Chris Fick & Associates

CF-A3bWhen and how does a child’s unmarried biological father acquire full parental rights and responsibilities?  A recent Supreme Court of Appeal (SCA) decision illustrates.

Out of Africa – a baby taken overseas without the father’s consent

  1. The mother of a four month old child relocated with him to England without either informing, or seeking permission from, the father.
  1. The parents had never been married to each other, nor did they cohabit or live together in a permanent life partnership.
  1. The father applied to the English courts for an order that the child be returned to South Africa, and a local High Court had to determine whether or not the child’s removal was lawful.
  1. On appeal, the SCA agreed with the High Court that the removal was unlawful in that it had breached the father’s rights as a guardian – you need permission from all of a child’s guardians, or from a court, to get a child’s passport or to take it out of the country.

The three requirements to become a guardian

In summary, our Children’s Act automatically recognises an unmarried father as a guardian if he –

  1. Consents to be identified as the child’s father,
  1. Contributes, or attempts in good faith to contribute, to the child’s upbringing for a reasonable period, and
  1. Contributes, or attempts in good faith to contribute, towards expenses in connection with the maintenance of the child for a reasonable period.

The mother, held the Court, had actively frustrated the father’s efforts at fatherhood, refusing for example to allow him to be present at the birth and then restricting his access to the child.  Moreover the father had visited and interacted with the child regularly, introduced him to his extended family, taken out an endowment policy to cater for his future upbringing, and contributed financially.

On these facts, the father was indeed a co-guardian with full parental rights and responsibilities, and accordingly the child’s removal from South Africa had been unlawful.

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