​​​A GRANDPARENT’S RIGHT TO ACCESS AND DUTY TO SUPPORT

SUMMARY

The Children’s Act 38 of 2005 (hereinafter the Children’s Act) governs the laws, as they relate to the care, contact and protection of children.[1] The rights of access for grandparents and third parties are governed by Sections 23 and 24 of the Children’s Act. Parents of children born in wedlock enjoy automatic Parental Responsibilities and Rights and fathers of children born out of wedlock, acquire automatic parental authority, once they have satisfied the requirements listed in Section 21(1) of the Children’s Act. In terms of legislation and decisions held by various courts, of competent jurisdiction, grandparents do not enjoy special inherent rights of access to their grandchildren.   

The common law recognises a hierarchical responsibility of support.[2] This, in essence, means that when a parent is or parents are unable to cover their child’s support, the duty to support lies with the grandparents and they can be held liable in this regard.

BACKGROUND

Prior to the adoption of the Children’s Act 38 of 2005, automatic Parental Responsibility and Rights were not awarded to fathers of children born out of wedlock and grandparents had no inherent rights and responsibilities.[3] The rights of fathers of children born out of wedlock were governed by the Natural Fathers of Children born out of Wedlock Act 86 of 1997, which made provision for the possibility of access to and custody and guardianship of children born out of wedlock by their natural fathers, further, it set the limitations for certain claims.[4] Grandparents seeking access, custody or guardianship, would have to apply to the High Court, which would assess the application in light of the child’s best interests, as well as the rights of the biological parents.   

The Children’s Act was partially adopted in July 2007 and came into full operation on 1 April 2010. In terms of Section 21 of the new act, unmarried fathers could now acquire full Parental Responsibility and Rights to their minor children, on condition that they satisfy the terms set out in Section 21(1) of the Children’s Act.[5] Unmarried fathers will acquire these rights, regardless of whether the child(ren) were born before the adoption of the act. The right of third parties or non-parents, who have an interest in the care, well-being or development of a child, is now entrenched in Sections 23 and 24 of the aforementioned Act. In terms of these Sections any third party may apply to a court, with competent jurisdiction, for an order granting the third party contact with the child or care of the child. [6]  

The courts, however, have remained reluctant to interfere with parental authority, as this may have a negative effect on the family dynamics,[7] by granting third parties, grandparents in particular, Parental Responsibilities and Rights, especially in the absence of parental unfitness or consent.[8]

All children, in terms of Section 28(1)(b) of the Constitution of the Republic of South Africa, 1996 (hereinafter the Constitution), have a right to family care or parental care.[9] The entrenchment of this right to family care and its placement alludes to the importance of family to a child’s welfare.

Although the enactment of the Children’s Act has placed unmarried fathers in a more favourable position than unmarried fathers pre-2007. The Act, however, has made no significant improvement to the rights of grandparents. Grandparents have always had the right to approach the court to apply for an order granting access to their grandchildren, but this is a right granted to any interested third party. The familial bond of grandparents does not grant them any special rights of access to their grandchildren.

In FS v JJ and Another 2011(3) SA 126 (SCA) the Supreme Court of Appeal had to determine, amongst other things, the best interest of the child, the rights of unmarried fathers and the extent of grandparent’s rights in respect of children.[10] The facts of this case were as follows: A child (C) was born to a couple who were living together, at the time and intended to get married. Shortly after C was born her mother died and she was removed from her father’s care by her maternal grandparents. C’s father was the Appellant in this appeal (S) and her grandparents were the First and Second Respondents (the Js).

In its judgement the court held that, as from 1 July 2007, Section 21 of the Children’s Act applied and this meant that the Appellant acquired automatic Parental Responsibilities and Rights. S had lived with C’s mother when C was born, with the intention of marrying her. Section 21(1)(a) of the Children’s Act had relevance in this regard.[11]     

The court further held that a grandparent’s Responsibilities and Rights were now governed by Sections 23 and 24 of the Children’s Act, which governs non-parental rights to care and guardianship.[12]

In conclusion, the court held that it was in C’s best interests to place her in the care of her father, the Appellant, as this was also recommended by the experts heard in the matter and the appeal succeeded.[13]

In the matter of Townsend-Turner and Another v Morrow 2004 (2) SA (32) (C) the Applicants sought an order granting them access to the First Applicant’s grandson. The Second Applicant was the First Applicant’s former husband and still lived with her. The minor child (G) was born to his married parents, but his mother had subsequently passed away. The Respondent entered into a new relationship and this caused strain on the relationship between the Respondent and the Applicants, resulting in the Respondent limiting and refusing the Applicant’s access to G.

