Written by: Natasha du Preez
21 July 2024
Grandparents Rights to Grandchildren and The Children’s Act 38 of 2005
In South Africa, the rights and responsibilities of parents are primarily governed by the Children’s Act 38 of 2005 (hereinafter “the Children’s Act”). However, it is also important to understand whether grandparents and other interested parties have any rights, responsibilities, or protections concerning minor children. This article explores the provisions within the Children’s Act that may grant grandparents and other interested persons legal recourse to foster and maintain relationships with their grandchildren and other minor children in their lives.
What Are Grandparents’ Rights In Respect Of Their Minor Grandchildren Under The Children’s Act?
While parents have full rights and responsibilities over their minor children, it is undeniable that many other parties, such as grandparents, may have a vested interest in the child’s or children’s development, well-being, and fostering close familial bonds.
Grandparents, recognised as interested parties, are afforded certain rights, responsibilities, and protections under Section 23 of the Children’s Act. This Section allows grandparents to apply for care or contact with their grandchildren if they can demonstrate a meaningful interest in the child’s life.
What Does Section 23 Of The Children’s Act Entail?
Section 23 of the Children’s Act outlines provisions for care and contact with a minor child by way of a court order.
An interested party, such as the grandparent, may approach a Children’s Court or High Court under Section 23 of the Children’s Act to bring an application requesting contact with and/or care of a minor child.
The prerequisite to bringing an application in terms of Section 23 of the Children’s Act is that the applicant must be a person or party who has an interest in the development, well-being, and care of the minor child. Grandparents are certainly interested parties when it comes to the best interests of their grandchildren, and they are, by virtue thereof, entitled to relief in terms of this Section.
Under What Circumstances Can An Application Under Section 23 Be Made?
There are many instances and occasions under which an application in terms of Section 23 of the Children’s Act can be brought, such as:
- When the parents of a minor child or children cannot provideadequate care and living conditions.
- When a grandparent has been denied access to, contact with, and/or care of their minor grandchild.
- When the grandparent canafford the minor child or children a suitable place to stay, proper living conditions, or adequate financial support;
- When the grandparent wishes to reinstate previous contact arrangements with the minor child or children.
- When the grandparent seeks to reinforce future contact arrangements with the minor child or children.
What Factors Will The Court Consider When Assessing An Application Under Section 23?
The Court will have to consider various factors before issuing an order in terms of Section 23 of the Children’s Act. The most prudent and paramount factor that the Court will consider, the gravity of which far outweighs any other factor to be mentioned herein, is the child’s best interests.
As the upper guardian of all minor children, the Court has the uppermost duty to protect the sanctity of children’s best interests. In addition to this overriding factor, the Court will also take into account:
- Whether a relationship or close bond exists between the applicant and the minor child.
- The child’s age and wishes are in conjunction with their physical, mental, and emotional development.
- The degree of commitment the applicant showcased toward the minor child and the measures the applicant has taken to cultivate a close bond or relationship with the child.
- The relationship between the applicant and the child and the level of trust established in the relationship.
- The extent of the applicant’s contribution towards the minor child, including financial support and caring for or maintaining the minor child.
- Any other factor the Court may deem necessary.
- Above all, the best interests of the minor child remain paramount.
How Can I Obtain Rights To Or Contact With My Grandchildren If I Have Been Denied Access?
It is important to note that any application that deals with minor children, more specifically, with the rights and responsibilities of minor children, is overseen or conducted with the assistance of a social worker and the family advocate. It is important to note that all matters concerning minor children must be brought to the attention of and endorsed by the family advocate to succeed.
Here are some steps grandparents can take to gain contact or care rights to their grandchildren:
- Court Application: Grandparents or interested parties can apply to a High Court or Children’s Court (situated in any Magistrates Court) for an order in terms of Section 23 of the Children’s Act to obtain contact with a minor child and/or care of a minor child.
- Inclusion in a Parenting Plan: Grandparents or interested parties may also apply to the relevant Court to be included in a parenting plan between the parents of a minor child.
Does An Order In Terms Of Section 23 Of The Children’s Act Affect The Rights And Responsibilities Of The Parents?
An application or order in terms of Section 23 of the Children’s Act does not affect, diminish, or override the parents rights and responsibilities that any other person may have in respect of the child. This order merely provides grandparents and other interested parties with a legal avenue to maintain contact or care without infringing upon parental rights.
Can An Interested Party Apply For Guardianship Of A Minor Child, Or Is The Act Limited To Care And Contact?
The Children’s Act extends beyond provisions for care and contact for interested parties in respect of minor children. It also allows an interested party to apply for guardianship of a minor child under Section 24 of the Children’s Act.
For example, Section 24 of the Children’s Act enables any party with a vested interest in the well-being, development, and best interest of a minor child to apply to the Court for guardianship. The Court will take into account the same factors mentioned above, with the prime objective being upholding the best interests of the minor child.
If the child already has a guardian, the applicant will have to show cause and furnish sufficient reasons why the existing guardian cannot remain or no longer suffices as guardian and why the applicant is better suited to meet the child’s needs.
Need Legal Help in Maintaining a Relationship with Your Grandchildren? Contact Burger Huyser Attorneys Today
The Children’s Act safeguards the rights and welfare of minor children while also recognising the significant roles that grandparents and other interested parties may play in a child’s life. Through Sections 23 and 24, the Act provides avenues for these individuals to apply for care, contact, or even guardianship, fostering bonds that support the child’s well-being.
If you are a grandparent or interested party seeking legal guidance on maintaining a relationship with a minor child, contact Burger Huyser Attorneys to consult with one of our family law specialists. We are here to help protect your rights and the best interests of the minor child or children involved. Schedule an appointment with any of our skilled family lawyers in South Africa or contact us for immediate assistance on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton callÂ
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
