Section 21 of the Children's Act deals with the right of contact of unmarried fathers.
The right of contact, also known as "access", is defined in section 1(1) of the Act and means:
i. maintaining a personal relationship with the child; and... See More... See More
ii. if the child lives with someone else -
a. communication on a regular basis with the child in person including visiting the child or being visited by the child; or
b. communicating on a regular basis with the child in any other manner including through the post or by telephone or any other form of electronic communication.
Section 18 provides that a person may have either full or specific parental rights and responsibilities in respect of a child. Furthermore, the parental rights and responsibilities a person may have in respect of the child include the responsibility and the right to maintain contact with the child.
In terms of section 21 an unmarried father now has full parental rights and responsibilities in respect of a child born out of wedlock if -
i. at the time of the child's birth he is living with the mother in a permanent life-partnership; or
ii. he, regardless of whether he has lived or is living with the mother,
a. consents to be identified or successfully applies in terms of section 26 (which is not in operation yet) to be identified as the child's father or pays damages in terms of customary law;
b. contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and
c. contributes or has attempted to contribute in good faith to contribute towards expenses in connection with the maintenance to the child for a reasonable period.
In essence section 21 means that an unmarried father has the right of contact to his child if the conditions listed above are met.
If the mother and unmarried father dispute whether or not the above criterion has been fulfilled, the matter has to be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. If either the mother or the unmarried father are dissatisfied with the outcome of the mediation, it can be referred to court for review.
If the unmarried father does not have a right of contact in terms of section 21 or in terms of a court order, he may still be able to acquire a right of contact in terms of an agreement with the mother. The agreement must be in the prescribed format and contain the prescribed particulars. Also, the agreement must be registered with the family advocate or made an order of the High Court or the children's court on application by the parties to the agreement.
Any Magistrate's court is a children's court and will have jurisdiction to hear the matter if the child involved is ordinarily a resident within the area of the court. If more than one child is involved in the matter, the court of the area in which any of those children are ordinarily resident will have jurisdiction.
The family advocate or court will have to be satisfied that the agreement is in the best interests of the child. This requirement is in line with the Constitution which expressly provides that the interests of the child are of paramount importance. When giving effect to the best interests of the child standard, the court will consider: