FATHERS’ RIGHTS & THE CONSTITUTION
In terms of Section 28(1)(b) of the Constitution of South Africa (1996) children have an inherent right to “family care or parental care”. The institution for such care has primarily been the family most notably the child’s biological parents who have since the early 1700’s been deemed to be the sole holders of parental authority or “ouerlijke macht”. The issue of the father’s rights over his child and more specifically that of the unmarried father has been a far more problematic and complex issue as set out here-below.
FATHERS’RIGHTS & THE COMMON LAW
In terms of the Common Law, the child’s mother, as well as the child’s biological father if married to the mother at the time of birth or at any time subsequent to birth, were deemed to hold Parental Authority over the child. Up until the early 1990s, a father who was not married to the child’s mother held no authority over the child, except where the father could show special grounds as an “interested third party” for the Court to interfere with the mother’s custodial rights over the child.
FATHERS’RIGHTS & THE CHILDREN’S ACT
The new Children’s Act 38 of 2005 has brought reform to many of the traditional concepts concerning the child and his/her family. The traditional doctrine of Parental Authority has now given way to:
(i) The concept of Parental Responsibilities and Rights. The essence hereof being that parents are now seen as primarily being the holders of responsibilities and concomitant rights to raise their children in accordance with the standard of “the child’s best interests”
(ii) A new target group of people who can hold Parental Responsibilities and Rights. This now including various categories of persons not traditionally deemed to be holders of rights over a child.
Previously, the unmarried father held no parental authority over his child and could in terms of the landmark case of Calitz v Calitz (1939) AD only acquire authority if such was justified on the basis of there otherwise being a danger to the life, health or morals of the child.
The inclusion of Section 21 in the Children’s Act 38 of 2005 has ameliorated the position for a large category of unmarried fathers in that it now provides that for two classes of unmarried fathers there is an automatic conferring of Parental Responsibilities and Rights upon them.
When Does the Unmarried Father Qualify for Automatic Rights of Parenthood?
(i) The unmarried father who at the time of the birth of the child lived in a “permanent life partnership” with the mother; alternatively
(ii) The unmarried father who –
(a) Consents to be identified as the father; and
(b) Has contributed or attempted to contribute in good faith for a reasonable period to the child’s upbringing; and
(c) Has contributed or attempted to contribute in good faith for a reasonable period to the child’s maintenance.
What Happens if the Mother Disputes the Father’s Right of Parenthood?
The Children’s Act provides that where there is a dispute between the child’s parents as to whether or not the aforesaid requirement(s) have been satisfied, the matter must first be referred to mediation prior to it being placed before the Court.
What Happens to the Father who Doesn’t Satisfy the Above Requirements?
The unmarried father who does not satisfy the requirements set out in Section 21 of the Children’s Act is not without remedy and can acquire rights by either:
(i) Concluding a Parental Responsibilities and Rights Agreement with the other holder(s) of such Parental Responsibilities and Rights (this normally being the child’s mother). This agreement once concluded would need to be registered with the Family Advocate’s Office or confirmed by a competent Court in order to have legal effect and be enforceable ; or
(ii) In those cases where the other holder of Parental Responsibilities and Rights refuses to enter into a Parental Responsibilities and Rights Agreement with the unmarried father, the Court can be approached to confer such Responsibilities and Rights on the father. In the event of the unmarried father requiring rights which include guardianship rights over a child, then only the High Court has jurisdiction to make the necessary Order, whereas if guardianship is not being sought by him, a lower Court (the Children’s Court) can be approached to make such order.
Although not expressly stated, it is clear that the changes which the Children’s Act has made to the common law in this regard serve to safeguard and promote the child’s right to know its genetic origin and to develop a relationship with both of its parents.