There are no specific provisions in South African law regarding grandparents’ rights over their grandchildren.
There is, however, a way to gain such rights under the Children’s Act 38 of 2005.
The Children’s Act 38 of 2005 Law provides for third parties that have an interest in a child’s care, well-being, or development to apply to either the High Court or the Children’s Court for an Order for Care, Contact, or Guardianship of a minor child.
The provisions of Sections 23 and 24 of the Children’s Act would therefore need to be used by grandparents who wish to establish certain rights over a grandchild.
A grandparent may, however, need to approach the appropriate Court in some cases so that an order for contact or care of the child or children is granted; alternatively, guardianship rights are granted.
It is important to note the difference between an Order for Care and one for Contact when considering such an application to court.
Children’s Act Section 1 defines “care” as providing the child with a suitable place to live, adequate living conditions, financial support, and protection from abuse and harm.
Additionally, ensuring that the best interest of the child is the paramount concern in all matters affecting the child, it safeguards the child’s rights, directs the child’s education, and ensures that the best interests of the child are guarded against.
In relation to a child, “contact” means maintaining a personal relationship with the child.
Contact would entail communicating with the child on a regular basis, whether in person or by phone.
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.
A Court will also consider the child’s need to maintain a close relationship with his or her family and extended family when determining the best interest of the child.
