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It is important to note the difference between an order for care and one for contact.

Quite a few years ago; and before the new Children's Act came into being; I was involved in a matter in the High Court in Cape Town where a grandmother wanted to exercise rights of access to her two grandchildren but because of an argument with her daughter, the mother of the children, she was being denied access to her grandchildren, Quite rightly she was not prepared to let that happen and took her daughter to the High Court in an Application to get a court order allowing her access to her grandchildren and she got such an order; which was unusual at the time for the reasons given below.

I remembered this case when I got the following inquiry in this last week which is in a similar vein and the facts were strangely similar.

This was last week’s inquiry:

 “I practically raised my grandchildren for the first few years of their lives and am very close to them. Unfortunately, my son recently passed away and now their mother refuses to allow me to see them. Is there anything that I can do in these circumstances?”

As a point of departure, it is important to note that our South African law, as a rule, does not make specific provision for a grandparent’s rights over their grandchildren. That said, our Children’s Act 38 of 2005 does provide for a way to establish such rights.

In terms of the Children’s Act, any third party who has an interest in the care, well-being, or development of a child may apply to either the High Court or the Children’s Court for an order for care or contact over minor children. Thus a grandparent who wishes to establish rights over grandchildren would need to make use of the applicable section 23 of the Children’s Act in these cases.

When considering bringing such an application to court it is important to note the difference between an order for care and one for contact.


“Care” as defined in Section 1 of the Children’s Act includes providing the child with a suitable place to live, proper living conditions, financial support and protecting the child from abuse and harm. It also deals with guarding against any infringement of the child’s rights, directing the child’s education and ensuring the best interest of the child are the paramount concern in all matters affecting the child.

“Contact” on the other hand, in relation to a child, means to maintain a personal relationship with the child. If the child lives with someone else contact would entail communication with the child on a regular basis either in person or by telephone.

In an application for either care or contact, the court will consider the best interest of the child, the relationship between the applicant and the child and the degree of commitment that the applicant has shown towards the child.

Furthermore, in determining the best interest of the child, the court will have regard to the need for the child to remain in the care of his or her parents or family and the child’s need to maintain a connection with his or her family, extended family, culture or tradition.

It is therefore important to note that an order granting grandparent care or contact does not take away the parental rights and responsibilities another person has in respect of the child. For example, a mother does not lose her parental rights and responsibilities when the court assigns contact or care to the child’s grandparents, they will then merely be co-holders of parental rights and responsibilities in respect of the child.

In a recent court case, it was stated that

“grandparents, more often than not, play an important part in a child’s social and psychological development and usually take a keen interest in the upbringing of their grandchildren. The relationship with their grandchildren often assists and compliments parental care. There can, therefore, be little doubt that it is usually in a child’s best interest to maintain a close relationship with his or her grandparent.”

My advice to my latest client was simply that if she felt strongly enough about being more involved with your grandchildren, it would be my recommendation that she consult with me to discuss her situation in more detail and to get my advice and legal assistance in gaining access to her grandchildren. This she has now done and has started that process.

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About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

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