The Legal Framework: The Child’s Best Interests as the Paramount Consideration

Introduction

Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that “a child’s best interests are of paramount importance in every matter concerning the child.”

This constitutional principle is given practical effect through the Children’s Act, which regulates parental responsibilities and rights, including care, contact, guardianship, and maintenance. The law recognises explicitly contact as a parental responsibility and right, encompassing the right to maintain a personal relationship with the child and to communicate regularly with them.

The law prioritises the child’s best interests, not parental entitlement. Consequently, where access is refused, the court must determine whether the refusal is justified or whether it constitutes a violation of both the non-resident parent’s and the child’s rights to family life and emotional connection.

When Refusal of Access May Be Justified

The law recognises that there are circumstances where restricting or refusing contact may be appropriate, particularly when the child’s safety or emotional well-being is at risk.

Examples include:

1. Allegations of abuse or neglect: Where there is evidence or suspicion of physical, sexual, or emotional abuse, the court may suspend contact pending investigation.
2. Substance abuse or instability: If a parent’s lifestyle poses a risk to the child, access may be supervised or temporarily restricted.
3. Exposure to conflict: Constant exposure to parental conflict can be detrimental to a child’s emotional health. Courts may limit contact to shield the child from ongoing hostility.

In such cases, refusal must not be unilateral. The proper procedure is to seek a variation or suspension of the contact order through the court, often supported by a social worker’s or psychologist’s recommendation.

Unilateral Refusal: Legal and Practical Consequences

Despite clear legal principles, many primary caregivers take matters into their own hands, denying access without a court order, this is not only unlawful but potentially damaging to the child’s sense of stability. The courts have consistently held that unilateral refusal of contact, absent a legitimate safety concern, violates both the non-resident parent’s rights and the child’s right to parental care and contact. Practically, a parent who is denied contact may approach the Children’s Court to enforce or vary an existing order. The court may order that contact resume immediately, direct mediation or parenting coordination; or in severe cases, vary primary care where one parent persistently frustrates access.

The Role of Parenting Plans and Mediation

The Children’s Act promotes mediation and parenting plans as mechanisms to resolve disputes outside of court. It encourages parents to agree on how they will exercise their respective rights and responsibilities. A properly drafted parenting plan can pre-empt many of the common access disputes by clearly setting out contact schedules, communication arrangements, protocols for holidays and special occasions and dispute resolution mechanisms (e.g., referral to a parenting coordinator).

The Emotional Dimension: Children as Silent Victims

While legal remedies are essential, the real cost of access disputes is often borne by the child. Repeated exposure to conflict, shifting loyalties, or being used as a bargaining tool can cause deep psychological harm. Studies have shown that children thrive when they have stable, consistent relationships with both parents, even after separation. Professionals in the field must therefore adopt a child-centred and trauma-informed approach, recognising that the enforcement of contact is not merely a procedural matter,  it’s a matter of emotional justice.

Conclusion

The refusal of access to minor children is rarely about law alone, it’s about fear, hurt, and power dynamics that unfold in deeply personal contexts. Yet the legal framework provides a clear message: children have the right to maintain relationships with both parents, unless such contact is demonstrably contrary to their best interests.

Practitioners have a duty to guide clients toward lawful, constructive, and child-focused solutions, through mediation, parenting plans, and, where necessary, court intervention. Ultimately, the goal is not to “win” a dispute, but to preserve what matters most: a child’s sense of love, security, and belonging, even in the aftermath of separation.

For personalised advice tailored to your needs, consult an attorney at SchoemanLaw.