Johannesburg - The scourge of absent fathers in South Africa has been studied, academically explored and discussed in many forums. This issue has been seen as a major contribution to the disintegration of society and its values.
Over 60% of fathers are absent from the lives of their children. This is according to Statistics South Africa (Stats SA). However, the country has seen a rise in single-male parenting where fathers are more present in their children’s lives than they were in the past.
Social media has seen various users collectively sharing their experiences on the access (in most cases limited) they have to their children.
One still finds mothers who withhold access to their child from fathers, either to punish them when their romantic relationship breaks down, or to try to force the father to pay more spousal or child maintenance. The biggest victims in these scenarios are innocent children.
Earlier this year, the North Gauteng High Court in Pretoria sentenced a mother and a grandmother to 30 days' imprisonment suspended on the condition that they allow a father contact with his daughter.
The court ruled that the mother and the maternal grandmother of the child were in contempt of court by denying and frustrating the father’s parental rights to enjoy contact with his minor child.
According to the University of Johannesburg (UJ) Law Clinic Attorney, Elton Hart, biological fathers automatically acquire full parental responsibility in respect of their children.
“If the child’s mother has denied the father access to their child, an unmarried father can exercise his rights by applying to the court for an order granting him the rights that he wishes for.
“An application for guardianship rights must be lodged at the High Court or the Children’s Court in terms of section 24 of the Children’s Act. If he wishes to obtain care and/or contact rights, such an application may be made at the Children’s Court or the divorce court in terms of section 23 of the Children’s Act,” said Hart.
A father finding himself in this predicament is Johannesburg-based Sello Sekgatlha (39). He said he’d been denied access to his four-year-old son by the mother of the child.
“The courts always favour women. We as men, as fathers, are at a disadvantage. The mother of my child broke up after he was born as things didn’t work out between us. I am in this battle and currently seeking advice as to what steps to take at this point.
“I haven’t been allowed to see my child now for over a year and it frustrates me very much because I want to be a part of his life,” said Sekgatlha.
Karabo Ozah, director of the Centre for Child Law at the University of Pretoria, said raising children well means putting their needs first. Their needs must come before the needs of the father or mother, be they custodial or non-custodial.
“The latest report, the State of South Africa’s Fathers, builds on the 2018 report and offers us a layered and considered account of the role of fathers in the lives of children in South Africa.
“Importantly, the report reminds us that fathers come in different shapes and forms and that what matters the most is the experience of a child in terms of who they consider being their father,” she said.
Ozah said children had a right to have a relationship with both their parents as well as their extended family members – this is reflected in the provisions of the Children’s Act.
“Imperfect as some of the provisions may be, they do provide a means through which disputes pertaining to fathers, including unmarried fathers, can be resolved. Unmarried fathers are enabled by the Children’s Act to apply to courts to have orders that facilitate them playing an active role in their children’s lives,” said Ozah.
She added that courts should, however, be a last resort when there were disputes. “Ideally, we want a world where both parents play a role in the lives of their children. In this regard, the report urges us to embrace mediation as a dispute resolution mechanism that would do more good than harm.”
Working in a space like the Centre for Child Law, where they receive daily queries about disputes concerning care and contact with children from fathers, I support the approach of mediation.
“The only people who lose out when disputes are addressed in an acrimonious manner are the children. We do not live in an ideal world, and the violence towards women and children in our society affects the issues pertaining to the roles of fathers.
“Therefore, addressing the need for fathers to play an active and positive role in the lives of their children intersects with us tackling the high rates of violence against women and children.
The report challenges us to address, in a concrete manner, the barriers – in all their forms – that have created our current situation where the role of fathers in the lives of their children is an exception rather than the norm,” she said.
Factors to be considered:
Factors a court takes into consideration when a father applies for parental responsibilities and rights: In considering an unmarried father’s application for parental responsibilities and rights, the courts will take the following factors into account, in addition to the requirements set out above:
- The best interests of the child;
- The relationship between the unmarried father and the child, which may be ascertained by interviewing the child to determine their attitude towards the relief sought in the application;
- The degree of commitment that the unmarried father has shown towards the child;
- The relationship between the child and another person, such as the mother, and the effect of separating the child from their mother; and,
- Any other factor the court considers relevant, such as whether the unmarried father has a history of violence towards children.