Women of Reverence welcomes Liwalam Jafta as a guest blogger for Fathers Day Month.
Earl Liwalam Jafta (also known as Wawa) was born in the Eastern Cape. He was raised and spent most of his early life and schooling there. He obtained a B Juris (Bachelor of Law) degree from the University of Transkei in 1994 and a LLB (Bachelor of Laws) from the University of Durban-Westville (now University of KwaZulu-Natal) in 1997.
Liwalam started his professional career in 1998 as an intern for Parliamentary Monitoring Group (PMG) in Cape Town monitoring legislative processes in Parliament.
He married Zandile Jafta as a couple they are blessed with 4 children (1 girl and 3 boys).
Liwalam has worked for various organizations including the Legal Resources Centre, Lawyers for Human Rights, Amnesty International South Africa, United Nations (UNHCR), the Road Accident Fund and Eskom Holdings (SOC) Limited. Currently Liwalam is a partner at Ngeno & Mteto Inc, a law firm based in Brooklyn, Pretoria. He also consults for his wife’s firm, Jafta Z Attorneys Inc, as a specialist consultant.
With 20 years’ post admission experience as an attorney, Liwalam enjoys an excellent reputation as a litigator, a mediator, a draftsman, a researcher and as a skillful writer. He uses cost-effective methods to enhance productivity and to provide services in a professional and friendly atmosphere.
Liwalam is also an elder at Grace Covenant Church in Centurion, Pretoria. Both he and Zandile are involved in Grace Covenant’s pro bono (free legal advice) ministry. As a Pastor Liwalam believes the best in people and is committed to helping them discover how they can reign in life through the lavishness of grace. His desire is to help believers and unbelievers alike to embrace and understand their blessedness in Christ.
THE RESPONSIBILITIES AND RIGHTS OF FATHERS OF CHILDREN BORN OUT OF WEDLOCK –
Liwalam Jafta Consulting Attorney at JAFTA Z ATTORNEYS INC.
If you were to ask the average person on the street who they think/believe should make decisions on behalf of a child born out of wedlock, the most likely answer you would receive is it is the mother’s decision. The answer seems self-evident. Certainly a whole range of factors for consideration come into play, for instance, whether the mother is physically and mentally fit and financially capable to care for the child. Assuming that she is, how is the biological father’s position regulated? Would he ever be allowed to make decisions on behalf of his child, such as changing the child’s surname?
For a long time, most fathers of children born out of the wedlock have considered themselves to be without any rights with as far as their children are concerned. Partly, the problem starts at birth. The Births and Deaths Registration Act 51 of 1992 deals with the registration of births and deaths. Section 10 refers specifically to the notice of birth of a child born out of wedlock. It states that the notice shall be given under the surname of the mother, or at the joint request of the mother and the person who acknowledges in writing that he is the father of the child, under the surname of that person. However, often the child will receive the surname of the mother.
The focus of this article is to bring about clarity on whether or not unmarried fathers have any rights relating to their children and the extent of those rights.
I derive this piece from the relevant provisions of the Act, an excellent article on the subject by Prof Carmel R Matthias (Parental responsibilities and rights of unmarried fathers: court decisions and implications for social workers) and from a few other sources as referenced at the end. Towards the end I touch on when such rights can be terminated or suspended.
The Children's Act 38 of 2005 (“the Act”) provides for acquisition of parental responsibilities and rights by unmarried fathers. It also allows for suspension, restriction or termination of these responsibilities and rights. Based on this Act, other relevant legislation and court judgments, this article analyses briefly the rights of fathers.
PARENTAL RESPONSIBILITIES AND RIGHTS
In the first instance the Act places responsibilities before rights. In this way the legislation asserts the importance of parental responsibilities.
The sections of the Children’s Act discussed below speaks of the right and responsibilities towards the children:
Section 18 - allows for fathers who are in a cohabitation relationship with the mother to have an inherent right to contact, care and guardianship;
Section 19 - indicates that a mother, whether married or unmarried, has full rights and responsibilities towards her child;
Section 20 - a married father also has full rights and responsibilities; and
Section 21- regulates the position of an unmarried biological father stating that he will only have automatic parental rights if he is living with the mother in a permanent life partnership and, additionally, consents to being identified as the father.
There are four components of parental responsibilities and rights. These are: -
1) care of a child,
2) contact with a child,
3) acting as a guardian of a child and
4) contributing to the maintenance of a child.
What this means is that an unmarried father could have all four responsibilities and rights or just some of them.
Care of a child (previously referred to as custody) is defined in section 1 of the Act as providing a place suitable for the child to live in conditions that contribute to the wellbeing of the child. Care also includes providing for and guiding a child's education and religious upbringing, and guiding the child's behaviour.
Contact (previously referred to as access) is defined as "maintaining a personal relationship with the child" (section 1). If a parent does not live with the child, and has contact responsibilities and rights, that parent has the responsibility to communicate with the child on a regular basis either by personal contact, or through post or electronic communication (section 1).
