GRANDPARENTS’ RIGHTS UNDER THE NEW LAW

South African law does not make specific provision for grandparents’ rights over their grandchildren. The new Children’s Act 38 of 2005 Law 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 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. This is clearly not a route that should be lightly undertaken by grandparents, as a failed application could well cause disgruntled or hostile parents to engage in destructive behaviour to further isolate the grandparent and/or alienate the children against their grandparents.

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, alternatively care of the child; alternatively guardianship rights over the child.

When considering such 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.

It is always preferable in matters involving children and/or family disputes to submit such disputes for mediation prior to the parties embarking on the litigation route. The advantages of the Mediation route essentially being that Mediation help to resolve disputes in such a way as to achieve a mutually beneficial outcome, in other words in a way that does not completely eradicate the delicate balance between the grandparent and the parent’s relationship and also that of the child and the parent and grandparent.

In cases of severe neglect or abuse of children, mediation is probably not the starting option for the matter, given that legal intervention will by necessity have to be instituted on an urgent basis to safeguard the interests of the children. However once, the legal process of protecting the children has been instituted, a family mediation process could be set up to enable the parties to talk about how the various parties’ rights of contact and care can be regulated going forward.

All other matters involving the family and children and grandparents should however first commence with some attempt at mediation prior to the matter having to go the legal route. The timing of initiation of family mediation is a critical consideration and due to the need for a delicate balancing of all the parties’ rights and interests, only a specialized holistically orientated mediation approach should be sought with a mediator holding the necessary skill and expertise with matters such as these.