You and Your Rights

The position of unmarried fathers was previously regulated by the Natural Fathers of Children born out of Wedlock Act 86 of 1997 which gave the court the power to grant guardianship, custody or access to an unmarried father, subject to certain conditions.

This Act insufficiently protected the interests of children and unmarried fathers. The disintegration of the family home is a traumatic experience for all children. Yet, it is an everyday reality that one parent denies the other contact to their children. The courts took cognisance of the so called “parental alienation syndrome” which is a condition which develops in a child where the alienating parent denigrates the target parent. The child develops negative feelings towards the target parent while simultaneously viewing the alienating parent as perfect. This has a lasting effect on the emotional and mental wellbeing of the child.

This Act has, however, been repealed and replaced by section 20 of the Children’s Act 38 of 2005. Some provisions of the Act are not yet in force, however section 21 dealing with the right of contact of unmarried fathers came into operation on 1 July 2007.

The right of contact, also known as “access”, is defined in section 1(1) of the Act and means:

i. maintaining a personal relationship with the child; and

ii. if the child lives with someone else –

a. communication on a regular basis with the child in person including visiting the child or being visited by the child; or

b. communicating on a regular basis with the child in any other manner including through the post or by telephone or any other form of electronic communication.

Section 18 provides that a person may have either full or specific parental rights and responsibilities in respect of a child. Furthermore, the parental rights and responsibilities a person may have in respect of the child include the responsibility and the right to maintain contact with the child.

In terms of section 21 an unmarried father now has full parental rights and responsibilities in respect of a child born out of wedlock if -

i. at the time of the child’s birth he is living with the mother in a permanent life-partnership; or

ii. he, regardless of whether he has lived or is living with the mother,

a. consents to be identified or successfully applies in terms of section 26 (which is not in operation yet) to be identified as the child’s father or pays damages in terms of customary law;

b. contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and

c. contributes or has attempted to contribute in good faith to contribute towards expenses in connection with the maintenance to the child for a reasonable period.

In essence section 21 means that an unmarried father has the right of contact to his child if the conditions listed above are met.

If the mother and unmarried father dispute whether or not the above criterion has been fulfilled, the matter has to be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. If either the mother or the unmarried father are dissatisfied with the outcome of the mediation, it can be referred to court for review.

If the unmarried father does not have a right of contact in terms of section 21 or in terms of a court order, he may still be able to acquire a right of contact in terms of an agreement with the mother. The agreement must be in the prescribed format and contain the prescribed particulars. Also, the agreement must be registered with the family advocate or made an order of the High Court or the children's court on application by the parties to the agreement.

Any Magistrate’s court is a children’s court and will have jurisdiction to hear the matter if the child involved is ordinarily a resident within the area of the court. If more than one child is involved in the matter, the court of the area in which any of those children are ordinarily resident will have jurisdiction.

The family advocate or court will have to be satisfied that the agreement is in the best interests of the child. This requirement is in line with the Constitution which expressly provides that the interests of the child are of paramount importance. When giving effect to the best interests of the child standard, the court will consider:

• the nature of the relationship between the child and the parent;
• the attitude of the parent towards the child and
• towards the exercise of parental responsibilities and rights in respect of the child;
• the capacity of the parent to provide for the needs of the child;
• the likely effect on the child of any separation from either parent; and
• the need of a child to maintain a connection with his or her family.

This list is not exhaustive and other factors may be relevant depending on the circumstances. For the above considerations, a “parent” includes any person who has parental responsibilities and rights in respect of a child.

The agreement will be of no force and effect if it is not duly registered with the family advocate or made an order of the High court or children’s court.

The agreement may be amended or terminated in certain instances.

A child wishing to have contact with his or her biological father has the right to bring, and to be assisted when bringing, a matter before the court. Also, every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

Section 21 applies retrospectively, therefore, it will not matter whether the child was born before or after the commencement of the Act.

It must be kept in mind, however, that the contact and maintenance are two distinct concepts. The right of contact therefore does not affect the duty of a father to contribute towards the maintenance of the child. Maintenance is provided for in section 15(1) of the Maintenance Act 99 of 1998.

Article submitted by Claire de Witt  www.eversheds.co.za