We are all familiar with the saying that it takes a village to raise a child, which is something that I (as a mother myself) can attest to from recent personal experience!
The modern way of life has made it close to impossible to juggle busy work schedules, maintaining a semblance of a social life, exercise and raise a child without the assistance of third parties. In some instances many parents rely heavily on family members and friends to help them take care of their child. The inevitable result hereof is that a relationship is built between the child and the people who help raise him or her, and strong attachments are formed.
Yet, so often parents simply cut all ties between the child and the third party when their help is no longer necessary, or because of personal issues between them. This results in third parties who have grown close to the child, losing the relationship with the child and more importantly, the child being deprived of contact with a person who has become part of their life.
The question now arises – does a person who believes that the relationship between them and the child must be preserved have any means by way of which he / she can insist thereon that contact with the child is maintained?
The answer is YES!
The Children’s Act 38 of 2005 (Children’s Act) in section 23 deals specifically with the assignment of contact and care to an interested person by order of court. Section 23(1) reads as follows:
“Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children's court for an order granting to the applicant, on such conditions as the court may deem necessary contact with the child; or care of the child.”
The court in considering the application and in determination of whether the applicant must succeed must take into account the following factors:
(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 fact that should, in the opinion of the court, be taken into account.
As such, an applicant must prove to court that the relationship between him and the child is of such a nature that the best interest of the child will be served should contact be awarded.
People who are generally seen to be interested parties in a child’s life are grandparents, family members such as uncles or aunts, and in some cases depending on the facts of the matter, a person in no way related to the child, but who has played a pivotal role in the child’s life on a continuous basis.
What is important to keep in mind, as is always the case in matters involving children, the best interest of the child is paramount and must the reason for bringing the application not be that the person wants to be part of the child’s life, but that the child will be prejudiced should the person not be allowed to have contact with the child.
Parents are urged to consider the impact of their decision to remove a person from a child’s life before doing so and to always place their child’s best interest before their own. Equally, any person who firmly believes that they are an interested party as defined in the Children’s Act is encouraged to proceed with the necessary application to ensure that the child’s rights are protected.