The Children’s Act 38 of 2005 (“The Act”) provides for the acquisition of Parental Responsibilities and Rights by unmarried fathers. Prior to the Act coming into effect unmarried fathers would have to apply to court in order to acquire rights in respect of their minor children, however, the Act allows for some unmarried fathers to automatically acquire Parental Responsibilities and Rights.
The acquisition of Parental Responsibilities and Rights are regulated by Section 21 of the Act. Section 21(1) stipulates the conditions under which an unmarried father would acquire these Responsibilities and Rights automatically.
Section 21(1) of the Act stipulates the following:
“21(1) The biological father of a child who does not have Parental Responsibilities and Rights in respect of the child in terms of section 20 (this section deals with a married father’s Parental Responsibilities and Rights), acquires full Parental Responsibilities and Rights in respect of the child –
(a) If at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
(b) If he, regardless of whether he has lived or is living with the mother –
(i) Consents to be identified or successfully applies in terms of Section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) Contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) Contributes or has attempted in good faith to contribute towards expenses in connection with maintenance of the child for a reasonable period.”
It is unclear whether an unmarried father has to meet all the criteria in section 21(b) in order to obtain automatic Parental Responsibilities and Rights. This was dealt with in KLVC v SDI (2014). In its judgement the Supreme Court of Appeal (SCA) did not clarify whether all the criteria in section 21(b) had to be met. Instead, the SCA emphasised that an individual determination must be made in relation to the facts of each case and added that courts must not unfairly discriminate against unmarried fathers.
Some fathers, despite theoretically having automatic rights in terms of section 21, often have to approach the court to obtain a document confirming these rights. In this regard the Office of the Family Advocate has been authorised to issue a certificate to unmarried fathers who meet the criteria stipulated in the Act. A further and more accessible option is to approach the Children’s Court, which exists in every magisterial district.
An unmarried father who does not meet the criteria stipulated above can acquire either full or specific Parental Responsibilities and Rights, either by agreement with the mother of the child, or any such person who has already obtained Parental Responsibilities and Rights in terms of Section 22 of the Act. This agreement only takes effect once it is registered with the Family Advocate or is made an order of the High Court or Children’s Court.
Unmarried fathers who are not able to acquire Parental Responsibilities and Rights automatically or by agreement between the parties can apply to court. This can be done in terms of Section 23 or Section 24 of the Act.
An application in terms of Section 23 provides for the acquisition of rights to either Care and/or Contact. This application can be made to the High Court or the Children’s Court. When considering Section 23 applications, the court must take the following into account:
“(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other relevant person and the child;
(c) the degree of commitment that the applicant has shown towards the child;
(d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
(e) any other fact that should, in the opinion of the court, be taken into account.”
The above criteria imply that a court would require an assessment report before making a determination of Care and/or Contact.
An application in terms of Section 24, for guardianship, can only be made to the High Court where the child resides. In terms of Section 24, when considering the application, the High court must take the following into account:
“(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other relevant person and the child;
(c) the degree of commitment that the applicant has shown towards the child.”
An unmarried father has a duty to maintain the minor child, whether or not he exercises contact to the child. The duty to support is the only responsibility that automatically clings to an unmarried father. Care and Contact to a child cannot be withheld by a mother or another co-holder of Parental Responsibilities and Rights due to non-payment of maintenance.
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