Source: Venn Nemeth and Hart, attorneys Pietermaritzburg

Judge Jolyon Knoll of the Cape High Court recently had the unenviable task of hearing an application by a grandmother who wanted access to see her only grandson. Her daughter, the child’s mother, had died, and the son-in-law, the child’s father, had formed a relationship with another woman and begun living together as a family unit with her and the child. Thereafter the relationship between the grandmother and her son-in-law had deteriorated for various reasons resulting in his not allowing her further access to her grandson.

Both the Family Advocate and an independent clinical psychologist reported to the court on the advisability of the access sought.

The court concluded that there is nothing in our common law to indicate that anyone has a right of access to a minor child other than the parents of a child born of the marriage between them.

The powers of the High Court, as upper guardian of minor children, are not unlimited. It is not entitled to interfere with a decision made by the guardian of a child merely because it disagrees with that decision. Our courts have always been reluctant to interfere with the parental authority except in special circumstances. Decisions as to who a child should have contact with remain in the hands of the person or persons vested with parental authority, in this case the father.

It was clear to the court that any judicial intervention in a family (such as the granting of grandparental access to a minor child) might have unsettling effects on the dynamics of that family, which might in turn affect the welfare and interests of the child. So the court has to exercise careful circumspection before intervening.

However, the current common law position is that any third party is entitled to approach the court to have the right of access granted to him or her, provided that such right is in the best interests of the child.

Based on all the evidence before the court, it would not, in the light of the conflict within the family, and the difficult relationships at present, be in the child ‘s best interests to allow his grandmother access to him and so place him in the middle of a situation which would confuse him and lead him to feel guilt and divided loyalties. The abnormality of judicially-sanctioned, enforced visitation was not desirable. Any relationship between the child and his grandmother had to be allowed to develop spontaneously and in an atmosphere of accord between the parties. The grandmother had to refrain from pushing the issue and the father had to be encouraged to allow such spontaneous contact, but only when the relations between the adults had been mended to the extent that contact might take place in a manner that would benefit the child. The court sensibly referred the parties to mediation by two co-mediators agreed to by them, alternatively appointed by the Office of the Family Advocate.

Townsend-Turner and Another v. Morrow 2004 (2) SA 32 (CPD).