There is nothing in our common law to indicate that anyone has an inherent right of access to a minor child other than the biological parents of a child.
Do third parties have a right of contact with a child?
What is contact?
The new Children’s Act defines ‘contact’, in relation to a child, to mean:
1) maintaining a personal relationship with the child; and
2) if the child lives with someone else-
a) communication on a regular basis with the child in person, including-
i) visiting the child; or
ii) being visited by the child; or
b) communication on a regular basis with the child in any other manner, including-
i) through the post; or
ii) by telephone or any other form of electronic communication.
It also provides that in all matters concerning the care, protection and well-being of a child thestandard that the child’s best interest is of paramount importance, must be applied.
Who is entitled to contact with a child?
There is nothing in our common law to indicate that anyone has an inherent right of access to a minor child other than the biological parents of a child. However, any third party person having an interest in the care, well-being or development of a child is entitled to approach the court to have the right of contact granted to him or her, provided that such right is in the best interests of the child. Thus, grandparents, aunts and uncles, brothers and sisters, and anyone who has had a close relationship with a child may ask a parent for contact with the child. If contact is refused, the person wanting contact may apply to the courts for a contact order.
The High Court will not lightly interfere with a decision made by the parent of a child to refuse such contact merely because it disagrees with that decision. Our courts have always been reluctant to interfere with the parental authority except in special circumstances. The court will only tolerate any judicial intervention in a family (such as the granting of grandparental contact to a minor child) in special circumstances and must exercise careful circumspection before intervening.
In a recent case a Pretoria High Court judge turned down an application by an Mpumalanga couple seeking to be appointed as co-caregivers of their five-month-old granddaughter. The grandparents had launched an urgent application in which they stated their wish to remain in contact with the baby. The couple’s son, the baby’s father, was 19 when he died in an accident days before the child was born. The judge said the Children’s Act provided that the biological mother, married or not, had full parental rights and was the legal guardian. The judge said the grandparents (in the circumstances of this case) did not have any rights in law regarding their grandchild.
Bregman Moodley Attorneys Inc. 2015/089214/21
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