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Outrage South African fathers are still unconstitutionally prejudiced in the current legal system.

Fathers Demand Equal Rights: Why South Africa’s Children Deserve Automatic Equal Contact With Both Parents

The Children’s Act and related legislation are unconstitutional and discriminatory against unmarried fathers and their children in several respects.

Section 10 of the Births and Deaths Registration Act prevented unmarried fathers from registering their child’s birth or giving their surname without the mother’s consent. This was found to unfairly discriminate against unmarried fathers and their children. Children have the right not to face discrimination based on the birth or marital status of their parents. Depriving children of their father’s surname infringes on their right to dignity and makes their best interests paramount.

Sections 20 and 21 of the Children’s Act were identified as unconstitutional by the Commission for Gender Equality for being biased against fathers. Section 21 also places additional legal and financial burdens on black fathers, specifically to access children born out of wedlock. This is blatantly racist and unconstitutional.

Section 40 and Section 4 of the Mediation in Certain Divorce Matters Act were ruled unconstitutional by the Constitutional Court in June 2023 for discriminating between children of married and unmarried parents in having their best interests investigated by the Family Advocate’s office.

The parental leave provisions of employment legislation were also found to discriminate unfairly between categories of parents. The interim order gives all parents equal access to 4 months of parental leave.

The cumulative impact of these judgments is that fathers’ rights have been considerably strengthened, whether they are married, unmarried, biological, or adoptive fathers. Discrimination based on marital status has been found unconstitutional across several laws.

However, further reform is still required for the Children’s Act and family law system, as identified by organizations like Fathers 4 Justice South Africa. Concerns raised include:

  • Prolonged, unnecessary and costly litigation for fathers to gain parental rights
  • Bias against fathers by psychologists, social workers and maintenance officers
  • False allegations of abuse used to deny fathers contact with children
  • No consequences for perjury relating to false protection orders
  • No mandatory mediation, adding to court delays
  • Hostility towards fathers and lack of skills in the Family Advocate’s office and children’s courts

Key reforms are needed:

  1. Automatic, equal, shared 50/50 care, guardianship, and maintenance for fathers, married or unmarried, unless unfit The current system forces fathers to litigate for rights already established as theirs.
  2. Mandatory mediation at all court levels to avoid litigation. End discrimination between married and unmarried fathers.
  3. Address bias in the system against fathers through training and accountability for the professionals involved.
  4. Criminalize parental alienation as child abuse. Recognize the harm it causes children.
  5. Consequences for perjury and false allegations. The balance-power dynamic is deliberately exploited by unethical lawyers. These lawyers advise mothers specifically to make false allegations against the father with the direct intent to destroy the child-father bond

The Constitutional Court has established that unmarried and married fathers have equal rights to parent their children. However, the current statutory framework lags way behind and needs urgent reform. Failure to act continues the violation of fathers’ and children’s rights as identified.
Here are some of the most recent rulings
1. The Constitutional Court affirms the right of children of unmarried fathers to have their births registered by their fathers
2. Centre for Child Law v Director General: Department of Home Affairs and Others (CCT 101/20) [2021] ZACC 31; 2022 (2) SA 131 (CC); 2022 (4) BCLR 478 (CC) (22 September 2021
3. EQUAL LEAVE FOR ALL PARENTS? Van Wyk and Others v Minister of Employment and Labour (2022-017842) [2023] ZAGPJHC 1213 (25 October 2023)
4. Constitutional court ruling on 29 June 2023 advising that the Children Act – specifically Section 40 and Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 are unconstitutional

Further in October of 2019 Fathers 4 Justice South Africa advised the Commission for gender equality that sections 19, 20 and 21 were unconstitutional, The commission released a report When Relations Disentangle circa mid-2021 that sections 20 and 21 were indeed discriminatory. page 56 4th point says the following:
Sections 20 and 21 of the Children’s Act appear to be discriminatory towards fathers, and specifically unmarried fathers. The CGE therefore recommends a revision of these sections and the appropriate amendments to be made and included in the proposed Children’s Amendment Bill currently before Parliament.

F4J SA would like to point out that we submitted numerous presentations to the Department of Social Development (DSD) and have been mentioned in numerous parliamentary announcements in regards to having father rights properly enshrined. F4J SA has sent numerous emails and directly communicated with the portfolio committee offering assistance to speed up the process, all of which has fallen on deaf ears.
Bearing in mind the original request for comment was sent out in 2019. This request for comment was sent out almost 8 years after a high court judgment (circa 2011) instructing the minister to make changes to the foster care portion of the children’s act.
The DSD has submitted these changes to the foster care portion of the Children Act that expose children to even further danger.
At the time of writing this article fathers still sit in limbo, as for the rest of the changes submitted by F4J SA, numerous other father’s rights organisations and individuals, some 5 years later the minister has done nothing to make the necessary changes.

There is no justification to persist with this once the cumulative impact of judgments against existing legislation is recognized. An automatic presumption of equal shared care is the only approach in line with Constitutional Court guidance. Forcing fathers to fight for rights already acknowledged causes financial, emotional and psychological harm.

Urgent reform would demonstrate government commitment to upholding the rights of fathers and children identified by the Constitutional Court as requiring protection. Inaction continues discrimination and hardship identified as unconstitutional, unacceptable and against South Africa’s aspirations for dignity and equality for all.

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