What happens when an unmarried man is denied access to his children?

Solomon Mondlane is one of two fathers that started a hunger strike outside of the Department of Social Development last week due to denied access to their children. 

Solomon Mondlane’s 10-year-old daughter and 4-year-old son are living with his in-laws and they are refusing him access since his daughter’s mother passed away 36 months ago. Mondlane and his partner were unmarried and lived together, raising their daughter. She suddenly fell in, and Mondlane contacted her family who came to fetch both her daughter and mother. 

She then passed away and they have refused him to see his daughter since even refusing him to bury her mother. 

This is not a unique case in South Africa. 

Unmarried parents are denied access to their children due to the failure of following cultural requirements. If a man impregnates a girl and does not marry her or pay the family ‘damages’, then he relinquishes his rights to be a father. 

The Children’s Act 38 of 2005 states that both a child’s parents have full rights to exercise their parenting responsibility. This right is not only limited to married couples. 

These rights include:

• the right of care of the child;
• the right to maintain contact with the child;
• the right to act as the guardian of the child; and
• the responsibility to contribute towards the maintenance of the child.

According to Tracy Leigh Wessels and Associates “in terms of Section 21 of the Children’s Act, the unmarried father automatically acquires full Parental Responsibilities and Rights in respect of his child if he lived with the child’s mother in a permanent life partnership at the time of the child’s birth.”

This means that Mondlane could automatically assume full responsibility over his children as he lived with both the children and their mother even at the time of her death. 

This means that if a man is denied access to a child due to failure to marry the mother, or traditionally acknowledge it, then the family or the mother is breaking the law. The father can, therefore, submit a court application for guardianship through the High Court. 

The same notice will also be submitted to the Office of the Family Advocate, according to Adv. Muhammad Abduroaf of Our Lawyer. 

This can be a lengthy and costly process, but based on the legitimacy of the case, the father can win it if he feels like he meets all the requirements. 

This notice can be disputed if the father does not meet the requirements to be granted full access to the child. The mother can dispute his failure to maintain the child financially, contribute to his upbringing, or failure to pay damages according to customary law. 

The father can apply for care and/or contact through the Children’s Court. 

Fathers can also go through organisations such as Fathers 4 Justice South Africa. This organisation has helped reunite fathers with their children after being denied access. According to the chairperson Gary da Silva, fathers should have the same rights as the biological mother.