The Office of the Family Advocate
The South African Immigration Act: The Real Implications on You and Your Child
As from the 1st of June, Section 7 of the South African Immigration Act (the Act) and its regulations comes into effect and will be implemented at airports and borders across the country. The other sections of the Act came
In the case where one parent or guardian travels abroad with a minor child, he or she must produce an unabridged birth certificate to the Immigration Officer, and: into effect on 24 May 2014.
i) Consent, in the form of an affidavit, from the other parent, authorising him or her to The Regulations to the Act that will have the most widespread effect on parents and guardians, state as follows: enter or depart from South Africa with the child; or
ii) A court order granting full parental rights and responsibilities or legal guardianship When a child is travelling abroad, the parents, parent, or guardian, are required to produce an unabridged birth certificate to the Immigratiioi)n Officer, when either entering or leaving the Republic of South Africa. The unabridged birth certificate must reflect the particulars of the child and the parents. in respect of the child; or
iii) The death certificate of the other parent registered as a parent of the child on the unabridged birth certificate. Further, in the event that both parents of a child are deceased, the person with whom the child is travelling will be required to obtain permission from the Director-General to do so.
Travelling with a child without the other parent There was uproar when the Act initially came into effect, at the regulations pertaining to parents being required to present their children’s unabridged birth certificates when either entering or leaving the Republic of South Africa.
It appears, however, that most people do not understand the reason for this opposition to the Act, as they are under the impression that they would have to obtain the unabridged birth certificate for all official matters relating to the child regardless of the Act, such as obtaining a passport. The main opposition to the Act, however, involves the requirement of a consent affidavit, and the implication to parental rights as a result thereof, that have the greatest impact on adults travelling abroad with minor children. This will have far reaching repercussions on parents and legal guardians of minor children throughout the country.
Registration of birth and issuing of birth certificates
In order to understand the ramifications of the above, it is important to note that, in terms of the Births and Deaths Registration Act, 1992, all children born in South Africa must be registered within 30 days of their birth. Registration is done by the parent, parents, guardian or any other person legally responsible for the child. The requisite governmental form must be submitted it to the nearest office of the Department of Home Affairs if they are in South Africa, or the nearest South African embassy, mission or consulate, if they are overseas. Once the child’s birth has been registered, an abridged birth certificate will be issued free of charge, usually a day or so after the registration application has been submitted. This will contain only the details of the child and the mother, irrespective of whether the child is born in or out of wedlock. An unabridged birth certificate is only obtained from the Department of Home Affairs by request, and this document reflects not only the child and mother’s names and identity details, but also the father’s name and identity number, if the parents are married. In the event that the parents are unmarried, then the father’s name and identity number will only appear on the unabridged birth certificate with the mother’s consent. A child born within marriage is generally registered under the parents’ married surname. Alternatively the child can be registered under the surnames of the father and mother jointly with a hyphenated surname, where both parents have given consent.
The child’s unabridged birth certificate will then reflect not only the child and the mother’s names, surnames and identity numbers but also the name and identity number of the father of the child. Children born out of wedlock are registered under the surname of the mother only, unless the biological father acknowledges paternity of the child and both the father and the mother consent to the registration of the child under the father’s surname. In this case hyphenating is not allowed. The unabridged birth certificate of a child born out of wedlock will reflect only the mother’s name and identity number, unless she and the father consent to the father being named thereon.
Ramifications for parents entering or exiting South Africa
Prior to the Act coming into effect, parents and/or guardians were only required to obtain an unabridged birth certificate for a minor child in order to obtain a passport the child, and nothing further was required. Thus, in instances where an unmarried father was included on the child’s unabridged birth certificate, his consent was only required in order to enable the mother to obtain the passport, but was not required each time the mother attempted to leave the country, as is now the case. This will create huge problems for mothers who no longer have relationships with the fathers of their children which, in turn, may lead to a situation where unmarried mothers are less likely to include the fathers of their children on their unabridged birth certificates. This could lead to even more problems for biological fathers to have their parental rights recognized.
Further implications of the Act
In addition to the problem that parents travelling with children are going to face, legal guardians of children now face an even bigger issue: that they are obliged to either present a Court Order awarding them guardianship of the child in question or, if both parents are deceased, to obtain permission to travel with the child from the Director-General of Home Affairs. It thus seems that it will be imperative for a person appointed as a child’s guardian in terms of a Will to apply to the relevant High Court for an order in this regard. The reason for this is that only the High Court can confer guardianship, as the Children’s Court and Magistrates Court are not empowered to do so. An application to the High Court of this nature will generally be time- consuming and expensive. Further, as required in any matter regarding a minor child, the Family Advocate’s Office will be required to confirm that such an order will be in the child’s best interests.
