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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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Good morning, I don't know where to start. My son's ex girlfriend is keeping th

Customer Question

Good morning, I don't know where to start. My son's ex girlfriend is keeping the child away from him, and is spreading rumours about now that he so called raped her about 3 years ago, but wnet back several times back to him when her relationships with other men did not work out. What can we do? She also made a recording last week where she continuously talked about their problems, and somewhere in the conversation there was mentioned that he forced himself in her. He did not take notice of the conversation, as he was cooking food for her, and now she threatens that if he tries to see the child, that she will get him locked up in jail. He pays half her rent, pays the creche fees, the child's swimming lessons, and give an additionl R 600-00 per month should the girl need anything. Now he cant see his child?
Submitted: 2 years ago.
Category: South Africa Law
Expert:  WCLawyer replied 2 years ago.
Good day and thank you for your question. My name is ***** ***** I will try and assist you today.
The rights of unwed fathers are set out in the Children’s Act under sections 18 and 21. Section 18 reads as follows:
18. Parental responsibilities and rights.—(1) A person may have either full or specific parental responsibilities and rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right—
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.
(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must—
(a) administer and safeguard the child’s property and property interests;
(b) assist or represent the child in administrative, contractual and other legal matters; or
(c) give or refuse any consent required by law in respect of the child, including—
(i) consent to the child’s marriage;
(ii) consent to the child’s adoption;
(iii) consent to the child’s departure or removal from the Republic;
(iv) consent to the child’s application for a passport; and
(v) consent to the alienation or encumbrance of any immovable property of the child.
(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.
(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c).
21. Parental responsibilities and rights of unmarried fathers.—(1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child—
(a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
(b) if he, regardless of whether he has lived or is living with the mother—
(i) consents to be identified or successfully applies 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.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child.
(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfillment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.
(4) This section applies regardless of whether the child was born before or after the commencement of this Act.
Basically then, if any of the aspects in section 21(1) is applicable, an unmarried father would automatically obtain the rights awarded to a parent in terms of section 18 of the act.
"care" is defined as follows:
“care”, in relation to a child, includes, where appropriate—
(a) within available means, providing the child with—
(i) a suitable place to live;
(ii) living conditions that are conducive to the child’s health, well-being and development; and
(iii) the necessary financial support;
(b) safeguarding and promoting the well-being of the child;
(c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
(d) respecting, protecting, promoting and securing the fulfillment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;
(e) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;
( f ) guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
(g) guiding the behavior of the child in a humane manner;
(h) maintaining a sound relationship with the child;
(i) accommodating any special needs that the child may have; and
( j) generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child;
"contact" is defined as follows:
“contact”, in relation to a child, means—
(a) maintaining a personal relationship with the child; and
(b) if the child lives with someone else—
(i) communication on a regular basis with the child in person, including—
(aa) visiting the child; or
(bb) being visited by the child; or
(ii) communication on a regular basis with the child in any other manner, including—
(aa) through the post; or
(bb) by telephone or any other form of electronic communication;
You will note that custody is not mentioned here, however, the act does make provision for an interested person to apply for custody of the child.
Having these rights is one thing, but an unmarried father would need to formalize these rights in order to enforce them.
The process would be started at the family advocate, where the parties will be assisted in drawing up a parental rights and obligations agreement. If they cannot agree on the contents of this agreement, then the matter will be referred to the court to make a decision based on the best interest of the child. You should be able to obtain the details of the Family Advocate from your local Magistrates Court.
Section 61 reads as follows:
61. Participation of children.—(1) The presiding officer in a matter before a children’s court must—
(a) allow a child involved in the matter to express a view and preference in the matter if the court finds that the child, given the child’s age, maturity and stage of development and any special needs that the child may have, is able to participate in the proceedings and the child chooses to do so;
(b) record the reasons if the court finds that the child is unable to participate in the proceedings or is unwilling to express a view or preference in the matter; and
(c) intervene in the questioning or cross-examination of a child if the court finds that this would be in the best interests of the child.
(2) A child who is a party or a witness in a matter before a children’s court must be questioned through an intermediary as provided for in section 170A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) if the court finds that this would be in the best interests of that child.
(3) The court—
(a) may, at the outset or at any time during the proceedings, order that the matter, or any issue in the matter, be disposed of separately and in the absence of the child, if it is in the best interests of the child; and
(b) must record the reasons for any order in terms of paragraph (a).
This basically means that if the court is satisfied that the child understands the proceedings and the consequences thereof and the child is speaking his own mind as supposed to repeating what he was told to say, the court will take the wishes of the child into consideration when deciding who should get custody.
I am afraid that this is the only way in which he can 'force' her to give him access to the child. I do not know the contents, nor the circumstances surrounding the recording, so it is difficult for me to comment. If he was not listening and was merely replying in an absent minded sort of way, then he can explain that to any court that attempts to prosecute him and the courts must then take that explanation into account.
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