In so far as grandparents’ rights and responsibilities are concerned, ss 23 and 24 of the Children’s Act, which govern non-parental rights to care and guardianship respectively, came into operation on 1 April 2010. Before that date grandparents had no inherent rights or responsibilities and it was only a high court, as upper guardian of a child, which could confer access, custody or guardianship on a grandparent. This would be done only if it were in the best interests of a child – an assessment that must be made having regard to the rights of the biological parents.

Grandparents very often receive the fallout from their chidren’s divorces – limited, restricted or no access at all to their often beloved grandchildren. This has all changed with the New Children’s Act whose main objectives are, amongst others to:

make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
strengthen and develop community structures which can assist in providing care and protection for children;
promote the preservation and strengthening of families;

And calls for

the prioritization of the best interest of the child,
the right to the child being able to participate in any matter concerning that child,
a child’s right of access to court.

One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or High Court,

It also makes provision for any person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship .

The Court In making its order, will consider and take into account:

the best interests of the child;
the relationship between the applicant and the child
the degree of commitment that the applicant has shown towards the child
the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
any other fact that should, in the opinion of the court, be taken into account


Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
A:1st Floor, 56 Shortmarket Street, Cape Town, 8000
O: +27 (0) 21 422 1323
F: 086 572 8373
E: bertus@divorceattorney.co.za