Long term implications of the Act
Unmarried mothers are also going to have to be much more careful as to whether or not they include their child or children’s father on the birth certificates. The reason for this is that unfortunately, in the case of a disinterested and absent father; they are going to be affected by that decision for the rest of their lives. Unmarried fathers will also have to insist that they are included on the birth certificates of their children at the time of the birth of the child, so as to avoid a situation where the mother is able to simply remove the minor child from the country without their permission or consent. All legal guardians of children, whose parents have either abandoned the minor child or who have died, will have to take steps to secure their freedom of movement and ability to travel overseas with the minor child. They will have to make an application to the relevant High Court for guardianship orders so as not to limit their own freedom of movement by being unable to travel abroad with a minor child.
Thus, the Act is intended to make it difficult for parties to remove children from the Republic of South Africa without the requisite knowledge and consent of other parties associated with such children. However, all forms of international travel will be made difficult for anyone accompanying minor children, particularly for legal guardians and single parents.
Too many children are forcibly removed from their mothers
http://www.theguardian.com/commentisfree/2014/jun/23/uk-children-forcibly-removed-mothers accessed on 22 July 2015.
Helping unstable mothers raise the babies they love is surely sometimes a better option than the devastation of removal
'Forcible removal of their children leaves mothers profoundly bereft: the only way to climb out of that abyss is to get pregnant again.' The emergence of court records revealing that 7,143 mothers have had 22,790 children removed in the last seven years is profoundly disturbing. It is traumatic enough for both mother and baby when this happens once – but horrifying to discover that the pattern is so often repeating itself. The BBC has discovered that it is not uncommon for two, three or four children to be removed from the same mother, and sometimes many more. Why is it happening and what can be done to break this miserable and destructive cycle?
Judges in the family court, though less visible than social workers, can face the same "damned if they do, damned if they don't" criticism in these cases. The consequences of removing or not removing can rarely be predicted with scientific certainty. What is certain though is that many cases involve drugs, alcohol and/or mental health problems. Often the mothers have been raised in the same unstable and sometimes abusive environments that their babies are being born into. While there are cases of mothers who were brought up in chaotic environments who go on to be excellent parents, for many, a lousy upbringing increases the odds of repeating a destructive cycle.
It is also certain that many of the mothers who have their children removed love their offspring dearly, even if they are unable to provide adequate care for them. Forcible removal of their children leaves them profoundly bereft: the only way to climb out of that abyss is to get pregnant again.
Having a child forcibly removed can intensify the downward spiral in search of the oblivion that drink and drugs can momentarily provide. But conversely, forced removal can also be the only trigger that is effective in helping a mother to clamber out of the black hole. In her memoir of her time in prostitution, addicted to class A drugs – which led to the removal of her beloved children – Rhea Coombs said that the only factor strong enough to push her away from drugs and sex work was the incentive of being reunited with her children. She did in fact leave sex work and get clean: and she did get her kids back.
For mothers who have the odds stacked against them it takes time to turn their lives around, but time is the one thing that is often in short supply. If a child's life is at risk, professionals cannot afford to adopt a wait-and-see approach. But the speed with which children, often those who have just emerged from the womb, are removed from their mothers, means that they only have the slenderest of windows to break a destructive cycle and give their children a good and loving start.
The US's controversial Project Prevention takes the view that there is no point in giving mothers who have drug and alcohol problems a chance, because it's a foregone conclusion that they will be rubbish parents. In a brisk transaction, the project pays drug and alcohol-using women to get sterilised or use long-term contraception so that they avoid bringing children into the world at all. To date they have paid more than 4,000 women in 50 US states to stop procreating. Critics accuse founder Barbara Harris of social engineering and eugenics.
In the UK, two initiatives give mothers rather more credit than Project Prevention for their ability to turn their lives around. The Strengthening Families Project, funded by Salford council, is run by a community midwife and a specialist social worker. They warn the women of the risks to themselves and their babies of abusing drugs and alcohol but, very importantly also provide positive support and instruction, something that may be alien to them. The family drug and alcohol court has been running since 2008 and has had encouraging results – it has helped 35% of mothers to reunite with their children, compared with 19% in the ordinary family courts.
While programmes offering guidance and support won't prevent all child removals, having many more of them on offer to troubled mothers could go a long way towards helping them successfully raise the babies they love. And for many of these women, who have not been dealt the best cards in life, it may be the first time they have had anyone encouraging them, believing in them and nurturing their confidence – giving them the support they need to become successful, loving mothers.
Free DNA tests piloted in family courts to clear up paternity disputes
http://www.theguardian.com/law/2014/jun/26/free-dna-tests-piloted-family-courts-paternity-disputes accessed on 22 July 2015.
Justice minister Simon Hughes reveals moves aimed at tackling influx of unrepresented litigants following cuts to legal aid A DNA swab test. Simon Hughes said: 'We are funding DNA tests which will sort out the problem about who the father is rather than having three days of legal argument.'
