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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
31/96
LAWRIE JOHN FRASER Applicant
versus
THE
CHILDREN’S COURT, PRETORIA NORTH First Respondent
ADRIANA PETRONELLA
NAUDE Second Respondent
THE ADOPTIVE PARENTS Third Respondents
Heard on: 12 September 1996
Decided on: 5 February 1997
JUDGMENT
MAHOMED
DP:
[1] The applicant is a system developer employed in the computer
industry. The second respondent is a violinist employed by the South
African
Broadcasting Corporation. For some months during the period 1994 to 1995 the
applicant and the second respondent became
involved in an intimate relationship
and lived together as man and wife in a commune in Johannesburg, initially in
Melville and subsequently
in Malvern. It is common cause that the second
respondent gave birth to a boy named Timothy on 12 December 1995 and that the
applicant
is the father of that child. No marriage was solemnized between the
parties.
[2] During April 1995, shortly after the second respondent
discovered that she was pregnant with this child she decided that it would
be in
the best interests of the unborn child that he be put up for adoption. When
this became known to the applicant he resisted
the proposed adoption and that
resistance has given rise to extensive litigation between the parties commencing
early in December
1995.
[3] This litigation included an initial urgent
application by the applicant in the Supreme Court for an interdict restraining
the
second respondent from handing over the child (then yet to be born) for
adoption. This application was dismissed by Coetzee J on
8 December 1995 on the
grounds that the applicant had established no prima facie
right.[1] The applicant’s
attorney thereupon wrote to the Minister of Justice on 14 December 1995 seeking
the assurance of the Minister
that the Commissioner of Child Welfare would be
instructed to afford to him an immediate right to oppose the adoption of Timothy
until such time as the Constitutional Court had made a ruling on his rights.
The reply of the Minister was swift and empathetic
to the plight of fathers of
“illegitimate”[2]
children. He referred the applicant to a Bill designed to alleviate the plight
of such children and then expressed himself as follows:
“Despite the current legal position, the Minister respects the rights of parents and children enshrined in our Constitution and in pursuance thereof believes that your clients [sic] should at least be afforded the opportunity to be heard by the relevant Commissioner(s).”
[4] The
litigation also included a number of separate hearings before the Commissioner
of the Children’s Court, Pretoria North,
which is the first respondent in
the present proceedings. On these occasions the applicant sought to intervene
in the adoption proceedings
on the grounds that he was an interested party and
also on the grounds that he wished to be considered as a prospective adoptive
parent. He also sought a stay of the adoption proceedings pending an
application to the Constitutional Court to challenge the constitutionality
of
section 18(4)(d) of the Child Care Act 74 of 1983 (“the Act”),
insofar as it dispenses with the father’s consent
for the adoption of an
illegitimate child. This subsection reads as follows:
“A children’s court to which application for an order of adoption is made . . . shall not grant the application unless it is satisfied-
. . . .
(d) that consent to the adoption has been given by both parents of the child, or, if the child is illegitimate, by the mother of the child, whether or not such mother is a minor or married woman and whether or not she is assisted by her parent, guardian or husband, as the case may be;
. . . .”
[5] The first respondent gave its
judgment on 23 February 1996. It made an order in terms of the Act sanctioning
the adoption of
Timothy. (The identity of the third respondents, who are cited
in these proceedings as “the adoptive parents”, was at
that stage
not yet known by the applicant.)
[6] On the following day the applicant
launched another application in the Supreme Court in which he claimed, inter
alia, the disclosure
of the identities of the adoptive parents so as to enable
him to interdict them from causing Timothy to leave the Republic of South
Africa. This interdict was sought pending the outcome of an appeal or review
against the decision of the first respondent in the
adoption proceedings which
had been concluded on 23 February 1996. This application was also
dismissed.[3]
[7] On 11 March
1996 the applicant thereafter brought proceedings in the Transvaal Provincial
Division for review of the decision
made by the first respondent, on an urgent
basis. The notice of motion included the following prayers:
“. . . .
