September 7 2012 at 08:43

Sunday is Grandparents Day in the US. Strangely, even though we don’t mark the event, SA courts have seen a recent spate of cases involving grandparents. These cases deal with widely differing facts, but together they lead a reader to conclude that a grandparent’s role is far from clear.

Late last month the high court in Grahamstown heard a dispute concerning a woman whose son was born soon after her husband died in a car crash.

After she remarried, relations between her and the parents of her deceased husband became strained, and by the time the grandparents brought the case to court, all contact between them and their grandson had ended. 

It was usually in a child’s best interests to maintain a close relationship with his or her grandparents, said the judge.

And the mother’s attitude was motivated by her “own personal difficulties” with the parents of her deceased husband rather than serious consideration of the child’s best interests.

The judge said he felt a “reasonable transitional period” was needed for the strained relationship to be repaired, and ordered that the grandparents should be allowed to visit the child at least once a week, for three hours at a time, at his parents’ home or anywhere else that the mother decided was appropriate. It’s an interesting case because when there’s conflict the court sometimes follows the mother’s wishes. Here, however, the child’s right to grow up knowing his grandparents was given priority.

Meanwhile, the Johannesburg High Court was dealing with a far more complex matter, on sections of the law dealing with foster care. The case, called “SS” to protect the child’s identity, establishes several principles. Most likely to be contentious is a table of who owes a child a “duty of support”: the biological parents of children, whether married or unmarried, as well as adoptive parents.

“Both maternal and paternal grandparents, regardless of whether the mother and father were married, have a duty of support.” So do siblings. But “aunts and uncles bear no responsibility to support their nieces and nephews”. Already there’s concern about whether this decision will lead to grandparents – particularly grandmothers who are often left to care for children when parents die or disappear – being refused foster grants, since they are legally required to support their grandchildren anyway.

At the other end of the scale another case, this time ongoing, illustrates that the law does indeed expect a duty of support from grandparents: a former SA president has been told to answer questions in court about his finances in relation to providing financial support for his grandchildren following their parents’ divorce.

The final case is last week’s decision by the Supreme Court of Appeal on the problem of a grandmother, seconded to Norway by the SA government, who wants to take her grandchildren. She and her unemployed daughters (their mothers) signed and registered a parental rights and responsibilities agreement under the Children’s Act, allowing her to take the children to Norway and maintain them there.

On this basis she claimed the child allowance paid to staff sent overseas. But the public service agreement provides such an allowance only for “dependent children”, defined as biological or adopted children or stepchildren for whose care the employee is legally responsible.

Clearly a broader definition would solve her problem. But the appeal court explained that judges can’t simply order such a change. Perhaps she’ll try again: a properly founded challenge to the validity of the definition would allow the rights and duties of grandparents to be examined more carefully.

These recent cases show us a few things: the law on the rights and duties of grandparents isn’t yet certain; even employment agreements don’t reflect reality; and the law as it stands will surely cause uneven results, with some grandparents getting foster grants and others not.

In the “SS” case, the judge commented that when a court tried to establish whether someone had a “legal duty of support in relation to a minor child”, it would have to consider what customary law had to say on the question. That’s exactly right. We need to know whether traditional extended families acknowledge any difference in responsibility for a child between aunts and grannies and older sisters. And we need to find a sustainable way to acknowledge and support – rather than penalise – grannies who care for their orphaned grandchildren on the sniff of an old-age pension.



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