To act as a guardian relates to administering and safeguarding a child's property interests and assisting or representing a child in "administrative, contractual and other legal matters" (section 18(3)).
Maintenance responsibilities are not defined in the Act. The common-law meaning of maintenance encompasses provision of basic necessities such as food, clothing, accommodation and medical care.
The section below discusses the ways in which unmarried fathers acquire responsibilities and rights.
UNMARRIED FATHERS' ACQUISITION OF RESPONSIBILITIES AND RIGHTS
Previously all unmarried fathers had to apply to the courts for rights in respect of their children. The current Act allows for some unmarried fathers to automatically acquire parental responsibilities and rights (section 21).
Automatic parental responsibilities and rights
There are two different ways in which a biological unmarried father can acquire full automatic responsibilities and rights. Firstly, he must be living with the mother in a permanent life partnership at the time of the child's birth (section 21(1)(a)). Alternatively, an unmarried father not living in a permanent life partnership with the mother must satisfy the following criteria: he consents to be identified as the father or pays damages in terms of customary law, and he contributes to, or has attempted to contribute to, the child's upbringing for a reasonable period and he contributes to maintenance and expenses of the child for a reasonable period (section 21(b)). Whilst the inclusion of payment of damages reflects positively on the recognition of customary law, this requirement may be excluding fathers who are unable to afford the payment.
Acquiring responsibilities and rights through agreement
An unmarried father who does not meet the criteria stipulated above for automatic acquisition of parental responsibilities and rights can acquire either full or specific parental responsibilities and rights by agreement with the mother of the child, or other person who has parental responsibilities and rights (for example, the grandmother) (section 22). The parental responsibilities and rights agreement must be in the prescribed format (Form 4, DSD Regulations - see Republic of South Africa, 2010) and only takes effect once it is registered with the family advocate, or is made an order of the High Court or children's court.
Acquiring responsibilities and rights through application to court
Unmarried fathers who have not been able to acquire responsibilities and rights automatically or by agreement can apply to court. This can be done in terms of section 23 or section 24. A section 23 application is for assignment of either care or contact. This application can be made to the High Court, divorce court (in divorce matters) or the children's court. In considering section 23 applications, the court is required to take the following into account:
(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other relevant person and the child;
(c) the degree of commitment that the applicant has shown towards the child;
(d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
(e) any other fact that should, in the opinion of the court, be taken into account."
The above criteria imply that a court would require an assessment report before making a determination of care or contact.
In contrast to a section 23 application for care and contact, a section 24 application for guardianship can only be made to the High Court.
TERMINATION, EXTENSION, SUSPENSION OR RESTRICTION OF PARENTAL RESPONSIBILITIES AND RIGHTS
Section 28 of the Act provides that an application to terminate, extend, suspend or restrict parental responsibilities and rights may be made to the High Court, a divorce court (in divorce matters) or a children's court. If a court suspends responsibilities and rights, this suspension cannot be indefinite, but must be linked to "a period" (section 28(1)(a)). The period can be fixed in duration either by reference to time or some future event, such as the person being released from prison, obtaining suitable accommodation to house the child, and the like.
Eligibility to apply
Section 28(3) provides a list of the persons who may apply for the termination, extension, suspension or restriction of parental responsibilities and rights. Firstly, a co-holder of responsibilities and rights may apply (section 28(3)(a)). However, co-holders are first required to attempt to agree on a parenting plan "before seeking the intervention of the court" (section 33(2)). The development of a parenting plan is thus conceptualised as the first attempt to resolve problems before initiating litigation. Parenting plans must comply with the best interests of the child (section 33(4)). The Act further provides that parenting plans must be developed with the assistance of a family advocate, social worker or psychologist.
Secondly, an application may be made by any person having "a sufficient interest in the care, protection, well-being or development of the child" (section 28(3)(b)). So this may include any professional, including social workers as applicants.
Thirdly, applications may be made by the child or any person acting in the child's interests (section 28(3) (c-d)).
In the latter two instances the court has to provide prior approval for a court application. In addition, other persons who may make an application to court are a family advocate or a representative of an "organ of state" (section 28(3)(e)). The latter thus includes social workers who are employed by the Department of Social Development. "Organ of State" as defined in section 239(b)(ii) of the Constitution (Act 108 of 1996) includes an institution "exercising a public power or performing a public function in terms of any legislation...." Thus designated social workers employed by designated child protection organizations can also make applications in terms of section 28(3)(e)).
In the light of the legislation which has now been explained, there is case law dealing with the disputes concerning restriction, termination and suspension of unmarried fathers' responsibilities and rights.
In conclusion, and yes, subject to the confines of the above, fathers have responsibilities and rights. Where there is confusion or conflict, the courts will always have the discretion to make decisions which will be based upon all the circumstances of each case. Ultimately, any decision that will prejudice the child will be susceptible to review.
Therefore, it is not about what the parents want, but rather whether it is in the best interests of the child.
Parental responsibilities and rights of unmarried fathers: court decisions and implications for social workers by Prof Carmel R Matthias - School of Applied Human Sciences, University of KwaZulu-Natal, Durban, South Africa.