Free DNA tests are being provided to speed up resolution of disputes over the paternity of children, the justice minister Simon Hughes has revealed.
Pilot programmes launched in Taunton and Bristol are part of an initiative aimed at tackling problems in family courts, which have been inundated with unrepresented litigants following cuts to legal aid.
Speaking at a Westminster Legal Policy Forum debate in London, Hughes called for all children over the age of 10 to be allowed to participate in separation cases so that their views might be considered and suggested that family courts should become advice centres to avoid excessive recourse to lawyers.
Those who repeatedly appear in the family courts would, according to the minister, in future be helped by the government's Troubled Families Unit, headed by Louise Casey, which was scheduled to expand its workload from 120,000 to 400,000 families.
Hughes said: "We are funding DNA tests which will sort out the problem about who the father is rather than having three days of legal argument."
The Taunton and Bristol pilots, involving one rural and one urban area, was also providing free hair tests – used in alcohol and drug courts to assess whether individuals have been abusing alcohol or drugs.
The purpose was, similarly, to provide clear answers to common allegations and avoid hours of costly legal argument and delay. The project is being run by the Children and Family Court Advisory and Support Service (Cafcass), but funded by the Ministry of Justice.
The president of the family court division, Sir James Munby, was recently forced to adjourn a contact case because the father, a convicted sex offender, was unrepresented and unable to fund an expert to challenge the mother's evidence. The judge has asked the MoJ to solve the problem.
Susan Jacklin QC, chair of the Family Law Bar Association, said many litigants in person felt "completely at sea, nervous, anxious and stressed" when appearing without legal representation."Cases are taking longer and longer," she told the conference. "I have heard from district judges who speak of how they are hating their jobs. A judge is there to make decisions, not advise. Lines are being blurred."
Promises that exceptional funding for legal aid in difficult cases would be provided were not working, she added. Fathers were being unfairly denied access to children because of the problems. But Ray Barry, of the Equal Parenting Alliance, blamed legal aid for extending courtroom disputes. "Legal aid was sometimes the fuel that kept disputes burning," he said. "There's no reason why the taxpayer should fund a dispute between two individuals."
Addressing the Westminster conference, Hughes explained: "It's better in my view that people don't have to go to court at all. We should move to a situation where family matters are resolved without court proceedings. That might mean there's less work for lawyers. I don't think that the state should be there to justify work for lawyers."
Too many experts have also been used in the past, Hughes added. "It's scandalous and a tragedy that we are in the position where … there are people who are coming back to the family courts up to 14 times to be the subject of care proceedings." Such families needed more neonatal training and support, he said. Those who repeatedly appeared in the family courts would be among those referred to the government's Troubled Families Unit in future.
"A lot of the services we need are not court services but advice for people about what rights they have. My vision of the courts is that they [also become] family advice centres so that people can be pointed in the right direction." In cases involving children over the age 10, Hughes said, "the children need to be heard; they should be able to talk to the court to say what they want – so that their issues and requirements are seen to come first."
http://www.divorcelaws.co.za/new-family-law-and-divorce-law-cases accessed on 22 July 2015
The Constitutional Court handed down judgment in an appeal in the case of DE v RH 182/14 concerning the continued existence of a spouse’s right to claim damages for adultery against a third party.
The applicant, Mr DE, sued the respondent, Mr RH, in the North Gauteng High Court, Pretoria for damages on the basis that Mr RH had an extra-marital affair with Mr DE’s former wife, Ms H. Mr DE had launched his action based on the general remedy for the infringement of personality rights, specifically claiming for insult to his personality and the loss of comfort and society of his spouse. Mr DE was successful in respect of the claim for insult but the High Court found that the loss of comfort and society of his spouse could not be proved because there was no evidence to show that the adultery had caused the breakup of Mr DE’s marriage.
Mr RH appealed against these findings to the Supreme Court of Appeal. That Court recognised that our law currently allows for the claim of insult against a third party in the case of adultery. However, of its own accord, it raised the question whether the claim should continue to exist. In dealing with this issue, the Supreme Court of Appeal judgment canvassed the historical trajectory of the claim, foreign law, changing societal norms and the detrimental financial and emotional costs of an action of this nature. It concluded that in light of the changing values of our society, the claim based on adultery had become outdated and could no longer be sustained. The Court therefore abolished it.
The facts before the Supreme Court of Appeal was inter alia that serious problems existed in the marriage between the Mr DE and Ms H. Mr DE demonstrated a profound lack of love, affection, caring and concern for Ms H’s physical, emotional and spiritual well being. He behaved in an abusive manner towards Ms H. This included evidence on one occasion of a physical assault and on another, of marital rape. Ms H took a decision to end the marriage and she left the matrimonial home with her children on 23 March 2010, having informed Mr DE that she was no longer prepared to continue with the marriage. Evidence led at the trial showed that a romantic attachment had developed between Mr RH and Ms H only after she had left the marital home. It was also common cause that a sexual relationship between Mr RH and Ms H had developed only after the consortium in the marriage had ended.
