court will have regard to the need for the child to remain in the care of his or her parents or family and the child’s need to maintain a connection with his or her family and extended family.

It is therefore important to note that an order granting grandparent care or contact does not take away the parental rights and responsibilities another person has in respect of the child. For example, a mother does not lose her parental rights and responsibilities when the court assigns contact or care to the child’s grandparents, they will then merely be co-holders of parental rights and responsibilities in respect of the child.

In the case of a Guardianship Application, the Grandparent would need to submit reasons to the High Court, being the relevant Court for matters of this nature, as to why the child/children’s existing Guardian (being its parent/parents) are not suitable to hold such guardianship rights.

It is of great importance that should a grandparent want to exercise care and contact with their grandchild/ren when they have been denied such care and contact that they seek legal advice and assistance from an Attorney. Our offices specialise in family law and are here to assist you in any matters relating to children.

For direct answers to your specific personal questions, please contact us directly.

Read more about our child law services.

Author – Kate Bailey – Hill

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