3. An order reviewing and setting aside the order for the adoption of Timothy Naude made by the First Respondent on the 23rd day of February 1996.
4. An order declaring that the father of an illegitimate child is entitled to be heard on, and to participate in any hearing of, an application for the adoption of his child in terms of the Child Care Act, 74 of 1983.
5. An order declaring that Regulation 21(3) of the Regulations in terms of the Child Care Act is inconsistent with the Constitution and invalid at least insofar as it denies the father of an illegitimate child the right to be heard on, and to participate in any hearing of, an application for the adoption of his child in terms of the Child Care Act, 74 of 1983.
6. An order declaring that Section 18(4)(d) of the Child Care Act, 74 of 1983 is inconsistent with the Constitution and invalid insofar as it dispenses with the father’s consent for the adoption of an illegitimate child.
. . . .”
[8] After various preliminary skirmishes,
judgment was eventually given by Preiss J on 24 May
1996[4] in which the order made by the
first respondent for the adoption of Timothy was set aside. Prayer 6 was
referred to this Court for
determination. The court found it unnecessary to
make any other orders.
The referral
[9] The first question
which requires to be dealt with is whether or not the referral to this Court by
Preiss J was competent in terms
of the Constitution of the Republic of South
Africa, Act 200 of 1993 (“the Constitution”). The court a quo
relied on
the provisions of section 102(1) of the Constitution in making the
order of referral.
[10] The relevant provisions of section 102 of the
Constitution provide as follows:
“(1) If, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional Court in terms of section 98(2) and (3), the provincial or local division concerned shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concerned shall hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court.
(2) If, in any matter before a local or provincial division, there is any issue other than an issue referred to the Constitutional Court in terms of subsection (1), the provincial or local division shall, if it refers the relevant issue to the Constitutional Court, suspend the proceedings before it, pending the decision of the Constitutional Court.
(3) If, in any matter before a provincial or local division, there are both constitutional and other issues, the provincial or local division concerned shall, if it does not refer an issue to the Constitutional Court, hear the matter, make findings of fact which may be relevant to a constitutional issue within the exclusive jurisdiction of the Constitutional Court, and give a decision on such issues as are within its jurisdiction.”
[11] It is clear that before there can
be a competent and proper referral in terms of section 102(1) four requirements
must be satisfied:[5]
1. There must be an issue before the provincial or local division of the Supreme Court concerned which may be decisive for the case.
2. The issue sought to be referred must fall within the exclusive jurisdiction of the Constitutional Court.
3. The referral must be in the interests of justice.
4. The interests of justice also require an assessment as to whether there are reasonable prospects of success for the party seeking to attack the constitutionality of the relevant statute or any particular part thereof.
[12] Preiss J was undoubtedly correct
in concluding that the second requirement for a valid referral, which I have set
out above,
was satisfied. Moreover, no attack was made on the conclusion that
the third and fourth requirements were also satisfied in the
circumstances of
the present case.
[13] In response to an invitation from this Court, the
second and the third respondents contended, however, that the first of the
four
requirements for a valid referral was not satisfied and that it could not
properly be said that there was an issue before the
provincial or local division
concerned which could be decisive for the
case.[6]
[14] It is clear that
if the impugned portion of section 18(4)(d) of the Act is indeed inconsistent
with the Constitution the adoption
order made by the first respondent was
invalid. The court a quo might therefore have been justified in acting in terms
of sections
102(1) and 102(2) in referring the constitutionality of section
18(4)(d) of the Act to this Court and in suspending the proceedings
before the
Supreme Court pending the decision of this Court. This is not, however, the
course which the court did in fact follow.
