It is a sad reality that family disputes sometimes result in grandparents losing contact with their grandchildren. The breakdown of the parents’ relationship often spills over into the broader family, resulting in some grandparents being denied contact with their grandchildren.  

 In simple terms, section 23 of the Children’s Act, 38 of 2005, gives grandparents a possible legal route to ask a court for contact with or care of a grandchild. The Children’s Act allows the court to consider whether ongoing contact would be in the child’s best interests, considering the relationship, the grandparent’s involvement, and the child’s wellbeing. 

The Importance of the Child’s Best Interests 

 In every matter involving a child, the child’s best interests are the most important consideration. This means the court will not decide the matter solely on what the parents, grandparents, or other adults want. The main question will always be what is best for the child’s safety, stability, emotional well-being, and overall development. 

Do Grandparents Have Automatic Rights? 

 Grandparents do not automatically have legal rights to contact with, or care of, their grandchildren simply because they are grandparents. Unlike parents, grandparents must usually ask the court for permission to be involved in a child’s life where contact has been refused. The court will then consider whether the proposed contact or care arrangement is in the child’s best interests. 

When Can Grandparents Apply for Contact? 

 Grandparents may consider applying for contact when they have already played a meaningful role in the child’s life, for example, by helping with daily care, providing emotional support, or maintaining a close bond with the child. An application may also be appropriate where ongoing involvement by the grandparent would provide stability, continuity, or support that benefits the child. The court will not focus solely on the adults’ wishes, but on whether contact would serve the child’s best interests. 

Which Court Has Jurisdiction? 

A grandparent can usually bring this type of application to the Children’s Court in the area where the child or children stay. In some cases, it may need to be brought in the High Court or the divorce court, especially if there is already a divorce or another court case involving the child. The right court will depend on the facts, the type of order sought, and whether another court is already involved. 

What Factors Will a Court Consider? 

When deciding whether a grandparent should have contact with a grandchild, the court will consider their existing relationship. If the grandparent has been actively involved in the child’s life, for example, by helping with care, school routines, emotional support, or regular visits, this may support the application. The court will want to understand whether the relationship is meaningful and whether continuing that relationship would be good for the child. 

The child’s age, maturity, and wishes may also be relevant. An older child, or one mature enough to express a view, may be allowed to say how they feel about seeing the grandparent. The child does not make the final decision, but the court may take the child’s views into account where appropriate. 

The court will also consider why contact has been stopped or restricted. Sometimes contact is refused because of family conflict between adults, and sometimes there may be genuine concerns about the child’s safety, routine, or emotional well-being. The court will carefully consider the reasons and decide whether those concerns are valid and whether contact can take place safely and appropriately. 

Most importantly, the court will consider how contact is likely to affect the child’s well-being. If contact would give the child stability, love, support, and a continued connection with family, this may weigh in favour of contact. If contact is likely to cause confusion, distress, conflict, or harm, the court may limit contact, attach conditions to it, or refuse the application. 

 Can the Matter Be Resolved Without Court Proceedings? 

 Where possible, families should first try to resolve contact disputes through discussion, mediation, or a negotiated arrangement before going to court. Mediation can help the adults focus on the child’s needs rather than the conflict between them. In some cases, the parents and grandparents may be able to agree on practical arrangements, such as when visits will take place, how often contact will happen, whether telephone or video calls are appropriate, and how special occasions will be handled. If an agreement is reached, it may be recorded in writing, and where appropriate, included in a parenting plan or made an order of court so that everyone understands their responsibilities. 

 Conclusion 

Every family situation is unique, and the right approach will depend on the child’s circumstances, the existing relationship with the grandparent, and the reasons for refusing contact. Grandparents who are being denied contact should obtain legal advice before taking further steps, so that they understand their options and can approach the matter in a way that protects the child’s best interests. 

Contact an expert at SchoemanLaw Inc in Cape Town or Paarl for assistance with your legal needs