Unmarried fathers who want to raise their illegitimate children could have the right to do so, if draft legislation before the Cabinet is approved, reports Rehana Rossouw
JOHN WILLIAMS (25), a printer from Mitchells Plain, is forced to sneak visits with his six-year-old daughter at her Sunday school class. The child’s mother cut off Williams’s access to the child six months ago when he refused to grant permission for her new husband to adopt the child.
The child has been told not to tell her mother of the clandestine visits because she might be kept at home on Sundays and not see her father for months while her parents’ battle rages in the supreme court.
As an unmarried father, he has no automatic right of access to his daughter; his relationship with her was dependent on her mother’s goodwill. But Williams comes from a loving home and still lives with his parents. For him, children must have two parents “for a solid foundation for life.
“I’ve been an excellent father, anyone who knows me can tell. Since my daughter was a few months old, I’ve been collecting her from her mother most weekends and keeping her with me,” he said.
“I’m not saying her mother is incompetent, but we were both 19 years old when she fell pregnant, and she didn’t want motherhood to affect her social life. So I was the one who put off going out weekends and sat with the baby.
“Now there’s a new man on the scene and he doesn’t want a child other people will know is not his. He’s told my child’s mother the only way he’ll accept my daughter is if she has his name. If he’s making such conditions, then he will probably never accept her like a real father. She’s better off with me.”
Williams has provided child support weekly since the little girl was born.
His battle for custody will take a different turn if draft legislation proposed by Justice Minister Dullah Omar to the Cabinet this week passes Parliament’s scrutiny.
The Bill on the Powers of Natural Fathers of Illegitimate Children improves access, custody and guardianship for unmarried fathers.
It interprets the new reality of 1990s men who are increasingly proving they can be equal partners in not only making children but rearing them as well.
At present, natural fathers of illegitimate children do not have any rights to guardianship of their children merely by virtue of their paternity. These rights are only enjoyed by mothers, save in exceptional cases where a court may award guardianship to fathers if it is judged to be in the interest of the child.
“The legal position as it stands has evolved over centuries against the background of the realities of society,” reported the Law Commission after investigating whether natural fathers should have improved access to their children. “The commission is not convinced of any change having taken place that would justify a drastic inversion of that legal position.”
The commission found there were many complaints from unmarried fathers about the high cost of an application to the supreme court to obtain access to their children. It has proposed family courts be established on par with magistrate’s courts.
The draft Bill proposes the court may grant natural fathers access to their illegitimate children if it is satisfied this is in the best interest of the child. The court could set conditions for such access.
If a child is put up for adoption, the natural father will, as far as possible, be informed of any such proceedings and be given the opportunity to apply to adopt the child himself.
This proposal comes too late for unmarried father Lawrie Fraser, who launched a much-publicised attempt to stop the adoption of his unborn child but lost his application last week. The child’s mother, National Symphony Orchestra violinsit Adrianna Naude, opposed his application, and won. The child’s adoptive parents are planning to leave South Africa. The court ruled against his appeal, saying ensuing litigation between him and his former lover would not be in the child’s best interest. His only recourse now is the Constitutional Court.
Kids After Relationships End (Kare), a Cape Town support group for unmarried and divorced parents, welcomed the draft legislation. Kare has, since it was established in 1994, provided advice and support for hundreds of parents deprived of access to their children.
“The most important message we want to get across is that all of this has nothing to do with the parents. It’s about children who have the right to have a healthy, normal relationship with both parents,” said Kare founder and chairman Kevin Brookes.
“Up until now the judicial system has discriminated severely against non-custodial parents, who in most cases are the fathers. Yet, most women work today and men are equally capable of taking kids to school in the morning, collecting them in the evening, feeding them and spending quality time with them at weekends.
‘Some companies even allow men paternity leave, in recognition of the important role they play. So it’s about time the law recognises this as well.”
Family advocate Hester Fouche also welcomed the new legislation, saying it paved the way to settling an “emotional issue” for many couples.
However, she urged the Ministry of Justice to speed up the establishment of family courts so parents did not have to go through the “agony” and expense of a supreme court battle for custody of their children.
John Williams’s name has been changed to protect the identity of his daughter.