It proceeded to uphold the prayer to
set aside the adoption order on the grounds that the applicant had not received
a proper hearing
because the first respondent had
“. . . pre-empted the applicant’s request for viva voce evidence to which he was entitled as a party with a substantial interest in the proceedings under the common law, or as a person likely to be affected by the adoption order in terms of section 8(5) of the Child Care Act, or as a parent at an adoption inquiry in terms of regulation 4(1), or on the application of the audi alteram partem principle.”[7]
[15] It
could therefore be contended with some force that once the court a quo was able
to and did in fact set aside the adoption
order of the first respondent on
grounds unrelated to the constitutionality of section 18(4)(d) of the Act, it
could not be said
that a decision on the constitutionality of that section was
“decisive for the case” before it.
[16] The cogency of that
argument depends on a proper analysis of the “case” before the court
a quo. If prayer 6 is simply
an order sought to support the order to set aside
the adoption proceedings in prayer 3 then the argument has considerable force
because
the adoption order was in fact set aside by the court a quo without any
reference to the constitutionality or otherwise of section
18(4)(d) of the Act.
But this would not be the case if prayer 6 was a self-contained prayer sought
not for the purposes of justifying
an order in terms of prayer 3 but for the
purposes of securing for the applicant an independent right to veto the adoption
of his
child on the same basis as the mother (and subject only to the provisions
of section 19 of the Act).[8]
[17] Prayer 6 was sought in the form of a declarator and cannot simply
be treated as a ground in support of an order to set aside
the adoption order in
terms of prayer 3. The applicant had a separate and substantive interest in
obtaining an order in terms of
prayer 6 in addition to the order setting aside
the adoption order made by the first respondent. Setting aside the adoption
order,
without a declarator in terms of paragraph 6, would have given to the
applicant a new opportunity of being properly heard before
the first respondent.
It would not have given to him the advantage of a veto on the adoption which an
order in terms of prayer 6
might secure (subject to the provisions of section 19
of the Act). Viewing the case as two distinct ones in substance, as I therefore
do, I accordingly consider that the referral was covered by section 102(1) and
that section 102(2) did not enter the reckoning because
the issue referred was
the only one raised by the case in question and there were no proceedings in it
which had to be suspended
in the meantime.
The constitutionality of section 18(4)(d)
[18] The relevant
parts of section 18(4)(d) of the
Act[9] which are attacked on behalf of
the applicant are all the words after the word “child” where it
occurs for the first
time in the section. If this attack is successful its
effect would (subject to the provisions of section 19 of the Act) be to preclude
a Children’s Court from making an adoption order in any case unless it is
satisfied that consent to the adoption has been given
by both parents of the
child and it would not matter whether or not the parents of the child to be
adopted are married to each other
or whether the child is
“legitimate” or “illegitimate”.
[19] The main
attack on section 18(4)(d) of the Act made on behalf of the applicant was that,
in its existing form, it is inconsistent
with section 8 of the Constitution
because it violates the right to equality in terms of section 8(1) and the right
of every person
not to be unfairly discriminated against in terms of section
8(2) of the
Constitution.[10]
[20] There
can be no doubt that the guarantee of equality lies at the very heart of the
Constitution. It permeates and defines the
very ethos upon which the
Constitution is premised.[11] In
the very first paragraph of the preamble it is declared that there is a “.
. . need to create a new order . . . in which
there is equality between men and
women and people of all races so that all citizens shall be able to enjoy and
exercise their fundamental
rights and freedoms”. Section 8(1) guarantees
to every person the right to equality before the law and to equal protection
of
the law. Section 8(2) protects every person from unfair discrimination on the
grounds of race, gender, sex, ethnic or social
origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture or language.
These specified grounds are
stated to be without derogation from the generality
of the provision. Section 8(3)(a) makes it clear that nothing in sections 8(1)
or (2) precludes measures designed to achieve the adequate protection or
advancement of persons or groups or categories of persons
disadvantaged by
unfair discrimination, in order to enable their full and equal enjoyment of all
rights and freedoms. Consistent
with this repeated commitment to equality are
the conditions upon which there can be any justifiable limitation of fundamental
rights
in terms of section 33 of the Constitution. In order for such a
limitation to be constitutionally legitimate it must be “justifiable
in an
open and democratic society based on freedom and equality”.