The delict of adultery was abolished in many foreign jurisdictions such as England, Scotland, Canada, Australia, France, the Netherlands, Germany and most states of the United States of America (which countries have no less regard for the sanctity of marriage than any other parts of the world), have recognized and accepted that the action is not desirable or necessary to protect the institution of marriage.
The Constitutional Court was of the opinion that love and respect are foundations of a solid marriage and not legal rules. Those are within the control of the spouses themselves. After all, it is they who undertook to be truthful and faithful to each other. The Constitutional Court was further of the view that the obligation pre-eminently rests on the spouses themselves to protect and maintain their marriage relationship. Subject to some cultural variations, love, trust and fidelity are the bedrock on which a marriage relationship is built. Whittle or take that away, the relationship may perish. It is the spouses that must avert anything negative befalling the foundation of their marriage.
The Court was further of the opinion that the he delictual claim is particularly invasive of, and violates the right to, privacy. The Supreme Court of Appeal dealt with the abusive, embarrassing and demeaning questioning that Ms H suffered in the High Court. She was “made to suffer the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion”. Likewise, in order to defend a delictual claim based on adultery, the third party is placed in the invidious position of having to expose details of his or her intimate interaction – including sexual relations – with the adulterous spouse. That goes to the core of the private nature of an intimate relationship.
The court further made the point that our modern day idea of the sacrosanctity of marriage and its concomitant protection by the law are by no means what they were in, say, the times of King Henry VIII, who – because of Roman Catholic tenets, at a time when there was not much separation between church and state – could not even get a divorce and was forced to decree that thence forth the Church of England would be separated from the papal authority of the Roman Catholic Church. Needless to say, he was then free to follow his heart’s desire, although he was excommunicated by the Pope for this conduct. We have come a long way from those strictures and gymnastics. That is because times are changing, and the law – though still recognising the sanctity of marriage – has moved with the times both in its conception of the institution of marriage and the punitive extremes to which it will go to protect it.
Counsel for Mr RH, Advocates Kuny and Ndlokovane, correctly argued that there is a glaring inconsistency in the action for adultery in that it is available against the third party only and not against the adulterous spouse, who is clearly a co perpetrator, and being the party who has promised fidelity, is arguable more legally and morally culpable than the third party. They also argued that the action for adultery is often used by an aggrieved spouse in a divorce action as a weapon in terrorem to exact a settlement which such party might not otherwise be capable of achieving and it often leads to abuse. They also highlighted in argument the obvious difficulties that would arise in determining what constitutes adultery between same-sex partners. It is also arguably not possible to apply the action equally and in a non-discriminatory manner in polygamous marriages which are legally recognised under our constitution and which incorporate asymmetrical concepts of sexual fidelity.
Advocate Dave Smith SC, who appeared for the ex-husband in the high court and in the appeal court, had argued for the important role that a civil claim for adultery played. It sent out a message that marriage was ‘holy’ and that outsiders should not interfere. Adultery was a sin according to all the major religions. He also argued that such a claim was a “release mechanism” that gave the “injured spouse” a legal way of “soothing his or her feelings.”
In his introductory remarks during judgement, Justice Mbuyiseli Madlanga, writing for all members of the court, said the decision was “undoubtedly of historical moment” in South Africa. Chief Justice Mogoeng Mogoeng agreed, but, with Justice Edwin Cameron, he added an additional brief judgment saying that the law had a role in supporting marriage by helping ensure that barriers to family life were removed, but “The rest is in the hands of the parties to the marriage. The law cannot shore up or sustain an otherwise ailing marriage,” he said. “It continues to be the primary responsibility of the parties to maintain their marriage.” “For this reason the continued existence of a claim for damages for adultery by the ‘innocent spouse’ adds nothing to the lifeblood of a solid and peaceful marriage,” the Chief Justice said.
There is no evidence that the action for adultery would deter a spouse in a marriage from committing adultery nor would it deter a third party from committing adultery with a married person. It has long been recognized that adultery is a symptom of the breakdown of the marital relationship and not the cause. In 1978, the Law Commission on divorce, which was responsible for the present Divorce Act 70 of 1979 (introducing the no-fault system of divorce), stated that “Adultery and malicious desertion are for the most part only the ultimate acts which indicate that a marriage has broken down. They are more often the effects of a marriage having broken down than the causes of breakdown”
http://www.divorcelaws.co.za/new-family-law-and-divorce-law-cases accessed 22 July 2015.
