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.
TC V SC - Case no: 20286/2017 – Cape Town High Court
Judgment delivered on 18 April 2018
Case Summary - Facilitation in Child Disputes
In an application in terms of Rule 43 for interim relief pending a matrimonial action the core issue was whether the High Court had the power, by virtue of its inherent jurisdiction as the upper guardian of minor children, to make an interim order appointing a facilitator to deal with parenting disputes over the objection of one of the parents. The applicant ("father") and the respondent ("mother") were in the midst of an acrimonious divorce. They had two young boys, "C", age 9, and "M", age 7.
In this case, Judge Diane Davis who presided over the matter observed:
“…. sadly often the case in divorce situations, the conflict generated by the breakdown of the marital relationship spilled over into the parenting relationship. The children became an arena of struggle where spousal conflict played out in the form of disputes about care and contact and other parenting issues”.
As the best interests of the child is paramount, it is mandatory that due regard and due consideration be given to any views and wishes expressed by the child. The Court sits as upper guardian in the protection of the best interests of the minor child. Read more about two cases that where the voice of the child was taken into consideration by the court.
The respondent married Mr “A” on 19 July 1997, and a child was born of the marriage on 2 June 2009. On 26 November 2013, the respondent and the child left Australia with the consent of Mr “A” to visit the respondent’s ailing father in South Africa. The respondent was due to go back to Australia with the child on 7 January 2014. Nevertheless, on being informed by her husband that he no longer desired to be married to her, the respondent made the decision to stay in South Africa with her child. Mr “A” then authorised the Central Authority of Australia to request the applicant (the Central Authority for the Republic of South Africa) to initiate the present proceedings. The applicant applied for an order against the respondent, for the return of her child to Australia. The order sought is in terms of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980.
The respondent raised both defenses permitted in article 13. In terms of 13(a) of the Convention she contended that her husband had consented or acquiesced expressly, alternatively tacitly to her removing and keeping the child in South Africa. In terms of 13(b), she stated that it would be a grave risk to expose the child to physical and psychological harm or place her in an excruciating situation if the order were to be granted for her return to Australia.
Held that the aim of the Convention is to protect children internationally from the damaging effects of their unlawful removal or retention and to guarantee their quick return to the state of their habitual residence out of deference for the integrity of the laws of that state. It is also premised on the concept that the best interest of the child is to be returned to their habitual residence. It is then up to the authority in the state of habitual residence to decide access and custody. Article 12 provides for the application to be brought not more than a year after the child has been removed from its habitual residence. If it is brought more than a year later the judicial authority may not order the return of the child if it is shown that the child is settled in its new environment. The rationale underpinning this provision is that it would be disruptive to return a child who has settled in its residence.
In this case, the child had now lived in South Africa for more than a year. Consequently she had settled well at school and in the home she shared with the respondent and her parents. A social worker engaged to report on her circumstances and the curator who represented her in the proceedings confirmed that she was well adjusted to her life in South Africa. Although that was dispositive of the matter, the Court also considered the respondent’s defences, and found them to have merit.
The application was dismissed.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.