Lack of rights for unmarried fathers renders newborns stateless

7 Sep 2020

Under current South African law – now being challenged in the Constitutional Court – a child’s birth cannot be registered if the person registering the birth is an unmarried father and is doing so without consent of the mother. This renders the newborn child stateless.

The right to a name and nationality from birth is enshrined in Section 28(1) of the Constitution. Enabling legislation, specifically the Births and Deaths Registration Act, is meant to facilitate realisation of this right.

The stark reality, however, is that the births of many children in South Africa are not registered. This leaves them open to risks and deprives them of rudimentary entitlements, such as basic education and access to social security and healthcare. It can also diminish eligibility for employment later on in life, and lead to arbitrary arrest and detention.

One instance where a child’s birth cannot currently be registered is if the person doing the registering is an unmarried father doing so without the consent of the mother of the child.

There are a number of reasons a mother may not consent to the unmarried father registering the birth of a child. She may, for instance, be deceased or have absconded.

It is Section 10 of the Births and Deaths Registration Act that contains this exclusion. It provides that the mother’s presence or giving of consent is necessary in all scenarios in which a child’s birth can be registered, implicitly barring an unmarried father from registering a birth in the absence of the mother.

This is tantamount to unfair discrimination against the father and the child – in respect of the first, because the law does not recognise them as a parent, and in respect of the second, in that it denies the child of a right that the Constitution guarantees to everyone.

Section 9 of the Constitution protects against unfair discrimination.

The discrimination against the child, owing to the consequences it heralds, is also contrary to Section 28(2) of the Constitution, which states that “the best interests of the child are of paramount importance in every matter concerning the child”.

In the event that a child’s birth cannot be registered, that child is essentially rendered stateless. Under the Convention Relating to the Status of Stateless Persons, “the term ‘stateless person’ means a person who is not considered as a national by any state under the operation of its law”.

Unfortunately, South Africa has not ratified this convention, which diminishes the specificity with which we are obliged to protect stateless persons.

South African case law is clear on this matter in S v M (Centre for Child Law as Amicus Curiae), explaining that a child “cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them”.

On 1 September 2020, arguments were heard in the Constitutional Court in this regard, with the Centre for Child Law as an institutional applicant in this matter.

The centre asked for Section 10 of the Births and Deaths Registration Act to be declared unconstitutional insofar as it excluded unmarried fathers from being able to register the births of their children.

The matter had been referred to the apex court from the Grahamstown High Court, where this court had read into the existing provision that:

“notice of birth of a child born out of wedlock shall be given … under the surname of the father where the father is the person giving notice of the child’s birth and acknowledges his paternity in writing under oath…”

This solves the problem of fathers being unable to register the birth, as, by allowing the child to take the father’s surname, the necessary particulars for a complete notice of birth will be present.

The Constitutional Court was asked to confirm this decision and refer the matter to Parliament to correct the defect. It was also asked to implement an interim regime to allow these children’s births to be registered.

The inability of unmarried fathers to register births of their children is one example of how children become stateless in this country.

Others include when a child is born to foreign nationals in South Africa, and the country of origin of the child’s parents refuses to register the birth of the child, where the child’s parents have died and the child’s guardians wish to register his or her birth, or if the child is a foundling.

Indeed, there are many instances where law reform is needed to ensure that the status of all children is regularised.

Internationally, the need for registration of the birth of all children within the borders of South Africa has been noted. The United Nations Committee on the Rights of the Child recommended a broad spectrum of actions the South African government needs to take to ensure the regularisation of the status of all children within the country

One example relevant to this matter is that all laws and regulations that are discriminatory towards certain groups must be reviewed and amended.

A further recommendation is that the South African government must ensure that a child whose birth is unregistered still has access to child protection services as well as social services, while the government increases its efforts to ensure universal birth registration.

The African Committee of Experts on the Rights and Welfare of the Child recommended that:

States “do not distinguish on the basis of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status, including the child’s birth in or out of wedlock”.

A very important international benchmark is the Sustainable Development Goals. Target 16.9 “calls upon States to provide legal identity for all, including birth registration by 2030”.

South Africa has committed to achieving these goals, meaning that there exists an international imperative for our government to take proactive steps in ensuring that all children’s births are registered. With Section 10 in place as it stands, this is not possible.

A child has the right to live unfettered by the actions of his or her parents. Just because parents are unmarried at the time of the child’s birth, and that a mother was not available to consent to the registration thereof, should not mean that harsh consequences should be visited upon the child.

South African case law is clear on this matter in S v M (Centre for Child Law as Amicus Curiae), explaining that a child “cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them”.

The importance of the regularisation of the status of children cannot be overemphasised. Birth registration “unlocks” an array of critical entitlements without which the child is at considerable risk of poverty, inequality and insecurity. The success of this case is vital to the enhancement of the lives of many children.

Let us hope the Constitutional Court makes the correct decision. DM

Nicole Breen is a human rights and current affairs analyst with specialties in the rights of children, basic education and mental health. She holds an LLM in Child Law from the University of Pretoria. She has worked at a number of NGOs, at academic institutions and at a national human rights institution. She has a particular interest in law reform and in policymaking, and has participated in these processes extensively at national level.

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