The facts of the case were that the appellant and first respondent are the biological mother and father, respectively, of a minor child born in Durban in 2012. The parties were not married to each other and did not live together in a permanent life partnership. However, the first respondent had consented to being identified as the child’s father. When the child was four months old, the appellant removed the child from Durban and relocated to England without informing or seeking the consent of the first respondent. The first respondent later approached the Family Division of the High Court of Justice in the United Kingdom (the English court) seeking an order that the appellant should return the child to Durban. The English court referred the matter to a South African court to determine whether the appellant lawfully changed the child’s place of residence without the permission of the first respondent.

In determining the appeal, the SCA observed that since the parties were not married or living together, the issue was whether in terms of section 21(1)(b) of the Children’s Act 38 of 2008, the first respondent had acquired full parental rights and responsibilities in respect of the child before she was removed from South Africa. It recalled that section 21(1)(b) states that an unmarried father may acquire full parental rights if he “(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.”

In its judgment, the court – while refraining from deciding whether a father must satisfy all the requirements in section 21(1)(b) – emphasised that the determination of whether the requirements had been satisfied was dependent on the facts of each case. It noted that the purpose of this provision is to provide for the automatic acquisition of parental rights by an unmarried father if he met the requirements set out so that they enjoy similar rights as fathers who are married to the child’s mother. According to the SCA, the aim of this was to advance the right to equality and the right of a child to parental care as provided in sections 9 and 28 of the Constitution respectively. Observing that the law gives automatic parental responsibilities and rights to married fathers without requiring that they contribute towards the upbringing or expenses of their children, the SCA cautioned that courts should not unfairly discriminate against unmarried fathers in their interpretation of section 21(1)(b) by requiring “significant or reasonable contributions”. The court further warned that there was a real danger of finding that this provision had not been met on the basis of factors wholly unrelated to an unmarried father’s ability and commitment as a father.

The SCA explained that the legislature deliberately omitted to qualify the word “contribute(s)” in sections 21(1)(b)(ii) and (iii). It noted that while it was clear that an unmarried father’s contribution must be of an on-going nature, what constitutes a reasonable period should be based on factors such as the age of the child and the circumstances of the parties at the time the determination is made.

Returning to the facts of the case, the court found that the first requirement had been complied with since the respondent had consented to being identified as the child’s father. Regarding the second requirement, it held that it had also been met because the first respondent had shown willingness to be involved in the upbringing of the child within the limits allowed by the appellant. According to the court, this was evident, for instance, from the fact that he had accompanied the appellant to a medical scan and failed to continue doing so when the appellant disallowed him. Further, he had regularly spent time with the child after birth and was ready to spend more time with her if the appellant allowed it. He had also taken out an endowment policy to provide for the child’s future upbringing.

With regard to the third requirement, the SCA found that it had been satisfied in that apart from building a changing table, the first respondent had purchased items for the child such as a heater, a pram, a car seat, clothing and nappies. He had also offered to include the child on his medical aid, an offer which the appellant refused. The court rejected the appellant’s contention that the first respondent’s contribution was insignificant. It emphasised that the extent and nature of the contribution under section 21(1)(b) is unqualified and that in terms of section 21(2) of the Act, the duty of an unmarried father to contribute towards the maintenance of a child is separate from the contribution referred to in section 21(1)(b).

Ultimately, the court found that the first respondent had acquired full parental rights in respect of the child and that as a co-guardian, his consent was therefore required by section 18(2)(c) of the Act before the child could be removed from the country by the appellant. Accordingly, the appellant had acted unlawfully when she relocated the child to England without the consent of the first respondent.

The significance of this decision is that it further clarifies the rights of unmarried fathers and the meaning of the requirements that they must meet in section 21(1)(b) of the Children’s Act to acquire full parental rights regarding their children. The SCA’s interpretation of this provision ensures that the acquisition of parental rights and responsibilities of an unmarried father is not frustrated by the actions of the child’s mother. This advances the right of children born to unmarried parents since it promotes section 28(1)(b) of the Constitution, which provides for a child’s right to parental care. The decision also mitigates the distinction between the parental rights of married and unmarried fathers by rejecting the position that the latter must make significant contributions to the expenses of a child’s maintenance to acquire full parental rights. The ruling therefore promotes the right to equality.

By Esther Gumboh, Intern: Centre for Constitutional Rights

Photo credit: JKönig / Foter / CC BY-NC-SA