In a recent case in the UK a father was at the centre of a case of paternity fraud after he was tricked into raising another man’s child as his own for 6 years. In this case the Judge ruled that the man’s ex-wife could not be forced to hand back tens of thousands of pounds in maintenance payments even though they were the result of “fraud”. The man was cheated by his ex-wife, into believing that the baby she conceived through fertility treatment at a clinic in Spain was his child. In fact, the child, was the product of a sperm sample provided by her former boyfriend instead of one he had given. The judge in the case ruled that the man had been the victim of “clear deceit and fraud” and ordered his ex-wife to pay him £10,000 in damages for emotional harm, as well as refunding some housing expenses and paying legal bills – which came to about £100,000 in total. The court did not order her to pay back the £60,000 she received in child maintenance from the man after they separated – even though the court found she must always have known he was not the real father. Case law determined that child maintenance cannot be recovered in such cases. Crucially, the finding in his favour does nothing to bring back the son he once had.
In a recent case in the United States a woman found out that her twins had been fathered by two different men in a paternity case. The woman was applying for public assistance and named her romantic partner as the father of both children. In the course of her testimony in court, she admitted to sleeping with a different man about a week after she believed she had conceived the twins with her partner. This prompted a paternity test, which revealed that each man had fathered one of the twins. The original partner was then ordered to only pay child support for one of the children. This kind of occurrence is rare, but not unheard of a doctor who testified in the case gave evidence that 1 in 13,000 paternity cases for twins involve two different fathers.
Studies that was conducted in Australia has shown that between 10% and 16% of the general population are victims of paternity deceit. In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.
In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly 1 in 5 of the contested paternity claims it handled cleared the man originally named as the father. Its figures for 2007-2008 show that out of 3,474 DNA paternity tests ordered, 661 (19%) named the wrong man. Government-approved DNA testing kits, have exposed 4,854 false paternity claims since records began in 1998-99. A British survey conducted between 1988 and 1996 confirmed the 10% figure. A recent poll in the UK on a survey on attitudes to truth and relationships has found that 19 out of 20 women confess lying to their partners or husbands. 83% owned up to telling “big, life-changing lies,” with 13% saying they did so often. Half said that if they became pregnant by another man but wanted to stay with their partner, they would lie about the baby’s real father. 42% would lie about contraception in order to get pregnant, no matter the wishes of their partner.
In the United States it is alleged that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. The exclusion rate however includes a number of factors. One is a woman may allege several men as possible fathers because she was sexually active with these individuals. These are not men who were misled into believing they were fathers and then later discover they are not. The testing merely sorts out which man is the biological father and excludes the others.
In 2012, a woman was arrested in KwaZulu Natal after a mother told a Durban regional court magistrate that she had handed over R65 000 to the woman who was a Facebook friend she had never met who was supposed to be helping her to manipulate a paternity test. The mother wanted the test to reflect her present boyfriend as the biological father of her six-month-old baby, not the real father who she considered “unstable”. The mother who pleaded guilty to attempted fraud and received a 3 year suspended sentence, testified that the woman had initially asked for R1 500 but, thereafter kept on demanding more money, not only for herself, but for “blackmailers” who wanted money for their silence and others including two magistrates who were said to be helping her. Sick of “living a lie” the mother then went to the police. The woman pleaded guilty to five charges of fraud, forgery, uttering, extortion and crimen injuria and was sentenced to 5 years imprisonment.
Issues regarding paternity have been dealt with in a number of cases in the South African Courts. The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.
In 2010 in the case of YM v LB 2010 ZASCA 106 our Supreme Court of Appeal (SCA) was given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal. The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all. The SCA found that where the paternity of the child has been shown on a balance of probabilities, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt. The court also stated that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof and that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child. The SCA also noted that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by a judge in an earlier case that it may not always be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized.
The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations.
Section 37 of our Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.
The unreported case of Nel v Jonker (WCHC) case number A653/2009 was the first reported judgment dealing specifically with misattributed paternity. The ex-husband had regarded the child, born four months into his marriage with the mother, as his biological child and had maintained her as such. Only 16 years after the birth, and 10 years after the divorce, did he discover through DNA testing that the child had actually been fathered by another man. The maintenance court varied the divorce order by deleting his (future) maintenance obligations towards the child since he was not the biological father of the child. The court of first instance subsequently awarded damages to the cuckolded ex-husband for the R50 000 that he paid towards the child’s maintenance since the divorce. This order was taken on appeal. On appeal the Judge overturned the damage award that the maintenance court granted to the ex-husband. The ex-husband argued that he supported the child in the bona fide and reasonable belief that it was due and payable. The Judge found that the ex-husband did not meet all the requirements of the claim, specifically, his error in paying maintenance was found to be unreasonable and that there was no proof that the mother of the child was enriched by the maintenance payments. In adding, the court noted that prescription could have reduced his claim, but as it was not pleaded it was not necessary to consider. With regard to considerations of public policy the court did not find it necessary to make a final decision in this regard. The reading of the case leaves one with a feeling of dissatisfaction because the set of facts was not ideal to deal with this complex issue, and partly because of the fact that the pleadings and evidence were deficient, making a precedential judgment on misattributed paternity impossible.
