Few family disputes are as painful as one parent being shut out of their child’s life. Emotions run high after a separation, and it can be tempting for the parent who has day-to-day care to use contact as leverage. South African law takes a firm position on this. The Children’s Act 38 of 2005 contains specific provisions designed to stop one parent from frustrating the responsibilities and rights of the other, because those rights ultimately belong to the child as much as to the adult.
A parent who has care of a child and who refuses to allow the other parent to exercise their responsibilities and rights, contrary to a court order or a properly concluded parenting plan, is guilty of an offence. On conviction, that parent faces a fine or imprisonment for a period not exceeding one year.
Is It Ever Lawful To Refuse A Parent Contact With Their Child?
In rare and serious circumstances, yes, but only when limiting contact genuinely serves the child’s best interests, and never as a unilateral decision made in anger.
Contact is not an absolute right that overrides everything else. The guiding principle in every decision about a child is the child’s best interests, and there are situations where limiting or supervising contact is appropriate, such as where there is a real risk of harm to the child. The important distinction is between a lawful, considered limitation and one parent simply deciding to withhold the child out of hurt or a wish to punish the other parent.
The first may be defensible. The second is not, and it exposes the withholding parent to the offence described above. If you believe contact should be restricted, the correct route is to raise it properly through an attorney and the courts, rather than taking matters into your own hands.
What Does “The Best Interests Of The Child” Actually Mean?
It means the child’s needs, safety, and wellbeing come before either parent’s preferences, weighed against the factors set out in Section 7 of the Children’s Act.
Section 7 sets out the considerations used to determine what is best for a child, and several of them speak directly to contact disputes. The court looks at the nature of the relationship between the child and each parent or caregiver, and between the child and any person seeking contact, and whether that relationship is beneficial as it stands or needs to be adjusted.
It also considers the attitude of each party towards their parental responsibilities and rights. In practical terms, this asks whether the parent seeking contact takes the role seriously, whether they are committed, and whether they show up consistently. The regular payment of maintenance can form part of this picture, because it reflects a commitment to the child’s wellbeing. Importantly, no single factor decides the matter on its own. The various elements are weighed together, and the child’s needs always come first.
Can You Deny Access If A Parent Does Not Pay Maintenance?
No. Maintenance and contact are separate legal duties, and a failure to pay maintenance does not give the other parent the right to withhold the child.
This is one of the most common and most damaging misunderstandings in family law. Many parents and caregivers, and sometimes grandparents, believe that if the other parent does not pay maintenance, they forfeit the right to see the child. That is simply not how the law works.
Under the Maintenance Act, both parents have a duty to support their child. That support covers the child’s reasonable living costs, including food, clothing, education, medical care and accommodation. The misconception arises because people treat maintenance and contact as two sides of the same bargain, so that withholding one feels like a fair response to the other being withheld.
The two are not linked in that way. A parent who fails to pay maintenance may well be in contempt of a court order. But the parent who then refuses contact in response is also in contempt of the contact order. Two wrongs do not cancel each other out. If a parent cannot or does not pay maintenance, they still cannot lawfully be refused access to their child. Seen from the child’s side, the child cannot be denied their right to see the other parent because of a dispute about money.
Can The Police Remove The Child Or Arrest The Other Parent?
No. The police will not intervene in a dispute about one parent refusing the other contact, even where a court order exists. These matters are resolved through the courts.
The second widespread misconception concerns enforcement. Parents often assume that if they hold a court order and the other parent refuses to cooperate, they can call the police, have the child handed over, and have the other parent arrested on the spot. In reality, the police will not get involved in a matter where one parent is refusing the other parent contact and access to a child.
These are civil family matters, not offences; the police will step in to resolve at the door. Relying on this belief usually leads to frustration and wasted time, and it can make an already tense situation worse. The correct route runs through the courts and a family law attorney, not through a police station.
What Legal Remedies Do You Have If You Are Denied Access?
You can instruct an attorney to bring an urgent High Court application compelling the withholding parent to explain themselves, with the court empowered to issue a warrant of arrest under Section 35 of the Children’s Act.
Section 35 deals directly with the refusal of contact and the refusal to allow a parent to exercise their parental responsibilities and rights. It provides that any person who refuses a parent, or another holder of parental responsibilities and rights under a court order, the ability to exercise those rights is guilty of an offence and liable to a fine or to imprisonment for a period not exceeding one year.
The correct approach is to instruct an attorney to bring an application to the High Court on an urgent basis. That application asks the court to summon the parent who is withholding contact to explain exactly why they are doing so. Unless that parent can show good reason for refusing contact, the court will ordinarily issue a warrant of arrest and hold it over. If the offending parent still does not comply with the court’s directive, that warrant can then be executed, with the authorisation of the court.
This staged approach is deliberate. It gives the withholding parent a clear opportunity to comply, while making the consequences of continued refusal very real.
What If There Is No Court Order Or Parenting Plan In Place?
If there is no order of court, your first step is to approach a specialist family law attorney to draft and prepare a parenting plan.
Many parents separate without ever formalising contact, which leaves them exposed when a dispute later arises. A parenting plan records how parental responsibilities and rights will be shared, including living arrangements, contact and maintenance. Putting one in place is not only about protecting your own position. It safeguards the child’s right to have both parents present and involved in their life, and it gives you an enforceable framework to fall back on if cooperation breaks down.
How BA Attorneys Can Help
Contact disputes are rarely only about logistics. They carry real emotional weight, and the law that governs them is detailed and easy to misread. This article is general information and not legal advice, and every family’s circumstances are different.
If you are being refused contact with your child, or you are unsure whether limiting contact would be lawful in your situation, it is worth speaking to a specialist before acting. Our family law team can advise you on your rights, draft a parenting plan, or bring the appropriate application to protect your relationship with your child.
Contact BA Attorneys directly for guidance on your specific situation, and read more about our child law services.
