Grandparents play an important role in children’s lives but it is the chidren’s rights that must be put first. Photo: Andrew Lichtenstein/Corbis/Getty Images
It has been said that “grandparents are as necessary to a child’s growth as vitamins”. Many households rely on grandparents to provide invaluable support in raising and caring for their children. But what happens when a grandparent is denied contact with their grandchildren, and what can they do to fight for their right to be part of their grandchild’s life?
First step: Children’s Court
The case of Y.C.M v N.D.N initially came before the children’s court after a family feud between the grandmother (Ms N) and the father of two young children (Mr Y) regarding the grandmother’s contact with her grandchildren.
According to Ms N’s testimony in the children’s court, she had a good relationship with her daughter and the mother of the two young children that are the subject of the application. Although Ms N worked in the United Kingdom as a nurse, she travelled back to South Africa at least twice a year to spend time with her daughter and grandchildren. She retired in December 2016 and returned to Herschel, South Africa, shortly after the oldest grandchild was born to support her daughter and grandson.
In May 2022, Ms N’s daughter died and Ms N travelled to her home in Makhanda to plan the funeral and take care of the boys. She stayed there for six weeks with the grandchildren, before returning to her home. The children were said to have a stable home and family life and be well cared for by Mr Y.
Ms N asked that the children visit her in Herschel for a week during the school holidays, to which Mr Y agreed. But, in August 2022 Mr Y wrote to Ms N saying he had decided to cut all ties with his late wife’s family for the well-being of his children.
Ms N approached the children’s court to seek an order granting her contact with her grandchildren.
No automatic right of contact to grandparents
While the role grandparents often play in a child’s life is invaluable, there is no automatic right of contact awarded to grandparents, as has been confirmed by the appeal court. Should a grandparent’s contact with their grandchild be frustrated, they are entitled to rely on the legislative remedies available to all people interested in the care and wellbeing of a particular child by approaching the high court as the upper guardian of all minor children.
Section 28(1)(b) of the Constitution equips children with the right to family care or parental care, or to appropriate alternative care when removed from the family environment. The Constitution places adequate weight on the care a child may receive from their parents but makes provision for instances where it is in the best interests of the child to receive care outside of the immediate family environment.
Contact must be in best interests of the child
Section 23 of the Children’s Act affords any person who has an interest in the care, well-being or development of a child the authority to seek a court order granting them contact with or care of the child. It is in terms of this section that Ms N sought an order for contact with her grandchildren in the children’s court.
Section 7 of the Act deals with the best interests of the child and lists several factors to be taken into consideration. One is the need for the child to remain in the care of his parent, family and extended family and to maintain a connection with his family, extended family, culture or tradition. This factor weighs in favour of any grandparent’s application.
It is on this basis that Ms N approached the children’s court to reinstate her contact with her grandsons.
Children’s court decision
Mr Y opposed Ms N’s application in the children’s court, alleging that there was no relationship between her and her daughter and the children. He argued that the contact sought would not be in the best interests of the children because of the animosity that had existed between his late wife and Ms N.
But Mr Y failed to provide any evidence of the alleged animosity and, if it existed, how it affected the children. Nevertheless, he argued that if the court finds that Ms should be allowed contact, such contact should be supervised and take place in a controlled environment such as a police station.
The children’s court directed the department of social development to conduct an investigation as to the circumstances of the children, and a legal aid representative was appointed to represent their interests. Both social workers appointed by the department reported that the contact sought by Ms N would be in the best interests of the children, with the legal aid representative supporting this finding.
The children’s court ordered that the grandmother be allowed to contact the children telephonically one a week, visit the children at their home in Makhanda once a month and have the children visit her at her home in Herschel for at least one week during both long school holidays.
Mr Y approached the high court to appeal the children’s court decision.
Appeal to the high court
On appeal, Mr Y relied on the case of S v L where it was held that the court may not interfere with a decision made by a guardian of a child merely because it disagrees with that decision and that the power of the court as the upper guardian of minor children is not unlimited. Mr Y also referred in his argument to the case of Calitz v Calitz, the effect of which was that a father’s right of access to his legitimate child can only be limited in exceptional circumstances and an unmarried father would only be granted access to his illegitimate child where there is a strong ground compelling the court to make such an order.
But our courts have developed their approach to questions of contact, and it has since been held that no parent’s right will have any substance or meaning if such access would be contrary to the child’s best interests. Further, since the promulgation of the Constitution and the Children’s Act 38 of 2005, all questions of contact and care must now be determined in terms of these Acts and the child’s best interests must be the paramount consideration.
Outcome
The high court held that the contact awarded by the children’s court was indeed in the best interests of the children. It was also held that there is no evidence to suggest that contact between Ms N and the children should occur in a “safe space” such as a police station — in fact, Eksteen J found that for the contact to occur in such an environment would be inappropriate for psychological well-being of the children.
Eksteen J held that the order granting Ms N contact with the children must be more structured to avoid future disputes between the parties. He ordered that the contact must take place at particular times and dates, and that the first two visits at the grandmother’s home be supervised by a social worker to assist the children with the transition into having contact with Ms N again, because Mr Y had kept the children from seeing for the two years in which the litigation was ongoing.
Finally, Eksteen J urged the litigants to attempt to find a workable solution to the animosity between them because it could be in the best interests of the children.
This judgment reaffirms that the rights of parents are not absolute, and that courts must always take a child-centred approach when faced with care and contact disputes and place the best interests of the child above a parent’s selfish desires.
Bronwyn Samuel is an associate and Kaamilah Paulse a director at Herold Gie Attorneys.
