“With the importance of the role that the extended family plays in African culture, it is not surprising that Grandparents are the single most important category of caregivers, besides the actual biological parents of the child, to assume the responsibility of caring and raising children in South Africa.” ~Anne Louw
Grandparents Rights Outlined
The Children’s Act, Act No. 38 of 2005; Children’s Amendment Act, Act No. 41 of 2007; Regulations regarding older persons, General regulations regarding children, Gazette no. 33076, Notice no. 261, 01 April 2010 and Booklets Explaining the Children’s Act, 2009.
The Children’s Act recognises grandparents who feel their rights have been infringed according to Hester Bosman-Sadie, behavioural scientist and co-author of A Practical Approach to the Children’s Act. In an article published in YOU, she says
“It’s a common complaint among divorced and unmarried single parents – despite having the law on their side non-custodial parents often end up at the mercy of the custodial parent’s whims because it’s too expensive to take legal action. However, they can appeal to an officer of the children’s court at their local magistrate’s court and it won’t cost them a cent.”
The Act recognises grandparents who feel their rights have been infringed with emphasis falling on children’s rights to proper parental care – from both parents and other parental figures such as grandparents.
‘‘The new Act stipulates any parent can be fined or jailed if he/she refuses another parent with parental rights and responsibilities contact with his or her child.’’ And that’s prison time up to a year, Ashley Theron, executive director of Child Welfare South Africa, says in Johannesburg.
‘‘It also recognises the contact rights of grandparents and step-parents who have meaningful relationships with children,’’ he says.
The aim of the Act is to give children a say in decisions that affect their lives according to Bosman-Sadie. In custody decisions gender and sexual orientation no longer rule, such as the ‘‘maternal preference rule’’ that saw kids usually placed with their mothers, The Act reflects the idea that competent parenting has more to do with personality than gender.
Landmark Ruling in Foster Care Grants
While the case before the court involved children who rely on foster care grants specifically, the judges took the matter further, delivering a ruling that will also have a positive impact on children who receive child care grants.
“It’s a double victory,” said Simon Kelsey, the attorney who took the case to the Constitutional Court.
The ruling, he added, gave effect to the Constitution, and would make a difference to the lives of many poor children in South Africa.
The case stemmed from a claim lodged against the RAF after Jeslin Shelaine Williams, now 27, Alfreda Kim Beyers, 22, and Elton Jason Beyers, 19, lost their mother.
The mother, Noelle Beyers, was killed in an accident in 2002.
Since their father had died previously, the maternal grandparents stepped in and were later formally appointed as foster parents, entitled to receive foster care grants.
The grants, however, ended up being the children’s biggest obstacle to their later claim from the RAF for compensation for loss of support.
Earlier this year curator Wayne Coughlan took the case to the Constitutional Court, arguing that the provision of the foster care grants was in fulfilment of the state’s Constitutional obligations in respect of the children. It could therefore not be said that the grants, as well as compensation for loss of support, amounted to double compensation.
The Centre for Child Law joined the proceedings as amicus curiae (friend of the court), urging the court to also extend the principle to child support grants.
In a judgment handed down this week, the Constitutional Court found that an award for damages for loss of support was not a substitute for foster parenting, saying that there was no basis to deprive a child of compensation for loss of support because they were in foster care.
“A foster child grant is not paid to the child but to the foster parent. It is the foster parent who is entitled to receive the grant… It forms part of the patrimony of the foster parent. The foster parent may spend it in the manner she wishes, provided it is in the best interests of the child.
“The child has no claim to it,” the court pointed out.
Payment for loss of support, however, was payable to the child in order to compensate the child for the loss suffered. “It amounts to an income replacement resulting from the death of the parent as a result of a motor vehicle accident,” the court said, adding that it did not constitute double compensation.
“… the nature and purpose of the grant is different from compensation. These grants arise from the constitutional obligations of the State to provide for children in need of care. They are not paid to the children and they are not predicated on the death of a parent.”
“Where Grandparents become the care-givers of their Grandchildren, their status will be elevated significantly – in many cases comparable to that enjoyed by the parents of the child. As far as orphans or children living apart from their parents are concerned, statistics indicate that 53% of children in South Africa have a Grandparent as their primary care-giver.” ~Study of Grandparents’ challenges KZN | M Mokone | Department of Social Work, University of Limpopo, Sovenga, South Africa.
This is clearly not a route that must be lightly undertaken by Grandparents as a failed application can well cause a disgruntled or hostile parent to engage in destructive behaviour to further isolate the Grandparent and/or alienate the children against the Grandparents.
There are however cases at hand where the situation is such that a Grandparent has no option but to approach the relevant Court for an Order for contact with the child, alternatively care of the child; alternatively guardianship rights over the child. When considering such application the Court is required in terms of Section 23 and 24 of the Children’s Act to have regard to the following:
- The best interests of the minor child/children
- The relationship between the Applicant and the minor child/children and any other relevant person and the child/children
- The degree of commitment that the Applicant has shown towards the child/children
- The extent to which the Applicant has contributed towards the child/children’s financial / maintenance requirements
- Any other factor which in the opinion of the Court ought to be taken into consideration.
In the case of a Guardianship Application, the Applicant will need to submit reasons to the High Court, being the relevant Court for matters of this nature, as to why the child/children’s existing Guardian is not suitable to hold such guardianship rights.
It is always preferable in matters involving child/family disputes to submit such disputes for formal mediation prior to the parties embarking on the litigation route. The advantages of the Mediation route essentially being that Mediation seeks to assist parties to resolve their disputes in such manner as to achieve a mutually beneficial outcome. In cases of neglect and abuse of children, this is clearly not a starting option as legal intervention will by necessity have to be instituted on an urgent basis to safeguard the interests of the children. All other matters should however first commence with some attempt at dispute resolution or mediation prior to the involvement of a Court.