The Rights of Grandparents over Grandchildren
South African law does not make specific provision for grandparents’ rights over their grandchildren. Section 23 of the Children’s Act 38 of 2005 allows any person having an interest in the care, well-being or development of a child to apply to an appropriate court for rights of contact and care, subject to the best interests of the child.
Section 24 deals with the assignment of guardianship. Before the Children's Act came into operation grandparents had no inherent rights or responsibilities. It was only a high court, as the upper guardian of a child, that could bestow access, custody or guardianship on a grandparent. And of course that too would be done only if it were in the best interests of a child – an assessment that would have been made having regard to the rights of the biological parents does however provide for third parties who have an interest in the care, well-being, or development of a child 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 desiring to establish particular rights over a grandchild should accordingly need to utilize the provisions provided by Section 23 and 24 of the Children’s Act for this purpose. This is obviously not a route that should be lightly undertaken by grandparents, as a unsuccessful application to court could well result in disgruntled or hostile parents to enlist in destructive behaviour to even more separate the grandparent and/or alienate the children against their grandparents.
When considering an application the Court is required in terms of Section 23 and 24 of the Children’s Act to have regard to the following:
The Supreme Court of Appeal awarded certain parental rights to grandparents in the case of S v J (695/10) [2010] ZASCA 139; [2011] 2 All SA 299 (SCA) ; 2011 (3) SA 126 (SCA) (19 November 2010).
The facts were briefly as follows. The child was born on 23 January 2006. Her father, Mr S, was the appellant in this matter. Her mother, Ms R, died two months after the child's birth. She suffered from a congenital heart defect and was operated upon on the same day that the child was born in an attempt to remedy the defect. Regrettably she did not recover. S and R were not married at the time of the child's birth. But they were living together at the time and intended to marry. The first respondent, Mrs J, was the mother of R, and thus the maternal grandmother of the child. She was married to the second respondent, Mr J, but the latter was not R’s father. The parties had been engaged, virtually since the child's birth, in a battle for the custody and guardianship of the child.
The Court made the following order on appeal:
(a) That the father was the holder of full parental responsibilities and rights in terms of s 18 of the Children’s Act 38 of 2005.
(b) That the child should reside permanently with the father.
(c) The grandparents were granted contact with the child on a regular basis.
Section 24 deals with the assignment of guardianship. Before the Children's Act came into operation grandparents had no inherent rights or responsibilities. It was only a high court, as the upper guardian of a child, that could bestow access, custody or guardianship on a grandparent. And of course that too would be done only if it were in the best interests of a child – an assessment that would have been made having regard to the rights of the biological parents does however provide for third parties who have an interest in the care, well-being, or development of a child 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 desiring to establish particular rights over a grandchild should accordingly need to utilize the provisions provided by Section 23 and 24 of the Children’s Act for this purpose. This is obviously not a route that should be lightly undertaken by grandparents, as a unsuccessful application to court could well result in disgruntled or hostile parents to enlist in destructive behaviour to even more separate the grandparent and/or alienate the children against their grandparents.
When considering an application the Court is required in terms of Section 23 and 24 of the Children’s Act to have regard to the following:
- The best interests of the minor child/children
- The relationship between the Applicant (grandparent) and the minor child/children and any other relevant person and the child/children
- The degree of commitment that the grandparent has shown towards the child/children
- The extent to which the grandparent has contributed towards the child/children’s financial / maintenance requirements
- Any other factor which in the opinion of the Court ought to be taken into consideration.
- 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.
The Supreme Court of Appeal awarded certain parental rights to grandparents in the case of S v J (695/10) [2010] ZASCA 139; [2011] 2 All SA 299 (SCA) ; 2011 (3) SA 126 (SCA) (19 November 2010).
The facts were briefly as follows. The child was born on 23 January 2006. Her father, Mr S, was the appellant in this matter. Her mother, Ms R, died two months after the child's birth. She suffered from a congenital heart defect and was operated upon on the same day that the child was born in an attempt to remedy the defect. Regrettably she did not recover. S and R were not married at the time of the child's birth. But they were living together at the time and intended to marry. The first respondent, Mrs J, was the mother of R, and thus the maternal grandmother of the child. She was married to the second respondent, Mr J, but the latter was not R’s father. The parties had been engaged, virtually since the child's birth, in a battle for the custody and guardianship of the child.
The Court made the following order on appeal:
(a) That the father was the holder of full parental responsibilities and rights in terms of s 18 of the Children’s Act 38 of 2005.
(b) That the child should reside permanently with the father.
(c) The grandparents were granted contact with the child on a regular basis.