Unmarried Fathers Birth Certificate
A full Bench of the Grahamstown High Court recently ruled that section 10 of the Births and Deaths Registration Act 51 of 1992 was unconstitutional given that it did not make provision for unmarried fathers - caring for their children as single parents - to register the children’s births under their surnames without having the mother being present.
This followed an appeal lodged by the Centre for Child Law, represented by Lawyers for Human Rights.
The case, which was initially heard in 2018 by a single judge of the high court, sought a declaration of constitutional invalidity of section 10 of the Births and Deaths Registration Act, alongside a declaration of constitutional invalidity of regulation 12 of the Regulations to the Act.
“Children without birth certificates are invisible. The lack of recognition in the civil birth registration system exposes them to the risk of being excluded from the education system and from assessing social assistance and healthcare. There are effectively denied support and assistance considered necessary for the positive growth and development”.
These were the words of a full bench of the Grahamstown High Court which passed down judgement on 19 May 2020, where he decided that section 10 of the births and deaths registration act is unconstitutional simply because it does not make provision for unmarried fathers caring for the children as single parents to register the children’s births, under their surnames, without their mother being present.
Section 10, inextricably connected to regulation 12, was not declared unconstitutional. Section 10 regulates the provision of a surname to a child born to unmarried parents. The section provides for the child receiving:
This section does not make provision for a child to obtain their father’s surname or details of their father on the birth certificate without the mother’s involvement. There are a number of reasons why a mother may not be involved in the birth registration process. The mother may be deceased or is undocumented herself or cannot be located.
Without a declaration of constitutional invalidity of section 10, unmarried fathers remained unable to register the birth of their child without the mother being present. The judgement handed down by the full bench on 19 May 2020 clears this challenge.
The full bench found that an unmarried father’s inability to register the birth of a child in his own name, without the presence of the mother, denied children with a legitimate claim to nationality from birth, a birth certificate. It discriminates against children cared for by unmarried fathers and does not protect their best interests. The High Court acknowledged that:
Lack of birth registration exacerbates marginalization and potentially underscores inability to participate in development strategies aimed at socio-economic advancement for the achievement of productive and fulfilling lives. There is undoubtedly a disproportionate severity of such consequences for children from indigent families.
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Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.