When can a mom relocate overseas with her child born out of wedlock without the biological father’s consent?

My client has a child born out of wedlock. She wants to marry a UK citizen and wants to know if she needs the biological father’s consent to relocate with her child to the UK, or whether she enjoys sole responsibilities and rights in respect of the minor child, and doesn’t need his consent.

The position is governed by the Children’s Act, Act 35 of 2005 (‘the Act’).

Section 18 of the Act provides that a person may have either full or specific, parental responsibilities and rights in respect of a child, including caring for and maintaining contact with the child, acting as guardian of the child and contributing to the maintenance of the child.

A parent or other person who acts as guardian of a child must, inter alia, administer and safeguard the child’s property and property interests, assist or represent the child in administrative, contractual and other legal matters, and give or refuse any consent required by law in respect of the child (the legal consent'), including consent to the child’s marriage, adoption, departure or removal from South Africa, application for a passport and immovable property being alienated or encumbered (s 18(3)).

The legal consent of all the persons with guardianship of a child is necessary where legal consent is required unless a competent court orders otherwise (s 18(5)).

The question to be asked is: Does the biological father enjoy full or any parental responsibilities and rights in respect of the minor child?

In terms of section 21 of the Act, the biological father of a child born of unmarried parents 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 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 (section 21(1)(b)).

In the facts of this case the father has not seen the child in 4 years or contributed in any way to her maintenance or upbringing.

The father has to comply with all three requirements in section 21(1)(b)) to acquire (automatic) full parental responsibilities and rights, namely, he:

1.1.             consents to be identified as the child’s father (which he did); and

1.2.             contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period (which he  has not); and

1.3.             contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period (which he  has not).

In the circumstances, I concluded that as the father did not comply with all three requirements in section 21(1)(b)), he did not acquire any parental rights to the minor child. All that he has is the obligation to contribute to her maintenance.

On that basis, I concluded that my client had the sole right to care for the child and act as her guardian of the child. Accordingly, in my opinion, I advised my client that is was not necessary to obtain the written or any other consent from the father for the minor child’s departure or removal from South Africa.