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Study Unit 6 - Birth as status determining factor - Coggle Diagram
Study Unit 6 - Birth as status determining factor
Child of married biological parents
Voidable marriage
If at a later date the marriage is declared void, the children will keep their status as being born of married parents
Is a marriage that can be annulled (void) as if it had never taken place
A marriage can never be void - either valid or voidable
Adoption
If a married couple adopts a child, it is said to be born of married parents. All the previous applications will apply to an adopted child and the adoptive parents
Biological parents marry each other after the birth of the child then the child is reclassified as born of married parents.
Artificial fertilization - born of married parents
Artificial insemination => Fertilization that takes place in any way other than the natural way
Gamete => Either of the two generative cells essential for human reproduction
AIH Children - Children conceived using the gametes of the husband
=> The child is classified as a child born to married parents
=> Regardless of whether or not the husband consents to his gametes being used
=> Before any IVF or artificial fertilization both parties need to consent to the procedure
=> Even if the husband withdraws consent
AID children - Child conceived using the gametes of a donor
=> Status of this child is more complicated
=> Born of married parents if
*Gametes of a male donor are used
*No relationship between donor and child born
Surrogacy
=> When a woman gives birth to a child of another woman, she is not legally the mother of the child, regardless of whether or not the child biologically belongs to the surrogate mother
Partial surrogacy
=> The gametes of the surrogate mother are used, and once the surrogate has given birth she will have a 60 day period withing which she can change her mind and decide to keep the baby
Married couple with donor gametes
=> Where either the male or female gametes are donated, the child is considered to be born to married parents. Only the case where both spouses have consented to artificial fertilization taking place with donor gametes
*Rebuttable presumption that both spouses have consented
Putative marriage - a marriage that is void but either one or both of the parties were unaware of the fact that made it void
The children born of this marriage are classified as children born of married parents
Unmarried woman
She is the mother of the child with Parental Rights and Responsibilities, the child is classified as a child born to unmarried parents. There is no relationship between the donor and the child (legally). Donor will not have parental responsibilities and rights
First way in which a child is classified as a child of married parents is if the biological parents of the child are parties to valid marriage at conception, birth or any time between conception and birth
If married after conception but divorced before birth = still the child is born of married parents
Proof of paternity
Choice of paternity
If a woman can prove that she has had sexual intercourse with two men during the time of conception, she can choose who she wants to be the father of the child in terms of the common law. Once she can exercise this choice she cannot change her mind at a later stage. It can be rebutted. It is heavily criticized in our law
Choice can be to the disadvantage of either male party, or to the disadvantage of the child. Allowing the choice is outdated, it is from the common law. Outdated due to the advancement of medical knowledge
Rebuttal of presumption
If the father wants to rebut the decision, on a balance of probabilities, he has to rebut the decisions (usually blood tests). Ways in which a man can prove he is not the father
Sexual abstinence => If he can prove no sexual intercourse took place - usually in the case of a married woman because in the case of an unmarried woman sexual intercourse is already proven. E.g. Husband is in the army for a year, and wife falls pregnant and has a baby
Duration of pregnancy => If person designated as father says the time frame is off - can be too short or too long time
=> Courts have been lenient with this application in order for more children to have the advantage of a father
Sterility => No room for medical miracles - has to be an operation because a low sperm count is not strong enough evidence
Appearance and contraceptives are not acceptable ways to disprove paternity
Blood tests
=> Most common is DNA tests because of their accuracy
=> A rebuttable presumption that these tests are accurate - no nee to prove their accuracy in court
=> Can a person be compelled to undergo test?
