Unmarried Fathers

  • At Common law unmarried fathers – father of illegitimate children has no parental authority and could only acquire aspects of it if they were able to satisfy the “life, health, moral test” set out in Calitz v Calitz.
  • Until the 1990’s and unmarried father’s lack of parental authority was reflected in his exclusion from almost every statutory rights that vested in other parents.
  • In Fraser v Children’s Court Pretoria North, the Constitutional Court found this differentiation to be unfairly discriminating. The court gave three distinct reasons;
    1. Child Care Act unfairly decimated against fathers on the grounds of marital status.
    2. Child Care Act unfairly discriminated against mothers and father on the grounds of sex.
    3. Child Care Act caused unfair discrimination between married and unmarried father’s on ground of marital status.
  •  In Section 21 of Children’s Act awards full and automatic parental rights to an unmarried father:
    1. “If at the time of the child’s birth he is Living with the mother in permanent life partnership; or
    2. If he, regardless of whether he has lived or is living with mother –

i)                    Consents to be identified or successfully applied in terms of section 26 to be identified as the child’s father.

ii)                   Contribute or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and

iii)                 Contribute or attempted to contribute towards expenses in connection with the maintenance of the child for a    reasonable period”

  • A father who does not automatically have full parental rights and duties may obtain them by agreement with the mother. Such agreement must be in the best interest of the child and either registered with the family Advocate, or made an order of the Family Court.
  • An unmarried father may also obtain [parental rights and duties by applying to a High Court or a Children’s Court in terms of section 23.
  • Disputes about the rights of fathers must be referred to mediation to family Advocate, Social worker or Social services professional or Suitability qualified person but the court can review the outcome of the mediation procedure Section 23 of Children’s Act
  • No mention in these sections about best interest of the child?

In terms of Section 2 of the Natural Fathers of Children Born out of Wedlock Act 86 of 1987, the legislature subsequently made it quite clear that fathers of extra marital children could apply to the High Court for order granting access.

NB – Unfortunately no other similar dispensation was created for other persons related to children e.g. grandparents – Townsend v Turner Case – refused access to child.

However section 28(1) (b) of the Constitution provides that all children have a right to family care and parental care. This should be distinguished and supported in our law.