THE RIGHTS OF UNDOCUMENTED BIOLOGICAL FATHERS

What is a father’s rights if he is not identified on a birth certificate?

It is a reality in South Africa that many biological father’s details are not added as the ‘father’ on the birth certificates of their children. Such a father can face certain challenges when his name is not reflected on the birth certificate of a child born out of wedlock, for example, he runs the risk of being charged with kidnapping when attempting to travel abroad with the minor child.

Luckily, our law protects fathers facing this problem! This protection comes from section 26 of the Childrens Act which reads that

“(1) A person who is not married to the mother of a child and who is or claims to be the biological father of the child may-

• apply for an amendment to be effected to the registration of birth of the child in terms of section 11 (4) of the Births and Deaths Registration Act, 1992 ( Act 51 of 1992 ), identifying him as the father of the child, if the mother consents to such amendment; or
• apply to a court for an order confirming his paternity of the child, if the mother-
• refuses to consent to such amendment;
• is incompetent to give consent due to mental illness;
• cannot be located; or
• is deceased.”

 It is therefore evident that when the mother does not provide her consent, the father may turn to the courts for relief. This entails a court application in which the father may request costs from the mother in instances where her refusal of consent was unnecessary.

In summary, a biological father not reflected on the child’s birth certificate should take all necessary steps to establish his paternity and rights as a father. The fact that you are not reflected on the birth certificate should not prohibit you from enforcing your rights.

Should you require any assistance with asserting your paternity rights, contact us on 021 8242020 or info@smutsco.co.za