^Sec 14 (BoR) - the right to privacy
*Sec 12 (BoR) - right to bodily and psychological integrity
*Sec 28 (2) - best interest of the child
*These rights are held against each other
*If a party refuses to submit DNA testing - the court may draw a negative inference from this
Child of an unmarried woman
Proof of paternity takes place in two stages
Onus of proof lies with the mother, she needs to prove on a balance of probabilities that she had had sexual intercourse within the period of when conception should have occurred. If she can prove this, then in terms of S36 of the Children's Act, this man has a rebuttable presumption that he is the father of the child
Onus of proof lies with the father, through a rebuttable presumption. This can occur through a variety of means, the most relaible being DNA test
LB v YD 2010 - SCA
This is now precedent
Mother was in a life partnership with the father
Father moved out 7 months before the baby was born
She found out she was 8 weeks pregnant the day before he moved out
They exchanged lawyers letters in which he acknowledged he was the father, she did too
She later got married but then one day (before baby was born) father decided he was not the father and wanted nothing to do with the mother and child
Mothers husband said he would be the father and all went ahead as such
After the baby was born, original father wanted to be known as father although the husband was already presumed to be the father
Father asked for DNA tests but mother said the issue was resolved and husband was the father
The court ruled yes and went with the first school of though - more important we know who the father is
Mother appealed this and argued that S 28 of Children's Act says the best interest of the child is paramount and in this case it is to have the husband as the father of the child
Court ruled that it is in the best interest of the child to know her genetic origin and biological roots and thus the child was submitted to blood tests
Section 37 - The court must warn such party of the effect which such refusal might have on the credibility of that party
Child of a married woman
If a child is born to a married woman, then the father is designated by the marriage. There is a rebuttable presumption that says that a married woman gives birth then the law regards the husband as the father.
The rebuttable presumption rests on a balance of probabilities through evidence that proves that the husband is not the father
Presumption applies - that the child is conceived before or during the marriage, and there is a subsequent divorce or dissolution of the marriage between the married parties, the child is still considered to be born to married parents
Application to a woman who is married, conceives a child, then divorces him and marries another man and subsequently gives birth whilst in the second marriage, who is the father of the child? Apply the presumption literally - the second husband is the father of the child, this can be rebutted
Relevant provisions regarding parental responsibilities and rights
Parental responsibilities and rights of mothers.—
(1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.
(2) If—
(a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and
(b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.
(3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. (Date of commencement of s. 19: 1 July, 2007.)
Parental responsibilities and rights of married fathers.—The biological father of a child has full parental responsibilities and rights in respect of the child— (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at—
(i) the time of the child’s conception;
(ii) the time of the child’s birth; or
(iii) any time between the child’s conception and birth. (Date of commencement of s. 20: 1 July, 2007.)
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 fulfilment 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. (Date of commencement of s. 21: 1 July, 2007.)
Parental responsibilities and rights agreements.—
(1) Subject to subsection
(2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with—
(a) the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or
(b) any other person having an interest in the care, well-being and development of the child.
(2) The mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person contemplated in subsection (1) those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.
(3) A parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars.
(4) Subject to subsection (6), a parental responsibilities and rights agreement takes effect only if—
(a) registered with the family advocate; or
(b) made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement.
(5) Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.
(6) (a) A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated by the family advocate on application—
(i) by a person having parental responsibilities and rights in respect of the child;
(ii) by the child, acting with leave of the court; or
(iii) in the child’s interest by any other person, acting with leave of the court.
(b) A parental responsibilities and rights agreement that was made an order of court may only be amended or terminated on application—
(i) by a person having parental responsibilities and rights in respect of the child;
(ii) by the child, acting with leave of the court; or (iii) in the child’s interest by any other person, acting with leave of the court.
(7) Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.
Assignment of contact and care to interested person by order of court.—
(1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary—
(a) contact with the child; or
(b) care of the child.
(2) When considering an application contemplated in subsection (1), the court must take into account—
(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other relevant person and the child;
(c) the degree of commitment that the applicant has shown towards the child;
(d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
(e) any other fact that should, in the opinion of the court, be taken into account.
(3) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court—
(a) must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and
(b) may suspend the first-mentioned application on any conditions it may determine.
(4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child. 24. Assignment of guardianship by order of court.—
(1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.
(2) When considering an application contemplated in subsection (1), the court must take into account—
(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other relevant person and the child; and
(c) any other fact that should, in the opinion of the court, be taken into account.
(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.
Certain applications regarded as inter-country adoption.—When application is made in terms of section 24 by a non-South African citizen for guardianship of a child, the application must be regarded as an inter-country adoption for the purposes of the Hague Convention on Inter-Country Adoption and Chapter 16 of this Act. 26. Person claiming paternity.—
(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—
(a) 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 No. 51 of 1992), identifying him as the father of the child, if the mother consents to such amendment; or
(b) apply to a court for an order confirming his paternity of the child, if the mother—
(i) refuses to consent to such amendment;
(ii) is incompetent to give consent due to mental illness;
(iii) cannot be located; or (iv) is deceased.
