In our modern world filled with married, unmarried, separated and/or divorced parents much has been said about the relationship between parents and children, and the exercise of parental rights and responsibilities that may stem from such a relationship. What is not often discussed is the relationship between grandparents and children and whether the grandparents are entitled to exercise any rights in respect of their grandchild.
The reality is that South African law does not automatically afford grandparents any rights in respect of their grandchildren and while in most cases the advent of becoming a grandparent is joyful and positive experience, in some cases the experience is bitter-sweet.
Any conflict between parents and grandparents usually results in grandparents having no contact with their grandchildren. This is often the case in circumstances where parents separate and/or divorce, and the resultant relationship between the grandparents and the parents, especially the parent who has primary care, greatly influences whether a grandparent has contact with a grandchild.
This does not mean that grandparents must resign themselves to not having a relationship with their grandchildren.
The Children’s Act, 38 of 2005, provides that any person having an interest in the care, wellbeing or development of a child may apply to an appropriate court for an order:
- In terms of Section 23 of the Act, granting them the right to have contact with and/or to care for a child;
- In terms of Section 24 of the Act, granting them the guardianship of the child.
In considering applications in terms of Sections 23/24 a court will take the following into account:
- The best interests of the child concerned;
- The relationship between the person making the application and the child;
- The degree of commitment the person making the application has shown towards the child (only specified for Section 23);
- The extent to which the person making the application has contributed towards the expenses of the child’s birth and/or maintenance (only specified for Section 23); and
- Any other factor, which in the opinion of the court, should be taken into account.
In considering whether or not to proceed with an application in terms of Section 23/24 it is important to consider the following:
- To avoid unnecessary litigation, costs and acrimony attempts must be made to mediate any issues before commencing any litigation, except in cases where a child is being abused and/or neglected;
- The outcome of court processes in respect of children can never be guaranteed and should any application fail, it may only fuel further conflict and isolation;
- If an order for rights of contact/care is granted in terms of Section 23, this does not affect any parental rights and responsibilities any other person may have; and
- If an application is made for guardianship in terms of Section 24, it must be demonstrated why any current guardian is not suitable.
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From its humble beginnings in Delvers Square, Kerk Street Johannesburg McLarens has grown into a boutique Law firm with five Attorneys, one Candidate and four support staff.
McLarens offers expert services in Commercial Law, Company Law, Property Law, Employment Law, Wills Trusts deceased estates and Family Law.
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We look forward to being of service for many years to come.
Section 28(1)(c) of the Constitution provides that every child has the right to basic nutrition, shelter, basic health care services and social services. In addition our common law provides that both parents have a legal duty to support their children according to their means.
A large majority of the public considers the legal obligation of maintenance to only be the responsibility of the parents of the child and that no one else can have the legal obligation placed upon them. This is incorrect.
While the legal obligation to maintain a child primarily rests on the parents of the child in question it is accepted that other relatives of the child have to support the child in circumstances where a parent is deceased or unable to support/maintain the child.
In circumstances where a parent is deceased or unable to support/maintain their children the general rule is that the support/maintenance must always be sought from the nearest relative to the child, and only if that support/maintenance is not forthcoming from that relative, then it can be sought from more remote relatives.
As a result of the accepted common law principles, our courts have held that there is a reciprocal duty of support between grandparents and their grandchildren (Barnard v Miller 1963 (4) SA 426 (C)), and that if parents are not able to support their children, the duty of support falls on paternal and maternal grandparents of the child (Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E)).
Accordingly in South Africa there can be no doubt that both maternal and paternal grandparents can be required to support/maintain their grandchildren, but it must always be remembered that this can only happen in circumstances where a parent is deceased or unable to maintain their child themselves. In this regard it has been held by some of our courts that grandparents can defend maintenance claims against them by insisting that the claims first be pursued against a parent.
“Subsequent to his Facebook remarks which were construed as being racially offensive, Khumalo was duly suspended from the employ of the Gauteng Department of Sport, Arts, Culture and Recreation and charged for serious misconduct for having “conducted himself in an improper, disgraceful and unacceptable manner”.
Velaphi Khumalo – Politics Web Report
It is trite law that discipline must be consistently applied and as such within the Gauteng Department of Sport, Arts, Culture and Recreation such conduct if coupled with a sense of remorse may only merit a suspension and final written warning.
Maybe there is some balance in the decision, maybe Corporate South Africa has overreacted on these issues. On balance and upon reflection maybe we have regained our sensibilities on this difficult issue.