High court ruling delivers a major legal victory for unmarried fathers
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Cape Town – The Centre for Child Law has welcomed the Grahamstown High Court’s reprieve for unmarried fathers who could not register the births of their children.
A full Bench of the Grahamstown High Court on Tuesday decided that section 10 of the Births and Deaths Registration Act was unconstitutional because it did not make provision for unmarried fathers - caring for their children as single parents - to register the children’s births under their surnames without the mother being present.
This followed an appeal brought by the Centre for Child Law, represented by Lawyers for Human Rights.
The matter, which was originally heard in 2018 by a single judge of the high court, sought a declaration of constitutional invalidity of section 10 of the Births and Deaths Registration Act 51 of 1992, together with a declaration of constitutional invalidity of regulation 12 of the Regulations to the Act.
Regulation 12 stated that an application for the birth certificate of a child born to unmarried parents could only be made by the mother of the child.
The full bench found that an unmarried father’s inability to register the birth of a child in his own name, without the presence of the mother, denied children with a legitimate claim to nationality from birth, a birth certificate.
It discriminated against children cared for by unmarried fathers and did not protect their best interests.
The high court declared section 10 unconstitutional and ordered that it be amended to allow for a notice of birth of a child to be given under the surname of an unmarried father. It has given Parliament 24 months to correct the unconstitutionality.
“Children without birth certificates are ‘invisible’. Their lack of recognition in the civil birth registration system exposes them to the risk of being excluded from the education system and from accessing social assistance and health-care.
‘‘They are effectively denied support and assistance considered necessary for their positive growth and development,” the court found.
Centre for Child Law senior attorney Anjuli Maistry said the centre and its clients in this position were pleased that the court had recognised that barring the registration of births of children of unmarried single fathers was arbitrary and unconstitutional.
“The centre is also pleased that the court has recognised the enormity of the consequences for children who face this barrier.
‘‘This finding will now have to be confirmed by the Constitutional Court,” Maistry said.