When a family breaks down, the people who lose contact with children are not always the parents. Grandparents who looked after a child every day, step-parents who helped raise a child for years, and aunts or uncles can suddenly find themselves cut off.
South African law does not give these family members automatic rights. But the Children’s Act 38 of 2005 allows them to apply to court, and courts increasingly recognise the importance of these relationships for the child.
No automatic rights
Parental responsibilities and rights (care, contact, guardianship and maintenance) belong automatically only to a child’s mother and, in most cases, father. See our article on care and contact. A grandparent or step-parent has no automatic legal right to see a child or to make decisions about the child.
Applying under section 23
Under section 23 of the Children’s Act, 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 proceedings, or the Children’s Court for an order granting them contact with, or care of, the child.
When deciding the application, the court must consider:
- the best interests of the child;
- the relationship between the applicant and the child, and any other relevant person and the child;
- the degree of commitment the applicant has shown towards the child;
- the extent to which the applicant has contributed towards expenses in connection with the child’s birth and maintenance; and
- any other fact that should, in the court’s opinion, be taken into account.
Guardianship can be sought under section 24, but only from the High Court.
What courts look for
Courts focus on the child, not on the adult’s feelings or “rights”. Applications are strongest where:
- the applicant had a close, established relationship with the child, for example as a daily caregiver;
- ending the relationship would harm the child, such as causing a loss of stability or attachment; and
- the proposed contact is realistic and does not undermine the parents’ role.
For example, in H M VA and Another v T H B [2025] ZAGPJHC 544, the Johannesburg High Court refused the father leave to appeal against an order granting grandparents regular contact with a child who had lived with them for most of her life. The court noted that the father had produced no expert evidence that the contact was harmful.
Courts also respect the right of parents to make decisions for their children. A grandparent who has had only occasional contact, or whose involvement would increase conflict between the parents, may find it harder to succeed.
Practical steps
- Try agreement first. A parenting plan or contact agreement can include grandparents and step-parents, and can be made an order of court.
- Mediate. Courts expect parties to have tried mediation, and the Office of the Family Advocate can assist.
- Gather evidence. Photographs, messages, school records and witness statements can show the relationship and your commitment.
- Consider the Family Advocate or an expert. An independent assessment carries significant weight.
- Focus on the child. Applications that read as a dispute between adults rarely succeed.
Step-parents
A step-parent does not acquire parental rights by marrying the child’s parent. Options include:
- a parental responsibilities and rights agreement under section 22 of the Children’s Act, with the consent of the parent(s), registered with the Family Advocate or made an order of court;
- an application under section 23 for contact or care, for example after a divorce from the child’s parent; or
- a step-parent adoption, which requires the consent of the other biological parent (unless dispensed with by the court) and terminates that parent’s rights.
When a parent dies
When a parent dies, the surviving parent usually continues to hold full parental responsibilities and rights. Grandparents and other relatives may still apply for contact under section 23. A parent can also appoint a guardian in their will, which becomes effective if the other parent has also died or does not hold guardianship. This is another reason why parents should have up-to-date wills.
How O’Reilly Law can help
We advise and represent grandparents, step-parents and other family members seeking contact or care, and parents responding to such applications. We also assist with parental responsibilities agreements and the appointment of guardians in wills. Contact us to discuss your situation.
Related reading: Care and contact under the Children’s Act · Travelling with your child
This article is general information and not legal advice. Correct as at October 2026.