There are two types of families - the nuclear and extended. All family members have a part to play in the life of the families. In our society today, parents are encouraging the interaction of their children with other family members and grandparents. As a result, all family members treat the children as their own.
In the African setting, for instance, it was and is still considered that children are for the society, and hence the society as a whole takes care of the children. The strongest relationships among children and other people who are not parents is that of children and grandchildren. It is so strong that even when parents die, the grandparents take up the role of guardian even without court orders.The grandmothers have played a very big role whenever parents die of HIV/Aids.
A question that arises as to the level of responsibility of grandparents to their grand children. For instance, what happens if the grandparent feels like they are not getting enough access to the children? Persons with parental responsibility, that is, parents and guardians, can easily make an application for access of the children. For persons without automatic parental responsibility, like a grandparent, to get access, they will have to make an application to the court for such orders.
They will have to show why they should be granted access, and that it is in the best interest of the child that the access orders are granted. Section 114 of the Children’s Act provides that the court may from time to time make any of the following orders, among them, an access order, which shall require the person with whom the child is residing to allow the child to visit, or to stay periodically with the person named in the order or to allow such person to have such other contact with the child as may be directed by the court.
This provision has provided a leeway for grandparents who want to access their grandchildren to file the application. The court in granting those orders will consider any of the following factors:-
- The applicant’s connection with the child.
- The nature of access that the applicant is desirous of having.
- Whether it is in the best interest of the child that access is granted.
- Whether, if access is granted, it will negatively affect the child.
If the application is opposed by the parents, then the court will set down the matter for hearing. If the court is satisfied that indeed it is in the best interest of the child that the grandparent has access of the child, then it will proceed to make such orders. The Children’s Act is however silent on the rights of the grandparents, if any, to have access to the children. If the court gives such an order, then the beneficiary of the order can enforce the order and have access. The order will specify the nature of the access, the time limits and the extent of the access.
The same issues arise where a couple with children die leaving behind young children who cannot take care of themselves and need a guardian to take care of them. The issues are further compounded if the deceased parents did not appoint a guardian by deed (through their wills). Where children are orphaned, the families, both the father's and the mother's, will most likely have disagreements over who should assume guardianship of the children.
All the families feel like they are best placed to have guardianship, based on religion, custom or any other consideration. Some of the family members will feel like it is guaranteed that they are the ones that are entitled to have the children. On this particular issue, the children’s Act is very clear.
On the demise of the parents of children, the grandparents or any person in that matter does not automatically acquire guardianship and hence parental responsibility. Section 105 of the Children’s Act provides that in addition to the powers of the court to appoint a guardian under subsection (5) of section 104, the court may appoint a guardian in the following circumstances: on the application of any individual, where the child’s parents are no longer living, or cannot be found and the child has no guardian and no other person having parental responsibility for him; this is the provision of the law that empowers grandparents to acquire access of their children upon the demise of their parents.