Judgment reserved in case of registration of births of children of unmarried fathers

A nurse attends to a newborn baby. Picture: AP

A nurse attends to a newborn baby. Picture: AP

Published Sep 2, 2020

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Pretoria - Judgment was reserved in the Constitutional Court application by the Centre for Child Law in which it called on Home Affairs to remove the barriers to the registration of births of children of unmarried fathers.

The centre, represented by Lawyers for Human Rights, asked the apex court to confirm a finding of the Grahamstown High Court that section 10 of the Births and Deaths Registration Act was unconstitutional because it created insurmountable barriers to the birth registration of children of unmarried fathers.

The high court earlier noted the impact of the barriers placed by section 10. Section 10 of the act regulates the provision of a surname to a child born to unmarried parents. It provides for the child to receive the mother’s surname only. The father’s surname can be added at the joint request of the father and mother - if the mother consented to this.

The section does not make provision for a child to receive the father’s surname or his details on the birth certificate without the mother’s involvement.

There are a number of reasons why a mother might not be involved in the birth registration process. She may be deceased, have absconded, is undocumented herself or cannot be located, the centre said.

The children are essentially left stateless if they cannot be registered by their unmarried father. The children are also deprived of the ability to access basic rights and services.

That court said “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 educational system and from accessing social assistance and health care.”

That court said they were effectively denied support and assistance considered necessary for their positive growth and development.

The centre, the clients of which are all citizens with valid South African IDs, argued that the matter dealt with a legal provision and practice that has proven to be a fundamental hurdle to children being able to access their right to birth registration and ultimately their right to nationality.

The Concourt was told that children are vulnerable members of society, but even more so if they do not have birth certificates.

The centre asked the court to declare section 10 of the act unconstitutional to the extent that it is inconsistent with the Constitution in not allowing unmarried fathers to register the births of their children under the father’s surname in the absence of the mother.

The centre was also asked to give Parliament time to correct the defects and that an interim regimen applies which will allow unmarried fathers to register the births of their children.

Pretoria News

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