(2) This section does not apply to—
(a) the biological father of a child conceived through the rape of or incest with the child’s mother; or (b) any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation.
Maintenance
If parents are unable to maintain their children then this duty shifts to the grandparents (If married, both grandparents but in extramarital cases it would shift to mothers parents up until 2004)
Pererson v Maintenance Officer, Simons Town Maintenance Court 2004 (2) SA 56 (C)
Duty of the child - Reciprocal duty that a child must take care of the parents and maintain. It was always a common law duty, but in Perterson v Maintenance Officer it was set out in so many words (No legal obligation for step parents and visa versa)
High court can claim from parental grandparents
Should a major wish to go to university and parents are financially capable then maintenance is extended past majority - with factors taken into consideration
This was discriminatory and put too much of a burden on the grandparents
Maintenance for a child never stops (there is a definite obligation to pay maintenance up until majority because afterwards a child can technically look after itself)
Court found that there was an obligation on both sides of the family, even if unmarried
Both parents are obliged to pay for the maintenance of the child (pro rata) according to their financial means provided that they are financially capable of doing so and the child is in need of support (e.g. Grandparents leave lots of money for the child in his benefit in terms of young child)
Status of a child with unmarried biological parents
Guardianship
The guardian acts for or on behalf of the child in terms of concluding contracts
The guardian can refuse or give consent for a child to marry, be adopted, before child can leave South Africa, accompany a minor and assist with application of a passport, involved in any transaction about immovable property
Guardian role is involved in the major decisions in a child's life
Care
The day to day decisions are made by the parent that has the care (school, extra-mural activities, religious upbringing)
The parent or parents who have care of the child, have to provide the child with a place to live, acceptable living conditions
Must ensure that the child is protected from neglect and abuse
Definition of care is broader than the in the previous legal position
=> To always act in the best interest of the child
Current legal position
Children's act 38 of 2005 - when the 2007 provisions came into application
Parents no longer had parental authority - now parental responsibilities and rights
=> Children are now the focus of the relationship and thus a child's rights are a parents repsonsibilities
=> If ou have full parental responsibilities and rights, you have all four elements
=> The three elements have become
*Guardianship
*Care
*Contact
*Maintenance
Contact
It differs from access as it is no longer just physical access, however, it does include it
Also includes other forms of communication (telephonic, electronic, post)
Parental responsibilities and rights are established through the following sections of the children's Act - refer to relevant provisions regarding parental responsibilities and rights
Introduction - Parental authority
Referred to the authority that parents had over the children
The father had the right to decide whether the child could live or not - Old Roman Dutch Law
Up till 1 July 2007, we worked with parental authority, it is the previous legal position
Parental authority consisted of three elements
=> Guardianship
=> Custody - who the child lives with
=> Access
*The parent that didn't have custody, had access
*Meant that they could see the child
*Supervised or unsupervised
Children born to unmarried biological parents
Adulterous children - Adulterini
Children who were conceived when one or both parents were married to someone else at the time of conception. Thus the parents could not be married to one another at the time of conception
Possible that the parents can get married at a later date, once possible, and no longer married to other parties. Can this change the status of the child at a later date
Incestuous children - Incestuosi
Children born to parents who are within the prohibited degrees of affinity, born to unmarried parents. The status of the child can never change as the law prohibits the marriage between the parents either through biological relationships or relationships of affinity, through either blood or marriage
Natural children - Spurii
Parents who are not married but could have been married at the time of conception
Child's status can change from being born to unmarried parents to being born to married parents
Succession
Section 81 of Intestate Succession 1987
Extramarital status does not affect your capacity to inherit from your blood relations on either side
If husband has extra-marital child with another woman, 3 children in total (2 with his wife) When he dies - all 3 inherit equally if intestate
Intestate succession => No distinction between children born to married parents and children born to unmarried parents -
Testate succession => Section 2 D(1)(b) Wills Act 7 - "My children" will include all, even if extra-marital
Adoption
Children's Act Chapter 15
Mother and Father need to consent irrespective of whether they are married, irrespective of whether he has parental responsibilities and rights
When like a one night stand - Mother says on birth certificate "unknown" and then his consent is not needed
When father is a rapist. Court must find on a balance of probabilities that the child was born as a result of rape, then the father does not have the right to give consent. This is not the same as a rape conviction