[21] In my view the impugned section does in fact offend section 8 of
the Constitution. It impermissibly discriminates between the
rights of a father
in certain unions and those in other unions. Unions which have been solemnised
in terms of the tenets of the
Islamic faith for example are not recognised in
our law because such a system permits polygamy in marriage. It matters not that
the actual union is in fact monogamous. As long as the religion permits
polygamy, the union is “potentially polygamous”
and for that reason,
said to be against public
policy.[12] The result must
therefore be that the father of a child born pursuant to such a religious union
would not have the same rights as
the mother in adoption proceedings pursuant to
section 18 of the Act. The child would not have the status of
“legitimacy”
and the consent of the father to the adoption would
therefore not be necessary, notwithstanding the fact that such a union, for
example
under Islamic law, might have required a very public ceremony, special
formalities and onerous obligations for both parents in terms
of the relevant
rules of Islamic law
applicable.[13]
[22] Whatever
justification there might have been for discrimination against the fathers of
such unions is destroyed by section 27
of the Act which provides that a
“customary union” as defined in section 35 of the Black
Administration Act 38 of 1927
(“the Black Administration Act”) is
deemed to be a marriage between the parties thereto for the purposes of Chapter
4
of the Act (which includes section 18(4)). That definition in the Black
Administration Act defines “customary union”
to mean
“the association of a man and a woman in a conjugal relationship according to Black law and custom, where neither the man nor the woman is party to a subsisting marriage”.
The effect of section 27 of the
Act is therefore to deem a customary union in terms of Black law and custom to
be a marriage for the
purposes of the Act. The consequence which follows is
that, in terms of section 18(4)(d) of the Act, the consent of both the father
and the mother would, subject to the provisions of section 19, be necessary for
an adoption order to be made in respect of a child
born from such a
union.
[23] In respect of adoption proceedings under the Act, fathers of
children born from Black customary unions have greater rights than
similarly
placed fathers of children born from marriages contracted according to the rites
of religions such as Islam. This appears
to be a clear breach of the equality
right in section 8 of the Constitution. The question which arises is whether
there can be any
justification for this discrimination in terms of section 33 of
the Constitution. In my view there is none. Such a distinction
might or might
not have been justified if the “Black law and custom” referred to in
the definition of “customary
union” precluded polygamy. But, in any
event, it does not.[14] There
appears to me to be no reason why exactly the same recognition should not be
afforded to marriages in accordance with the
rights of systems which potentially
allow polygamy. This invasion of section 8 of the Constitution is, in my view,
clearly not reasonable
and not “justifiable in an open and democratic
society based on freedom and equality”. The objection to section 18(4)(d)
of the Act must, on this ground, therefore be upheld. It is true that what was
directly attacked by the applicant is section 18(4)(d)
of the Act and not
section 27, but the two have to be read together. Section 27 is effectively a
definitional section which includes
a “customary union” (as defined
in the Black Administration Act) in the definition of
marriage.[15]
[24] Apart from
the fact that the impugned section unfairly discriminates between some
matrimonial unions and others, it might also
be vulnerable to attack on other
grounds. A strong argument may be advanced in support of other attacks on the
section made in terms
of section 8 of the Constitution on the grounds that its
effect is to discriminate unfairly against the fathers of certain children
on
the basis of their gender or their marital status.
[25] Sometimes the
basic assumption of the attack on the impugned section based on gender
discrimination is that the only difference
between the mother and the father of
a child born in consequence of a relationship not formalised through marriage is
the difference
in their genders and on that basis it is suggested that this is
expressly made an impermissible basis for discrimination in terms
of section
8(2) of the Constitution. In my view, this proposition is too widely stated.
The mother of a child has a biological
relationship with the child whom she
nurtures during the pregnancy and often breast-feeds after birth. She gives
succour and support
to the new life which is very direct and not comparable to
that of a father. For this reason the kind of discrimination which section
18(4)(d) of the Act authorises against a natural father may be justifiable in
the initial period after the child is born. My difficulty,
however, is that the
section goes beyond this. Every mother is given an automatic right, subject to
section 19, to withhold her
consent to the adoption of the child and that is
denied to every unmarried father, regardless of the age of the child or the
circumstances.