What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child, blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. Looking at jurisdictions around the world, there are various ways to deal with the question of refunding of the maintenance payments. On the one side of the scale certain jurisdictions by legislation deny such an action mostly on the best interests of the child. It has also been argued that where a man accepts fatherhood, he cannot recant his fatherhood merely based on the fact that he is not the biological father – fatherhood after all comprehends much more than just biology. In other jurisdictions legislation and the courts provide for a re-claim of maintenance contributions. Which side of the scale South African courts will lean towards in future remains to be seen.
A last question that can be asked is whether the mother of a child can be prosecuted for the crime of (paternity) fraud or whether public policy should exclude this possibility? Fact is that it remains fraud and such actions should be prosecuted. The scenario is becoming more common around the world and also in South Africa. With DNA tests becoming cheaper and more available, the courts or the legislature will have to deal with this problem soon.
http://www.divorcelaws.co.za/new-family-law-and-divorce-law-cases accessed 22 June 2015.
Section 21(1)(b) of the Children’s Act 38 of 2005 (the Act) provides, that an unmarried father of a child, regardless of whether he has lived or is living with the mother of the child, acquires full parental rights and responsibilities over the child if he –
‘(i) consents to be identified or successfully applies to in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period’.
In KLVC v SDI and Another  1 All SA 532 (SCA) the issue the court had to deal with was whether the father, had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over his minor child. During the father’s temporary trip overseas, the mother relocated the four-month-old minor from Durban to the UK without the consent of the father or authority of a court. As a result the father instituted proceedings in a UK court for return of the child to South Africa. The UK court was unable to decide if the removal of the child from South Africa was wrongful in that it was done without the required consent of the father or authority of court. It accordingly referred the question for determination by a South African court.
The High Court found that the father had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over the minor child. The mother then appealed but her appeal was dismissed with costs by the Supreme Court of Appeal.
The Supreme Court of Appeal judges held that determining whether or not an unmarried father had met the requirements of the section was an entirely factual enquiry. It was a type of matter, which could only be disposed of on a consideration of all the relevant factual circumstances of the case. An unmarried father either acquired parental rights or responsibilities or did not. Judicial discretion had no role in such an enquiry. The concept of a contribution or attempt in good faith to contribute to the child’s upbringing for a reasonable period was an elastic one, which permitted a range of considerations culminating in a value judgment as to whether what was done could be said to be a contribution or a good faith attempt at contributing to the child’s upbringing over a period which, in the circumstances, was reasonable.
In this case the father had demonstrated sufficiently that he had acquired full parental responsibilities in respect of the minor. As co-guardian, his consent was required prior to the removal of the child from South Africa by the mother. By removing the minor without such consent the mother acted in breach of the father’s parental rights and responsibilities.
Botswana High Court Upholds Children’s Best Interests in adoption
www.southernafricalitigationcentre.org/2015/02/02/news-release-botswana-high-court-upholds-childrens-best-interests-in-adoption/ accessed on
30th June 2015.
In February 2015 Botswana High Court delivered a landmark judgement in a Constitutional challenge to the Adoption of Children’s Act. The Act allowed that a child who is born out of the wedlock could be adopted by a third party without the consent of the child’s biological father.
The applicant, the biological father of a child born out of wedlock, argued that the Act violated his constitutional rights in a manner that is not in the child’s best interests. The government argued that the Act was constitutionally justified.
The judge held that it is irrational to discriminate against unwed fathers. He declared that to the extent that the Adoption of Children Act did not require the consent of an unwed father prior to adoption, it is unconstitutional.
This case will not only enhance Botswana jurisprudence; it will also impact on people’s lives. At the heart of any adoption case henceforth, the primary factor will be what is in the child’s best interest.
The judgment brought Botswana’s adoption laws in line with International laws as well as the more progressive Children’s Act of 2009 that places the child’s best interests at the heart of issues concerning the child. International consistently emphasises that the focus should be on the child’s best interests. The Court has integrated this approach into Botswana’s adoption laws in a way which spares from discrimination fathers who play a positive role in their children’s lives.
New South African Law to blacklist child maintenance defaulters
The article was published by news24
The Maintenance Amendment Bill has been passed by the National Assembly that parents who default on child maintenance be blacklisted and blocked from getting credit while owing maintenance.
The Bill was introduced by the Department’s deputy minister Mr John who indicated that child maintenance was one of the department’s major priorities.
