n Stellenbosch Law Review = Stellenbosch Regstydskrif - Children and grandparents : an overrated attachment?




Child-rearing in South Africa has long been characterised by the presence of multiple care-givers in the lives of children. With the importance of the role that the extended family plays in African culture, it is not surprising that grandparents are the single most important category of caregivers, besides the actual biological parents of the child, to assume the responsibility of caring and raising children in South Africa. Despite proposals to afford grandparents special status in law, no provisions to that effect have been enacted. The article investigates whether the continued lack of legal recognition afforded to grandparents can be justified in the light of the changed legal landscape found in South Africa. Consideration is given to the impact of a child's constitutional right to "family care" as well as the growing legal recognition of care-givers and the so-called "multiple parenting scheme" envisaged by the Children's Act 38 of 2005. The generally held belief that to disregard a child's attachment to his or her grandparents would necessarily run contrary to the child's best interests, is also questioned. For this purpose the article discusses relevant case law in South Africa and refers to empirical research undertaken in the United Kingdom. The article ultimately concludes that the law's current treatment of grandparents seems to be satisfactory. The Children's Act would seem to be flexible enough to protect the attachment between children and their grandparents when threatened. However, the judicial protection of the attachment remains subject to the best interests of the child. The fact that grandparents are not automatically vested with rights as far as their grandchildren are concerned, would seem to support the view that the law should be slow to make general assumptions about the role that grandparents play in the lives of their grandchildren.


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