When parents separate, the arrangements relating to a child’s care and contact should be guided by one overriding principle: the child’s best interests. South African law no longer focuses on parental “custody” and “access” in the traditional sense, but on parental responsibilities and rights, including care, contact, guardianship and maintenance. In practice, however, many parents still refer to “access” when describing one parent’s right to spend time with, communicate with, or maintain a relationship with a child. Where one parent refuses the other parent contact without lawful justification, the consequences can be serious. A refusal may amount to a breach of a parenting plan, settlement agreement or court order, and may also undermine the child’s right to maintain a meaningful relationship with both parents.

The legal framework

Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. The Children’s Act 38 of 2005 gives practical effect to this principle by regulating parental responsibilities and rights. These include the responsibility and right to care for the child, maintain contact with the child, act as guardian, and contribute to the child’s maintenance. 

Contact is not treated as a reward for one parent or a bargaining tool for the other. It is a child-centred right and responsibility. The court will therefore ask whether the proposed contact arrangement promotes the child’s welfare, stability, safety and emotional development.

When refusal of access may be justified

There are circumstances in which a parent may have legitimate concerns about allowing contact. Examples include credible allegations of abuse, neglect, substance abuse, exposure to unsafe environments, or conduct that places the child at risk. In such cases, the appropriate response is usually not a unilateral and indefinite refusal of contact, but an urgent application to vary, suspend or regulate contact through the court.

The court may order supervised contact, phased-in contact, therapeutic intervention, a social worker or psychologist’s assessment, or other protective measures. The parent raising the concern should keep evidence of the risk and act promptly, because unsupported allegations or self-help remedies may be viewed negatively.

Unlawful Refusal and Its Consequences

If a parenting plan, settlement agreement or court order regulates contact, a parent may not simply decide to ignore it. A parent who persistently frustrates contact may face legal consequences, including enforcement proceedings, contempt of court proceedings, adverse costs orders, or a variation of the existing care and contact arrangements.

Contempt proceedings are particularly serious. Where a court order exists and one parent wilfully and mala fide refuses to comply with it, the other parent may approach the court for relief. In appropriate cases, the court may impose a fine, suspended committal, or imprisonment. Courts have repeatedly emphasised that compliance with court orders is fundamental to the rule of law and that children’s matters cannot be treated as private disputes in which court orders are optional.

Persistent refusal may also affect the court’s assessment of which parent is better able to promote the child’s relationship with the other parent. In severe cases, especially where parental alienation or repeated obstruction is proved, the court may reconsider primary care arrangements if that is in the child’s best interests.

Maintenance is not a basis to deny contact

A common misconception is that a parent may deny contact because the other parent has failed to pay maintenance. This is generally incorrect. Maintenance and contact are separate legal obligations. A parent who fails to pay maintenance may be dealt with through maintenance enforcement mechanisms, but the child should not be deprived of a relationship with that parent as punishment for non-payment.

What should the affected parent do?

A parent who is being denied contact should avoid retaliatory conduct and should act in a measured, evidence-based way. Useful steps include:

• Keep a written record of each missed contact visit, including dates, times, messages and the reason given for refusal.
• Communicate calmly and in writing, requesting compliance with the agreed or ordered contact arrangements.
• Check whether there is a parenting plan, settlement agreement or court order regulating contact.
• Consider mediation, parenting coordination or assistance from the Family Advocate where appropriate.
• Approach the Children’s Court or High Court for enforcement, variation or urgent relief where necessary.
• Seek legal advice before taking unilateral steps, especially where safety allegations have been raised.

What if there is no court order?

Where there is no formal order or parenting plan, the dispute may be more difficult to enforce immediately. The parent seeking contact should consider formalising arrangements through a parenting plan or court order. A clear written arrangement reduces uncertainty and provides a basis for enforcement if one parent later refuses to comply. A parenting plan can regulate ordinary contact, holiday contact, school arrangements, transport, communication, decision-making and dispute-resolution mechanisms. Once properly concluded and, where applicable, made an order of court, it becomes a practical roadmap for co-parenting.

Conclusion

Refusing access is not a step to be taken lightly. While a parent may be justified in restricting contact where there is a genuine risk to the child, the proper course is to obtain legal protection through the court rather than to act unilaterally. Conversely, where contact is refused without justification, the affected parent has remedies to enforce their rights and, more importantly, to protect the child’s right to maintain a meaningful relationship with both parents. Ultimately, the question is not which parent is entitled to “win” the dispute, but what arrangement best serves the child’s welfare, stability and long-term emotional well-being.

Written by Robyn Shepherd, SchoemanLaw Inc