The rights of unmarried fathers
Category Newsflash
THE RIGHTS OF UNMARRIED FATHERS
The Children’s Act of 2005 has had a major impact on the rights of unmarried fathers because a father now automatically acquires parental rights and responsibilities (without needing to go to court) if a father complies with the conditions as set out in Section 21 of the Act.
In a recent Supreme Court of Appeal (SCA) matter, the Court had to determine the rights of an unmarried father. The Appellant in this matter, the biological mother of child “S”, relocated to the United Kingdom with S, without informing or obtaining permission from the father to take S along. S was four months old at the time.
In May 2013 the Respondent, S’s biological father, brought an application to the High Court of Justice, Family Division of the United Kingdom, for an order compelling the mother to return S to South Africa. This order was sought in terms of the Hague Convention of the Civil Aspects of International Child Abduction.
The UK Court had to determine whether the father had acquired rights of custody in respect of S, and secondly, whether the mother had in fact breach those rights. This was a question of South African law and the matter was referred to a South African Court for determination.
The KwaZulu-Natal High Court found in favour of the father, and held that in terms of Section 21(1)(b) of the Children’s Act, the father had acquired full rights and responsibilities in respect of S and therefore his consent was required by the mother before she could relocate with the child.
Section 21(1)(b) states that an unmarried father will acquire full parental rights and responsibilities if he:
- consents to being identified as the father of the child;
- contributes, or has attempted in good faith to contribute towards the child’s upbringing for a reasonable period, and;
- contributes or has attempted in good faith to contribute towards the child’s maintenance.
The mother appealed the matter on the basis that the Court had interpreted Section 21(1)(b) incorrectly, by only focusing on the first requirement in the section, instead of all three.
The SCA rejected the mother’s argument and held that a determination about whether or not an unmarried father met the requirements in terms of the Act is an entirely factual enquiry which required a consideration of all the relevant factual circumstances, in respect of which judicial discretion played no role.
Not only did the father consent to being identified as the father of S but also attempted, in good faith, to be involved in S’s upbringing and to contribute towards his maintenance. Therefore all three requirements in terms of Section 21(1)(b) were in fact satisfied and the SCA found that the mother had an obligation to obtain the father’s consent before relocating with S to the United Kingdom.
Bisset Boehmke McBlain Attorneys
March 2015
Author: Bisset Boehmke McBlain Attorneys