According to the bill:
- A beneficiary will be able to claim maintenance where they work and not only where they live, which is the current situation. This would make it easier for beneficiaries to go to the maintenance court during working hours.
- If the person from whom the maintenance is sought can’t be traced, the court can grant an order directing electronic communication service providers [cellphone service providers] to give the court contact information of the person who may be affected by the order of the maintenance. This direction may only be used if the court is satisfied that all reasonable efforts to locate the person in question have failed.
- There is a duty being put on maintenance courts to complete their enquiries as speedily as possible. This provision is for interim orders for maintenance pending the finalisation of the matter.
- Another provision is that the views of the person who is obliged to pay maintenance must be sought.
- If a person has defaulted on paying maintenance, their personal details would be submitted to the credit bureau. This would prevent maintenance defaulters from continuing to receive credit while owing maintenance.
The bill will be sent to the National Council of Provinces for concurrence.
Parental abduction: the struggle to get a child taken abroad back
This article was published by the European Parliament News.
When one parent unlawfully takes her or his child abroad, the other is left with a difficult judicial battle. To ensure the prompt return of abducted children, more than 90 states, including all EU countries, are signed up to the 1980 Hague Convention, which offers a common legal framework.
MEPs had propose that EU member states formally recognise the accession of Gabon, Andorra, the Seychelles, Russia, Albania, Singapore, Morocco and Armenia to the Hague Child Abduction Convention.
Heidi Hautala, indicated that Family law has not been harmonised in the EU, and suggested that some steps should be taken to rectify that. He further indicated that the harmonisation or at least clarification of the key concepts such as habitual residence or the custody rights could help member states to resolve these child abduction cases more efficiently.
In 1987 the Parliament created the office of EP mediator for international parental child abduction. The current mediator is Mairead McGuinness, an Irish member of the EPP group. She said the role was about keeping a watchful eye on the evolving situation of child abductions and ensuring that the rights of the child are upheld while parents come to mediated settlements about their children.
"The best interest of the child is very often lost when parents are no longer on speaking terms or disagree about where a child should be reared. In these cases we need clear guidelines and legal certainty. " said McGuinness.
The mother who adopted her own child
This story was reported on the Victoria Derbyshire programme, which is broadcasted from 09:15-11:00 BST on the BBC News Channel.
The number of British children abducted by their parents and taken abroad has risen dramatically. There's a huge emotional cost for all involved.
Ami is the name of the mother who became an international abductor who adopted her son from UK to India.
She doesn't accept this title but says she was aware she was breaking the law, but she did not know what the consequences of breaking that law would be. Ami is one of a growing number of parents who have abducted their own child by taking them overseas.
UK cases of international child abduction and custody battles have increased dramatically. According to figures obtained under the Freedom of Information Act, there were 477 recorded cases in 2014 - more than double the 2005 figure of 226.
More problematic is the increase in abduction to countries not signed up to the Hague convention - an international agreement on the quick return of children. It means there is little UK authorities can do. Pakistan and India were the most common non-Hague destinations, followed by Somalia, Nigeria and Egypt.
More relationship break-ups, ease of travel and an increase in cross-border relationships are the main reasons cited for the rise. Trying to get them back isn't easy.
Ami had married a British Indian man, who she met on an online Asian matrimonial site. Ami says initially he seemed like a perfect match, she moved to the UK to live with him and got pregnant quicker than expected.
But Ami says her husband became controlling and would isolate her. He wouldn't talk to her and wouldn't let her talk to her family. Their relationship fell apart. Ami's husband said he wanted a divorce and she says she feared he would try and take her child away. In the end Ami left the house leaving in a note saying she was going to stay with friends. But after a few weeks, far from home, she says she ran out of people who could help.
Now Ami is stuck. She doesn't want to come back to the UK and so is trying to get custody of Anish through the Indian courts. Her ex-husband knows where she is - she has to report to court in Bangalore every two weeks and there is an order telling her to return to the UK.
In cases like this it's not always obvious who is to blame - many details are only known by the two people involved in the relationship - but in the end, it's the children who suffer the most.
Safraz Khan knows this only too well. His daughter Aamina was kidnapped by her mother four years ago. He has travelled to Pakistan five times to look for his daughter because there are records of her and her mother entering the country. But he still has no idea where she is.
Safraz is left waiting, worried his daughter will forget who is. He has re-married and had two more children but says it's harder to bond with them because of the loss of Aamina. But he feels as a father he's not got the sympathy a mum may have got in the same situation. There is a perception that it's largely fathers who abduct their own children, but according to Reunite 70% of parents who carry out abductions are mothers.
