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Article by listed attorney: Fawzia Khan

Provided he satisfies the requirements in the Children’s Act, an unmarried father can obtain automatic parental rights towards his biological child. The rights of an unmarried father came under the spotlight in a case which started out in the courts in England eventually ending up in the Supreme Court of Appeal in South Africa. A couple had a son in July 2012, out of wedlock. Even though the parents were not married to each other, or did they live together, the father consented to being identified as the child’s father. Whilst the father was away on a short visit to the US, the mother relocated to England taking the four-month-old infant out of the country without informing the father or obtaining his prior consent. The father then approached the courts in England for relief. He relied on the terms of the Hague Convention relating to child abductions and argued said that the mother of the child breached the provisions of the Children’s Act 2005 in South Africa. He asked the English court for an order compelling the mother to return the child to his habitual place of residence in Durban, South Africa.

The English court had to decide whether or not the removal of the child from South Africa was wrongful. They were unable to decide that question and referred the question to be determined by a South African court. The father brought an application out of the Durban High Court. The mother opposed the application and argued that save for consenting to being the child’s father, the father never contributed towards the child’s upbringing or maintenance and therefore did not fully satisfy the provisions of the Children’s Act.

The High Court did not agree and found that the father did indeed meet all the requirements as set out in the Children’s Act 38 of 2005. The High Court also held that the father had acquired full parental rights and responsibilities in respect of the child and therefore the mother ought to have obtained his prior consent before removing the child out of the country.

The mother took the decision of the High Court on appeal to the Supreme Court of Appeal (“the SCA”), in Bloemfontein. The SCA said it could not fault the reasoning of the Durban High Court and dismissed the mother’s appeal with costs.

The SCA stated that in deciding whether or not a father has met the requirements as set out in the Children’s Act, requires a factual enquiry to be made. This is where all the relevant facts and circumstances of the matter must be considered. Once that enquiry was done, the court would be able to clearly assess whether or not the father had acquired co-parental rights and responsibilities towards a minor child. The SCA held that in the present case the father met all the requirements needed to grant him co- parental rights and responsibilities to the child as well as that of being co-guardian of the child. On that basis, the father’s prior consent allowing for the removal of the child out of the country was therefore required.

More on unmarried parent's rights in SA.

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