Introduction
The role of grandparents in a child’s life is often profound, providing emotional stability, cultural continuity, and extended family support. However, following divorce, separation, death of a parent, or family conflict, grandparents may find their relationship with a grandchild abruptly restricted or terminated. South African law does not automatically confer rights of access on grandparents, yet it recognises that, in appropriate circumstances, continued contact with grandparents may serve the best interests of the child.
This article examines the legal basis, limitations, and procedural mechanisms through which grandparents may seek access to grandchildren, as well as the approach adopted by South African courts in balancing parental authority with a child’s broader familial relationships.
The Paramountcy of the Child’s Best Interests
Section 28(2) of the Constitution of the Republic of South Africa and Section 9 of the Children’s Act 38 of 2005 provide that a child’s best interests are paramount in every matter concerning the child.
Accordingly, grandparents’ access is not framed as a right belonging to the grandparent, but rather as a question of whether such contact:
- Promotes the child’s emotional, psychological, and social well-being
- Preserves meaningful family relationships
- Supports the child’s sense of identity and continuity
The court’s enquiry is child-centred, not adult-entitlement driven.
Legal Standing of Grandparents Under the Children’s Act
1. Right to Apply for Contact
Section 23 of the Children’s Act permits any person having an interest in the care, well-being, or development of a child to apply to the High Court, a regional court, or a children’s court for an order granting contact or care.
Grandparents fall squarely within this category, provided they can demonstrate:
- A genuine and existing relationship with the child; and
- That continued contact is in the child’s best interests.
There is no automatic entitlement; standing must be established on the facts of each case.
2. Nature of “Contact”
Contact may include:
- Physical visits
- Telephonic or electronic communication
- Participation in significant life events
The extent and frequency of contact will depend on the child’s circumstances and the broader family dynamics.
When Do Grandparents Commonly Seek Access?
Applications for access most frequently arise in circumstances such as:
- Divorce or separation of the child’s parents
- Death of one parent
- High-conflict family disputes
- Allegations of parental alienation
- Situations where grandparents previously played a caregiving role
In such cases, courts consider whether denying contact would cause emotional harm or disrupt established bonds.
Factors Considered by the Court
In determining whether to grant access, courts typically assess:
- The nature and quality of the existing relationship
- The child’s age, maturity, and expressed views (where appropriate)
- The impact of contact on the child’s routine and stability
- The reasons advanced by the parent opposing access
- The ability of grandparents to respect parental authority and boundaries
Where contact is likely to expose the child to conflict or undermine parental authority, courts may limit or structure access carefully.
Parental Authority Versus Extended Family Relationships
South African law recognises that parents generally hold primary authority over decisions concerning their children. Courts are therefore cautious not to unduly interfere with parental autonomy.
However, parental authority is not absolute. Where a parent unreasonably denies contact and such denial is shown to be contrary to the child’s best interests, the court may intervene to restore appropriate familial relationships.
The Role of Mediation and the Family Advocate
Before litigation, grandparents are often encouraged to pursue:
- Mediation
- Intervention by social workers or psychologists
In contested matters involving access, the Office of the Family Advocate may be requested to investigate and report on what arrangement best serves the child’s interests. Courts attach significant weight to such reports.
Procedural Considerations
An application by grandparents typically involves:
- A founding affidavit setting out the relationship with the child
- Evidence of prior involvement and emotional bond
- A clear proposal for contact arrangements
- Demonstration of a child-focused approach
Litigation that appears adversarial or driven by personal grievances is unlikely to succeed.
Limitations and Risks
Grandparents must be mindful that:
- Access will not be granted where it destabilises the child
- Courts will not permit grandparents to become surrogate parents without justification
- Conflict between grandparents and parents may weigh against access
Each case is fact-specific, and outcomes depend heavily on evidence and conduct.
Enforcement and Variation of Access Orders
Once access is granted by court order:
- Non-compliance may be addressed through enforcement proceedings
- Orders may be varied if circumstances materially change
- Continued access remains subject to the child’s evolving needs
Courts retain ongoing supervisory jurisdiction in matters affecting children.
Conclusion
While South African law does not recognise an automatic right of access for grandparents, it provides a clear legal pathway for grandparents to seek and obtain contact where such contact serves the best interests of the child. The guiding principle remains the child’s welfare, not familial entitlement.
Courts approach these matters with sensitivity, recognizing the value of extended family relationships while safeguarding parental authority and the child’s stability. Grandparents who approach access disputes with restraint, cooperation, and a genuine focus on the child are most likely to find the law receptive to their claims.