GRANDPARENTS, SAMESEX

PARTNERS ETC.

Section 23 of the Children’s Act, No. 38 of 2005 provides that any person (obviously including grandparents and other family members) having an interest in the care, well-being or development of a child may apply to the High Court, a Regional Court or a Children’s Court, for an order granting to the Applicant, on such conditions as the Court may deem necessary:

a) contact with the child;
b) care of the child; or
c) guardianship of the child (High Court only)(Secton 24)

When considering such an application, the Court must take into account:

a) the best interests of the child;
b) the relationship between the Applicant and the child and any other relevant person and the child;
c) the degree of commitment that the Applicant has shown towards the child;
d) the extent to which the Applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
e) any other factor that should, in the opinion of the Court, be taken into account.

In LH and Another v LA 2012 (6), SA 41 (ECG) the Respondent’s son was born soon after her husband was killed in a car crash. After she remarried, relations between her and the parents of her deceased husband had deteriorated to the extent that all contact between them and their grandson had ended. The Applicants, desperate to reestablish contact with their grandson, approached the High Court for an order granting them access. The Respondent opposed the application on the basis that the initial contact with them had resulted in numerous problems which convinced her and her new husband that further contact with the Applicants would not be in her son’s best interest.

The court held that it is usually in a child’s best interest to maintain a close relationship with his or her grandparents. In the present case, the Respondent’s attitude was motivated by her personal difficulties with the Applicants, rather than a consideration of her son’s best interest. Contact between the Applicants and their grandson, though desirable, had to be carefully circumscribed so as not to interfere with the Respondent and her husband’s parental responsibilities. A reasonable transition period was required for the repair of the soured relationship between the Respondent and the Applicants and allowing the Applicants to visit their grandchild once a week, for three hours at a time, at his parents’ home or anywhere else the Respondent thought appropriate, would be in the child’s best interests.

In the unreported case of CM v NG (Western Cape Court case number 8026/2011), the issue of parental responsibilities and rights in respect of a same-sex relationship was considered. In this matter, the Applicant and the Respondent was a same-sex couple who began living together in May 2005. After a year, they moved to London, where they lived until June 2010. Both parties, on separate occasions, underwent artificial insemination at the Cape Fertility Clinic. As a result of the procedure, a minor child was born to the Respondent in 2008. The Applicant has no biological bond with the child and the Respondent, as being the birth mother, was recorded as the parent. In November 2010 the relationship between the parties ended. The Applicant brought an application in terms of Section 23 and 24 for an order granting her full parental responsibilities and rights in respect of the Respondent’s child. The Court held that both “care” and “contact” are components of parental responsibilities and rights in terms of Section 18(2). Having regard to the definition of “care”, it was clear that the concept of “care” extended beyond the common law concept of “custody”.

It was accordingly the Court’s judgment that an interested party applying in terms of Section 23 for parental responsibilities and rights would be entitled to an order for both contact and care where this was in the best interest of the child. As far as guardianship is concerned, the Court held that there are two overarching considerations, i.e. the High Court as upper guardian of all children and the best interest of the child. The Court held that Section 24(3) only applies where a party seeks exclusive rights to guardianship (sole guardianship) where the section provides that “in the event of a person applying for guardianship of a child that already has a guardian, the Applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child”. The High Court’s inherent jurisdiction as upper guardian of children, to grant an application for guardianship to any person without affecting the rights of an existing guardian was therefore not limited by Section 24(3).