THIS article seeks to evaluate Zimbabwean law concerning the right of grandparents to access their grandchildren after the recent High Court judgment in Machika v Makoni HH-271-23 wherein access was granted to a maternal grandmother against the wishes of the custodial biological father of the two minor children.
Unlike guardianship, the issues of access and custody by third parties remain outside the provisions of any specific legislation.
The Guardianship of Minors Act only regulates the rights to access and custody of biological parents and not third parties.
This is glaring from a mere reading of section 6 of the Act which defines “access order” to mean an order of any court which confers rights of access to a minor upon a parent who does not have the custody of that minor.
Thus, it is only biological parents who have the inherent right to custody and access to their minor children because access, like custody, is an incident of parental authority. See, B v S 1995 (3) SA 571 (A).
Thus, if access is a parent’s entitlement as a matter of inherent legal right, it can only stem from his or her parental authority.
Accordingly, third parties including grandparents have no inherent right to access their grandchildren and their involvement in the lives of grandchildren is a matter of private arrangements between families.
Nevertheless, the constitution dictates the prioritisation of the best interests of the child in all matters involving children.
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A primary procedural question that must be considered in the judicial process is whether the parties to the litigation have locus standi.
Grandparents have locus standi to apply for access to a minor child. Per Mafusire J in Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H), locus standi refers to one's right, ability or capacity to bring legal proceedings in a court of law.
This is the case even though they do not have the inherent right to access.
Whether or not access will be granted will depend on the consideration of other factors.
The rationale is that the approach must not be to shut the door to a grandparent without assessing the trigger of the application.
All the grandparents need to allege and prove to establish locus standi is the very fact that he/she is the grandparent of the relevant child. See, Kleingeld v Heunis and Anor 2007 (5) SA 559 (T) & Machika case supra.
The High Court may, as the upper guardian of all minor children, intervene to grant access to a grandparent or any third party where special grounds indicate that it is in the best interest of the child to do so.
The courts, however, remain reluctant to interfere with the parental authority against the wishes of biological parents as this may have negative effects on the family dynamics.
They are slow to substitute themselves as parents of children where nothing indicates that biological parents are not exercising parental rights in the child’s best interest. See, Machika case, Kleingeld case supra.
Biological parents have the exclusive right to decide to whom and under what circumstances to grant access rights to a third party and the court can only intervene when it is shown that it is not in the best interest that such refusal is made or that it is not in the best interest of the child that such access is being allowed by the parents of the child.
Since there is currently no specific legislation on the subject, the following statements of law and legal principles will be the basis for the court’s intervention to grant access to grandparents or any third party:
- The High Court of Zimbabwe is the upper guardian of all minor children with the power to sanction, protect and act in the best interest of children especially where the natural guardian neglected, refused or is absent.
- Grandparents have the locus standi to apply for an order granting them access to their grandchildren. The right is only to approach the court and not the granting of access itself.
- The court’s intervention as the upper guardian must be specifically pleaded in the Founding Affidavit.
- The court must be slow in substituting itself as the parent of the children, especially where the biological parents are still alive, are staying with their children and where there is nothing placed before it to show that the parents are not exercising their parental rights in the children’s best interests.
- The question to be answered is whether the Applicant has provided some basis to conclude that the court should usurp the functions of the biological parent in making crucial decisions that affect the minor child. See, Duncan v Louw HH-201-15.
- The trigger that warrants any interference must be an allegation that the rights are not being exercised properly and it is therefore in the interests of the child that those rights be interfered with. See, Cruth v Manuel 1999(1) ZLR 7 (S).
- Allegations of improper exercise of rights by parents include realities such as danger to the child's life, health, or morals. See, Machika case & Kleingeld case supra.
- The court should not be requested to “grant a grandparent his or her right to access” since grandparents do not have inherent rights to access.
- The court will assess the application considering the child’s best interests as well as the rights of the biological parents.
- The applicant must allege and prove facts based on which the court can conclude that it is in the best interest of the child that he or she should be granted the right to access.
- The facts/special grounds must be set out in detail in the Founding Affidavit.
There is currently no specific legislation regulating the application for access by grandparents in our law, grandparents who wish to have access to their grandchildren can utilise the provisions of the constitution and the common law to apply to the High Court for an order of access. Nevertheless, considering the court’s reluctance, this application should not be taken flippantly.
It is recommended that the Guardianship of Minors Act should be amended to provide clear circumstances under which the court may be approached to grant access to a third party such as a grandparent.
We suggest that the amendments should also stipulate that when considering an application, the court must take into account 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 that the applicant has shown towards the child; the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and any other fact that should, in the opinion of the court, be taken into account.
This article was co-authored by Kudakwashe Kambo and Chido Pamela Mafongoya.
DISCLAIMER: This article is for information purposes only and does not constitute legal advice.
These weekly Perspectives column published in the Standard newspaper is coordinated by Lovemore Kadenge, an independent consultant, managing consultant of Zawale Consultants (Private) Limited, past president of the Zimbabwe Economics Society and past president of the Vhartered Governance & Accountancy Institute in Zimbabwe in Zimbabwe. Email- Kadenge.zes@gmail.com and Mobile No. +263 772 382 852
