Victory for kids after dads authorised to register child’s birth

CHILDREN without birth certificates are invisible, a full bench of the Grahamstown High Court has ruled.

In a landmark judgment that came to the rescue of unmarried fathers, the court said the children’s lack of recognition in the civil birth registration system exposed them to the risk of being excluded from the education system and access to social assistance and health care.

The court ruled that section 10 of the Births and Deaths Registration Act was unconstitutional because it did not make provision for unmarried fathers – caring for a child as a single parent – to register the child’s birth under their surname, without the mother being present.

This followed an appeal lodged by the Centre for Child Law, represented by Lawyers for Human Rights.

The matter, which was originally heard in 2018 by a single judge of the high court, sought a declaration of constitutional invalidity of sections of the act.

Regulation 12, which stated that an application for the birth certificate of a child born to unmarried parents could only be made by the mother of the child, was declared unconstitutional.

Section 10, which is linked to regulation 12, was not declared unconstitutional. This regulates the provision of a surname to a child born to unmarried parents.

The section provides for the child to receive the mother’s surname and the father’s surname only at the joint request of the father and mother.

It also provides that the mother’s surname be used and that the father’s details can be inserted in the birth certificate, but with the consent of the mother.

The section does not make provision for a child to receive their father’s surname or details of their father on their birth certificate without the mother’s involvement.

Zita Hansungule of the Centre for Child Law said there were several reasons a mother may not be involved in the birth registration process.

The mother may be dead, have absconded, be undocumented herself or not be able to be located.

“Without a declaration of constitutional invalidity of section 10, unmarried fathers remained unable to register the birth of their child without the mother being present. The judgment handed down by the full Bench cures this challenge.”

The court found that an unmarried father’s inability to register the birth of a child in his own name, without the presence of the mother, denied children a legitimate claim to nationality from birth – a birth certificate.

It discriminates against children cared for by unmarried fathers and does not protect their best interests.