THE GENERATIONS CONNECTION: NAVIGATING GRANDPARENTS CONTACT RIGHTS WITH THEIR GRANDCHILDREN

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 following 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 eldest grandchild was born to support her daughter and grandson.  

In May of 2022, Ms N’s daughter passed away and Ms N wasted no time in travelling to the deceased’s home in Makhanda to plan the funeral and take care of the young boys. For six weeks, Ms N stayed in Makhanda with the children, before returning to her home in Herschel whereafter the children remained with Mr Y. The children were said to have a stable home and family life and be well cared for by Mr Y.  

Shortly before returning home, Ms N requested that the children visit her in Herschel for a week during the upcoming school holidays, to which Mr Y agreed. However, in August of 2022 Mr Y wrote to Ms N stating that it would not be possible as he had decided to cut all ties with his late wife’s family for the well-being of his children. 

Aggrieved by Mr Y’s decision, 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 however entitled to rely on the legislative remedies available to all persons 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 all 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 necessary 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. This section lists factors to be taken into account when determining whether contact and care should be granted, with the foremost consideration being the best interests of the child.  

Section 7 of the Act deals with the best interests of the child and lists several factors to be taken into consideration when applying the best interests of the child principle. One such factor 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 certainly weighs in favour of any grandparent’s application as it is usually in the best interest of a child to maintain a relationship with their grandparent(s). 

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 she was misleading the court and that there was no relationship between her on the one hand and her daughter and the children on the other. He argued that the contact sought would not be in the best interests of the children due to the animosity that existed between his late wife and Ms N in particular. 

However, Mr Y failed to provide any evidence of the alleged animosity between his late wife and Ms N, 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. 

Contact sought by grandmother were in the children’s best interests 

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. It was reported that Ms N had their best interests at heart, had never subjected them to any animosity or violence and was mentally, physically and financially capable of caring for her grandchildren. 

The children’s court ultimately ordered that the grandmother be allowed to contact the children telephonically one a week, be allowed to visit the children at their home in Makhanda once a month and be allowed to 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, arguing that the court a quo incorrectly interpreted and applied the relevant legislation and that contact with Ms N would not be in the best interests of the children.  

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 only where there is a very strong ground compelling the court to make such an order. 

However, 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 and conclusion 

The high court ultimately held that the contact awarded by the children’s court was indeed in the best interests of the children. In doing so, it considered the reports of the social workers (who concluded that the grandmother only has the best interests of her grandchildren at heart) and the fact that there is no evidence to suggest that the Ms N’s deceased daughter had ill feelings towards her or that the children had been caught up in the dispute. 

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 in order to avoid future disputes between the parties – he thus ordered that the envisaged contact must take place at particular times and dates, and that the first two visits that are to take place at the grandmother’s home in Herschel be supervised by a social worker to assist the children with the transition into having contact with Ms N again (seeing as Mr Y had kept the children from seeing Ms N for the two years in which the litigation was ongoing). 

Workable solution to the animosity  

Finally, Eksteen J urged the litigants to attempt to find a workable solution to the animosity between them as it cannot be in the best interests of the children for the parties to be engaged in protracted litigation, which is expensive and creates unnecessary tension. 

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.