Abstract
Despite the increased recognition afforded to biological fathers as legal parents, the Children's Act1 still does not treat fathers on the same basis as mothers as far as the automatic allocation of parental responsibilities and rights is concerned. This article investigates the constitutionality of the differential treatment of fathers in this respect, given South Africa's international obligations, especially in terms of the United Nations Convention on the Rights of the Child, to ensure that both parents have common responsibilities for the upbringing of their child. After a brief consideration of the constitutionality of the mother's position as parent, the constitutionality of the father's position is investigated, firstly, with reference to Section 9 of the Constitution and the question of whether the differentiation between mothers and fathers as far as the allocation of parental responsibilities and rights is concerned, amounts to unfair discrimination. The inquiry also considers whether the differentiation between committed fathers (that is, those who have shown the necessary commitment in terms of Sections 20 and 21 of the Children's Act to acquire parental responsibilities and rights) and uncommitted fathers may amount to discrimination on an unspecified ground. Since the limitation of the father's rights to equality may be justifiable, the outcomes of both inquiries are shown to be inconclusive. Finally, the legal position of the father is considered in relation to the child's constitutional rights – the rights to parental care and the right of the child to the paramountcy of its interests embodied in Section 28 of the Constitution. While there appears to be some justification for the limitation of the child's right to committed paternal care, it is submitted that an equalisation of the legal position of mothers and fathers as far as the automatic acquisition of parental responsibilities and rights is concerned, is not only justified but imperative if the constitutional rights of children are to be advanced and protected.Keywords: Biological father; constitutional rights of child, parents or father; legal parentage; parental responsibilities and rights; paternity.
Highlights
Despite the increased recognition of the beneficial role that fathers can play in the lives of their children by allowing married fathers, and some unmarried fathers automatic parental responsibilities and rights, the new Children's Act[1] has retained the status quo to the extent that it still does not confer automatic, inherent parental rights on biological fathers on the same basis as mothers.[2]
This contribution aims to ascertain whether the continued differential treatment, regarding the initial allocation of parental responsibilities and rights, can be justified in view of international trends emphasising the importance of the role of both parents in the upbringing of their children.[3]. These international trends have for the most part been inspired by the United Nations Convention on the Rights of the Child that has been ratified by all United Nations' member states, except the United States of America and Somalia.[4]
Article 9(3) of the UNCRC obliges state parties to respect the child's right to contact with both parents while Article 18(1) of the UNCRC compels state parties to apply their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing of the child
Summary
Despite the increased recognition of the beneficial role that fathers can play in the lives of their children by allowing married fathers, and some unmarried fathers automatic parental responsibilities and rights, the new Children's Act[1] has retained the status quo to the extent that it still does not confer automatic, inherent parental rights on biological fathers on the same basis as mothers.[2]. Assembly: In re Certification of the Constitution of the Republic of South Africa Act, 1996 1996 4 SA 744 (CC) as discussed in Sloth-Nielsen and Van Heerden 2003 IJLPF 122 Had such a right been included in the Constitution, it would, according to Bonthuys 2002 SALJ 781, have avoided the contradictory judgments on the extent and ambit of the "family". 30 In terms of S 21(1) of the Children's Act, a biological father: "... who does not have parental responsibilities and rights in respect of the child in terms of section 20 [by being married to the mother], 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) 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 the maintenance of the child for a reasonable period
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