This could lead to strangely anomalous and unfair results. The
consent of the father to the adoption of such a child would be unnecessary
even
if the child is eighteen years old, has the strongest bonds with the father and
the mother has not shown the slightest interest
in the nurturing and development
of the child after the first few months. On those facts the mother’s
consent would, subject
to section 19 of the Act, always be necessary, but not
that of the father. It may be difficult to find justification in terms of
section 33 of the Constitution for this kind of discrimination. There is a
strong argument that the discrimination authorised by
the impugned section is
unreasonable in these circumstances and without justification in an open and
democratic society based on
freedom and equality.
[26] It was also
contended before us on behalf of the applicant that section 18(4)(d) of the Act
impermissibly discriminates between
married fathers and unmarried fathers.
There is also some substance in that objection. The effect of section 18(4)(d)
of the Act
is that the consent of the father would, subject to section 19, be
necessary in every case where he is or has been married to the
mother of the
child and never necessary in the case of fathers who have not been so married.
In the context of certain laws there
would often be some historical and logical
justification for discriminating between married and unmarried persons and the
protection
of the institution of marriage is a legitimate area for the law to
concern itself with. But in the context of an adoption statute
where the real
concern of the law is whether an order for the adoption of the child is
justified, a right to veto the adoption based
on the marital status of the
parent could lead to very unfair anomalies. The consent of a father, who after
his formal marriage
to the mother of the child concerned, has shown not the
slightest interest in the development and support of the child would, subject
to
section 19, always be necessary. Conversely a father who has not concluded a
formal ceremony of marriage with the mother of the
child but who has been
involved in a stable relationship with the mother over a decade and has shown a
real interest in the nurturing
and development of the child, would not be
entitled to insist that his consent to the adoption of the child is necessary.
The consent
of the mother only would, subject to section 19, be necessary even
if the only reason why the relationship between the couple has
not been
solemnised through a marriage is that the mother refuses to go through such a
ceremony, either on the ground that she has
some principled objection to formal
marriages or on some other ground.
[27] None of these anomalies would,
however, necessarily justify a simple striking down of all the words in section
18(4)(d) of the
Act after the word “child” where it occurs for the
first time. The result would be simply to make it necessary (subject
to the
provisions of section 19) for the consent of every parent to be given for the
proposed adoption of their child, regardless
of the circumstances. Such a
simplistic excision of the subsection would mean that every father could insist
on his consent to
the proposed adoption of the child even if the child was born
in consequence of the rape of the mother or of an incestuous
relationship.
[28] The anomalous examples which I have discussed in the
preceding paragraphs expose the undesirability of a blanket rule which (subject
to section 19) either automatically gives to both parents of a child a right to
veto an adoption or a blanket rule which arbitrarily
denies such a right to all
fathers who are or were not married to the mother of the child concerned.
[29] The anomalies which I have described in the preceding paragraphs
are not accommodated by such blanket rules. Even outside these
anomalous cases
such blanket rules fail to take into account other cases of a more complex
nature. A child born out of a union which
has never been formalised by marriage
often falls into the broad area between the two extremes expressed by the case
where he or
she is so young as to make the interests of the mother and the child
in the bonding relationship obvious and a child who is so old
and mature and
whose relationship with the father is so close and bonded as to make protection
of the father-child relationship equally
obvious. There is a vast area between
such anomalies which needs to be addressed by a nuanced and balanced
consideration of a society
in which the factual demographic picture and parental
relationships are often quite different from those upon which “first
world” western societies are
premised;[16] by having regard to
the fact that the interest of the child is not a separate interest which can
realistically be separated from
the parental right to develop and enjoy close
relationships with a child and by the societal interest in recognising and
seeking
to accommodate both.
