Unmarried fathers are consistently faced with barriers when attempting to have access to their children. The reasons for such hindrances may vary from case to case (for further reasons see http://www.scielo.org.za/pdf/sw/v54n1/07.pdf accessed on 21 January 2021). In most instances contact is unreasonably withheld. However, withholding such consent would be regarded as reasonable if it is in the best interest of the minor. In some instances, contact is withheld simply because the father is not married to the child’s mother or is no longer married to the child’s mother. Having regard to this background, does an unmarried father have rights to compel the other parent to grant him access to the minor? Put differently, can an unmarried father compel the person preventing them from having contact with the minor to grant them contact?
In answering the above question, one has to consider the meaning of the term “contact”. The Children’s Act, 38 of 2005 (“the Act”) contains a definition of the term “contact”. The Act defines “contact” to mean maintenance of a personal relationship with the child in question by a parent. This contact can be exercised by communicating on a regular basis with the child, visiting, hosting the child. The communication may be effected by means of post, telephone or electronic communication.
Having considered the meaning of “contact”, now one can consider whether unmarried fathers are entitled to have contact with their children.
Section 21(1)(b) of the Act provides for acquisition of full parental responsibilities and rights of an unmarried father if he consents to being identified as the child’s father; contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period, and contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
In proceedings wherein an unmarried father attempts to exercise his right to have contact with the child, a court will consider the provisions of section 21(1)(b) before concluding whether an unmarried father has acquired full parental responsibilities and rights in respect of a minor child or not.
From the plain reading of the section it appears that reasonable contribution towards the child’s upbringing as well as attempts to contact the minor child might entitle an unmarried father rights to contact the minor child. The extent of the contribution is not clearly defined in the section of the Act. In KLVC v SDI and another 2015 JOL 32761 (SCA) the court considered the meaning of the phrases or words such as “contribute(s)” and “for a reasonable period” in the section. The Court came to the conclusion that the legislature was deliberately not prescriptive in defining the required contribution.
In AC v ADT 2015 JOL 33077 (GJ) the mother of the minor child had frustrated the unmarried father’s efforts to gain access to the child. She also refused to attend psychological assessments arranged by the unmarried father. The court granted contact to the unmarried father on the ground that access was unreasonably withheld.