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January 27, 2017

What contact rights do grandparents enjoy with their grandchildren?


In LH and another v LBA (EL1426/20101, Eastern Cape High Court) the court had to decide what rights of access grandparents had to their grandchild.
Summary
The applicants sought an order allowing them access to their six-year-old grandson, born out of a relationship between their deceased son and the respondent. The respondent had initiated contact between the child and the applicants when the child was about six months old. The applicants then had regular contact with the child and he soon started to spend weekends with them. That arrangement continued until December 2008, after the child’s third birthday, when the respondent abruptly stopped it. Despite various attempts by the applicants to convince the respondent to allow them to see the child, they had not had any contact with him for the past three years.
Held
That when considering such an application the Court is enjoined to consider, inter alia, the best interests of the child; the relationship between the applicant and the child, and any other relevant person and the child; and the degree of commitment that the applicant has shown towards the child. In terms of section 7 of the Children's Act 38 of 2005, the Court must, when determining what is in the best interests of the child, have regard to the need for the child to remain in the care of his or her parents, family or extended family; and to maintain a connection with his or her family, extended family, culture or tradition.

The Court was not convinced that the reasons proffered by the respondent for refusing to allow contact between the child and his biological paternal grandparents were valid. However, the Court was also of the view that the extent of the access sought by the applicants was too wide, and it would not be in the child’s best interests to allow contact on that basis. A more limited right of access was granted.
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