Anouk Mommer
Fathers of children born out of wedlock will soon have a fair chance to gain access rights. The Minister of Justice has referred a number of important recommendations of the Law Commisssion to Parliament in the form of a draft Bill.
Fathers currently have no rights over children born out of wedlock — only an obligation to pay maintenance until the child is self-supporting.
A father can only gain access rights, custody or guardianship if the mother is incapable of taking care of the child and her parents are unwilling or unable to take on the task.
In December 1990, the Law Commission received a petition from The Unmarried Fathers’ Fight Action (Tuff) to reform the law. The organisation said fathers’ legal position was both unreasonable and unfair. The commission decided to investigate the law and completed its final report early this year.
The commission’s view is that fathers should have the right to apply to court for access rights and the court should grant these rights or even custody or guardianship if it is in the child’s best interests.
The court should investigate, among other things, the relationship between the mother and the natural father, the relationship between the father and the child, and the attitude of the child with regard to the granting of access rights to the natural father.
Tuff spokesman David van Onselen says the recommendation is not ideal as Tuff was campaigning
for automatic access rights for fathers. “There’s no reason not to get automatic access rights, but there is a stigma attached to it, so we won’t get it.”
Helen Starke, director of the National Council for Child and Family Welfare, is in favour of the Bill. “It’s not only the rights of the father that are involved. Children need to know who their natural father is — they never ask to be born out of wedlock. Generally, it is in the best interest of the child if the father has access rights.”
Starke says paternal grandparents will also benefit. “They are often very concerned about the child. If the father has rights, the grandparents have them too. When a father can see his children at weekends he will probably take them to his parents regularly and the child will get a feeling of belonging to a family.”
If the Bill is passed, it will also radically alter the adoption process. It requires that the father of a child born out of wedlock must, if possible, be informed if the mother puts the child up for adoption. He will be given the opportunity to apply for the adoption himself. The court will decide whether to grant the father’s application in accordance with the best interests of the child.
Starke is very pleased with this recommendation. “Right now, a father has no more rights than the man next door. The father must be able to state his case.”
But other social workers are concerned. Said one: “If the father has a say in adoption it can cause problems for welfare. If he says no and they don’t get consensus, what do you do then?
Besides that, in many cases the mother is not sure who the natural father is. So you will have to do tests to see who the real father of the child is. It makes the adoption process much more complicated.”
Finally, the Law Commission recommends the implementation of family courts — rather than the Supreme Court — to deal with matters of this nature to make the proceedings less expensive.