Rameez was kidnapped by his mother, Mohammed's ex-wife, and taken to the United Arab Emirates when he was five. Because the country has not signed up to the Hague convention there was no system in place to locate Rameez and get him back. Sitting at the kitchen table, piles of court documents in front of him, Mohammad explains to how he started his own search.
He said he used any means possible. He sent an email to his mum and there's a way of tracing an email, it's not illegal, so that's what he did. He got an IP address for somewhere in Sharjah in the UAE so he contacted his cousin in Dubai. He went over, located them and followed them home. Mohammed now has full custody of his son, but the boy still sees his mother. Mohammed says he doesn't want Rameez to ever resent him for keeping him away from her so they have limited contact.
The mothers fighting to get their children back home again
Published at www.the guardian.com accessed on 30 June 2015
This article is about women facing a stark choice between being prosecuted for abduction or accused of child abandonment all because they took their family to a foreign country and split from their partners.
These women call themselves Expat Stuck Mums, this is a group of women who are all battling for the right to take their children home from a foreign country, under a sometimes baffling international legal convention. And their numbers are growing. At the root of their problem is what happens when a couple from the same country split up after a move abroad, and one parent decides they want to stay in the new country.
The Hague convention on the Civil Aspects of International Parental Child Abduction 1980 stipulates that one parent cannot take a child from its country of “habitual residence” without the consent of the other parent, and that any request to leave the country must be settled in the family court of that country.
This law does not take in to account short-term moves or trial migrations, and there is no fixed definition of what constitutes a child’s habitual residence: in some cases it can change the moment a plane touches the ground on foreign soil. It depends on individual judges, often in small courts in rural areas where these sorts of family disputes are new and unfamiliar to local cultures. For the Expat Stuck Mums, they face being prosecuted for parental child abduction if they return home with their children, or accused of abandoning them if they go home alone to try to fight the legal system from their home country.
Increasingly mobile lifestyles led to a 45% increase in abduction cases bought under the Hague convention between 2003 and 2008, involving at least 5,000 children. This means that growing numbers of parents – the vast majority of whom are mothers – are being forced to return to foreign countries with their children where they must fight for permission for all of them to return home. Experts say another big increase will be revealed in the 2017 review of the Hague convention.
Family cases going through the foreign courts take, on average, two to five years to be resolved and can cost tens of thousands of pounds. Expat Stuck Mums is campaigning for a two-year period where same-nationality families retain the right to return home without permission from a foreign court.
The Law Commission recently recommended strengthening the law on international kidnapping, meaning that parents who abduct their children will face 14 years in prison. The new government must respond by mid-August.
These British mums all moved abroad with their families, naively believing that as British citizens with British children they could move home again anytime. Last year alone, more than 500 children were abducted from the UK by one of their parents.
Australian children reunited with mother after being abducted by
Published at www.abc.net.au/news/ access 30 June 2015
Two Australian children who were abducted by their father and taken to Afghanistan two-and-a-half years ago have been returned to their mother in an emotional reunion at Perth Airport.
Eight-year-old Aliah and five-year-old Faisal (not their real names) were brought back to Australia after US lawyer Kimberley Motley spent months trying to track them down.
"These two kids have unfortunately been missing since 2012 and no-one knew where exactly they were, which country they were in," Ms Motley said.
After a global search, Ms Motley found the children last week living in Afghanistan with people who were not their relatives. Their father had left Afghanistan before the children were found. Their mother had not seen them since 2012.
With the help of the Western Australian Family Court and Legal Aid, Ms Motley and the children’s mother were able to get the support of Afghan authorities to find and retrieve the children. According to the Coalition of Parents of Abducted Children support group, Australia has one of the highest rates of international parental child abduction in the world.
"About 300 children [per year] or almost one child a day is taken out of Australia to other countries without the consent of the other parent," the group's founder Ken Thompson said. He said criminalising international parental child abductions would help reduce the number of cases and make it easier for parents to get their children back.
"Australia is one of the few countries where it is not a criminal offence and by not being a criminal offence it makes it extremely difficult for parents whose children have been abducted to locate the child," he said. "The parent has to act as the investigator, the parent has to act as the lawyer, the parent has to spend enormous amounts of money to gain access to information that might lead to the location of their child. "And that information is information that is freely available to the Australian Federal Police but their hands are tied because they can't act because it is not a criminal offence."
He said children who were abducted abroad by a parent suffered serious emotional trauma. "In every single case the children are subject to extreme forms of emotional abuse by the parent who has taken the child," Mr Thompson said. "International parental abduction is recognised internationally as one of the most extreme forms of abuse that a parent can inflict on their own child."
Ms Motley says both the children and their mother will need a lot of support. "These kids are going to have some psychological sort of counselling, some sort of reintegration, some program," she said. "They are going to need a little bit of work to get them reintegrated back into Australian society but one good thing is that they are kids and kids are resilient and they bounce back a lot quicker than adults would."