Centre for Child Law and Lawyers for Human Rights ask high court to ensure birth registration for children of unmarried fathers
Source: Lawyers for Human Rights (South Africa)
Birth registration is an important ‘event’ in the life of a child as it is a gateway to a child accessing other rights which are essential for the full and effective participation in society. UNICEF research has highlighted the following barriers that children experience when their birth is not registered:
“the child who is not registered at birth is in danger of being shut out of society – denied the right to an official identity, a recognized name and a nationality… These children have no birth certificate, the ‘membership card’ for society that should open the door to the enjoyment of a whole range of other rights including education and health care, participation and protection.”
A judgment handed down on 9 July 2018 by the Grahamstown High Court sought to prevent such rights violation for children in South Africa. The judgment was in the case of Naki and Others v Director General: Department of Home Affairs and Another (Case No 4996/2016). Mr Naki and Ms Ndoyya, represented by the Legal Resources Centre, approached the High Court for assistance after several unsuccessful attempts to register the birth of their child because of the onerous requirements in the Birth and Deaths Registration Act; particularly regulations 3, 4 and 5 of the regulations to the Act. They asked the High Court to order the immediate registration of their child’s birth, as well as an order stating that the regulations were constitutionally invalid for its rigidity.
At the same time as the court challenge, the Centre for Child Law (“the Centre”) and their legal representatives, Lawyers for Human Rights (“LHR”), had amassed cases that related to the barriers faced by children born to unmarried fathers to have their births registered. In essence, these children’s births could not be registered – also as a direct result of impediments in the Act and its Regulations. The Centre and LHR were particularly concerned that section 10 of the Act and regulation 12, when read together, prevented the unmarried fathers from registering births of their children unless their mother was present.
On this basis, the Centre and LHR joined Naki and Ndovya’s court case.. The Centre and LHR presented over 40 instances in which the children’s fathers had been unable to register the births of their children in the absence of the child’s mother. In many of the cases, the child’s mother was missing, had abandoned the child or was deceased – leaving only the child’s father to register their birth. These fathers are unable to register the births of their children because of the impediments in the law. Thus, in addition to the relief sought by Naki and Ndovya, the Centre sought a declaration that section 10 of the Act and regulation 12 of its regulations was unconstitutional and invalid.
The matter was argued before Bodlani AJ on 27 March 2018, and judgment was handed down on 9 July 2018. The judgment correctly declared regulation 12 unconstitutional (as well as regulations 3, 4 and 5 which Naki and Ndovya argued for) and changed the wording of the section to ensure that a father was able to register the birth of his child in the absence of the mother. However, critically, it did not declare section 10 of the Act unconstitutional., This means that the Act and the regulation which was declared unconstitutional by the High Court do not speak to each other – as the Act still requires a child’s mother to be present during birth registration processes.
While the judgment is in some respects an important step forward in ensuring that all children’s births are registered, a critical opportunity to more comprehensively improve access to birth registration was missed. As such, the CCL and LHR appealed the part of the order that did not declare section 10 of the Act to be unconstitutional. Once the necessary documents are filed with the High Court, the full bench will hear the appeal.
The CCL’s senior attorney, Anjuli Maistry, said the following about the importance of the appeal:
“a birth certificate provides the State’s first legal recognition of a child and is required to access other rights and entitlements. Children without birth certificates are therefore at great risk of exclusion from education, as well as from accessing social assistance. In fact, the Centre is aware of hundreds of cases of children that are unable to access school solely as a result of lack of a birth certificate. Children without birth certificates are also at risk of statelessness, as well as generational statelessness. The Centre therefore welcomes the granting of leave to appeal and sees it as an opportunity to comprehensively remedy the flaws in the Act that children born out of wedlock face.”
If the appeal is successful, South Africa will follow a positive regional trend which ensures that the births of the children born to unmarried fathers can be registered.