The court, in delivering its judgement, held that, in terms of the common law, only the parents of a child born of a marriage between them, had Rights of Access to the child.[14] It further held that the Supreme Court, though it was the upper guardian of minor children, did not have the power to interfere with decisions of the guardian of a child, simply because the court did not agree with the decision. The decision of who a child could have contact with, is a decision vested in the persons with parental authority.[15]

The court held that any third party had a common law right to approach the court to have rights of access granted, if the right was in the best interests of the child.[16]

In the light of the conflict between the parties, the court was not of the opinion that granting the Applicant’s access to G was in his best interests. The court held that enforced visitation was not desirable in this matter and that a relationship between G and his grandparents had to develop spontaneously, once the conflict between the adults had been resolved. The application was accordingly dismissed.[17]

In an article, No Special Access Rights for Grandparents? An evaluation of our law after Townsend-Turner and Another v Morrow, Zaal[18] expresses his disappointment of the above judgement in that he believes that Knoll J did not consider a child’s right to family care and the parameters of a family environment. He, further, makes reference to Bennett’s Customary Law in South Africa (2004), in which he states that in indigenous African cultures children tend to be nurtured and raised by extended family members, rather than merely by their parents.[19]        

The reluctance of the courts to grant access of a child to a third party, against the will of the parent(s), is evident from the two cases studied. In Kleingeld v Heunis and Another 2007 (5) SA 559 (T) the court held that grandparents have locus standi to apply for access to a minor grandchild, but this is not an inherent right. A court may grant special access where special grounds indicate that it is in the best interests of the child, but courts should not readily substitute themselves as the parents of the child, especially where there is no indication that the parents are not acting in the best interests of the child.[20]

The awarding of automatic Parental Responsibilities and Rights has a leg which has not yet been touched on: responsibilities. These responsibilities include the care of the child, maintaining contact with the child, acting as the child’s guardian and contributing to the child’s maintenance.[21]

As a parent there is an instant parental obligation to maintain your child(ren), this is a common law duty which starts at birth.[22] This duty has been included in Section 15(3)(a) of the Maintenance Act 99 of 1998, which provides the following:

(3)(a) Without derogating from the law relating to the support of children, the maintenance court shall, in determining the amount to be paid as maintenance in respect of a child, take into consideration –

            (i) that the duty of supporting a child is an obligation which the parents     have incurred jointly;

(ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and

(iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.[23]

This common law duty to support is based on the concept of family ties involving responsibilities, which arises by reason of respect and the affection of a blood relationship, as well as natural reasons.[24]

When a parent or both parents of a child pass away and the estate is inadequate to cover the child’s support,[25] or if neither of the parents are able to support the child, the duty to support lies with the child’s grandparents.[26]

In the matter of Motan v Joosub 1930 AD 61 the court held that the paternal grandparents of a child could not be held liable for the maintenance in respect of the child born to their unmarried son.[27] This ruling was, however, declared unconstitutional in Petersen v Maintenance Officer, Simon’s Town Maintenance Court 2004 2 SA 56 (C), as it discriminated towards children born out of wedlock.[28] The decision in the Petersen case is not binding on all courts, however, the court held that imposing this duty to support on the paternal grandparents would be an incremental step in the development of common law.[29]

CONCLUSION

The duty to support imposed on grandparents, in the event of the parents not being able to cover the child’s support, is a duty grandparents are burdened with because of their blood relationship. However, the blood relations of a grandparent do not automatically provide them with an inherent or special right of access to their grandchildren. Grandparents who wish to gain the right of access to their grandchildren can utilise the provisions of Section 23 and Section 24 of the Children’s Act to apply to the High Court or the Children’s Court for the relief sought. This application, however, and in light of the court’s reluctance, should not be taken lightly.

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