[30] In addressing itself to these matters
the legislature might, however, have to consider the judicial and legislative
responses
in certain foreign jurisdictions to some of the problems to which I
have referred, but only insofar as they may be relevant to our
own
conditions.
USA
[31] Before 1972 the common law of the United
States did not require the consent of the father to the adoption of his child if
he
was not married to the mother. He was, in those circumstances, not even
entitled to notice of the proposed
adoption.[17] In 1972, in the case
of Stanley v Illinois[18] the
court had to consider the position of an unwed father who had cohabited with the
mother of his children intermittently for 18
years and had established a
substantial relationship with the children. The court held that before the
children could be separated
from their natural father he was entitled to a
hearing. The court emphasised that although most unmarried fathers might be
unsuitable
and neglectful parents not every unmarried father fell into this
category. The fitness of the father was made the test for the determination
of
his rights. Six years later in Quilloin v
Walcott[19] the court was
concerned with the adoption of a child who had lived with its mother and her
husband for eight years. The natural
father of the child who had never been
married to the mother contested an order sought for the adoption of the child by
the mother’s
lawful husband. The natural father had never supported the
child and the proposed adoptive father was living with the mother in
a stable
family unit. The court held that the test which had to be adopted was what was
in the best interests of the child. It
sanctioned the adoption.
[32] In
Caban v Mohammed[20] the
unwed father of two children had lived with their mother for several years and
contributed to the support of the family during
that period. The couple later
separated and the mother married another person who sought an order of adoption
in respect of the
two children of the relationship between their mother and
their natural father. Under New York law, only the consent of the mother
was
necessary for a competent adoption. The natural father had no right to veto the
adoption and could only succeed in stopping
the adoption if it was not in the
best interests of the children. The statute concerned was attacked on the
grounds that it discriminated
against the father on the grounds of gender. The
court upheld this objection on the basis that the difference in the treatment of
unmarried fathers and unmarried mothers did not bear a substantial relationship
to the interests of the state in promoting the adoption
of illegitimate
children.[21]
[33] In Lehr
v Robertson[22] the court was
again faced with a challenge to an adoption order by a natural father who had
not been married to the mother and who
had shown no interest in the child. The
Supreme Court held that the “mere existence of a biological link does not
merit equivalent
constitutional protection” for the unwed
father.[23] What needed to be
demonstrated was some interest in the child and a parental relationship with the
child.[24]
[34] What
appears from these and other cases in the United States is that an unwed father
does not have any automatic right to be
heard in proceedings for the adoption of
his children or to veto any such adoption. Such rights may only be accorded to
him if he
has taken the opportunity to take an interest in the child and
participated in its nurturing and development.
Statutory responses in
the United States
[35] With the increasing instances of cohabitation
between couples outside of formal marriages, the legislatures in the different
states in the United States have articulated different statutory responses to
the problems which arise when the issue of such relationships
are put up for
adoption. In some cases the consent of the putative father is made an absolute
requirement, but this requirement
can be dispensed with if it is in the best
interests of the child.[25] In
other cases the putative father’s consent is required only if he meets
certain established criteria such as proof of an
open acknowledgement of
paternity or regular support for the child or responsibility towards the welfare
of the child.[26] In more recent
times a Uniform Adoption Act has been formulated as a model to guide state
legislation, although it has not been
adopted by many states in the
USA.[27] In terms of this Act the
consent of a putative father is provided for only where such a father has a
relationship with the child
amounting to something more than the mere
acknowledgement of paternity. The consent of a putative father is required in
cases where
he-
a. is or has been married to the mother of the child if the child was born during the marriage or within 300 days after the marriage was terminated or a court has issued a decree of separation;
b. attempted to marry the mother before the child’s birth by a marriage solemnized in apparent compliance with the law, although the attempted marriage is or could be declared invalid, if the child was born during the attempted marriage or within 300 days after the attempted marriage was terminated;
c. has, under applicable law, been judicially determined to be the father of the child, or has signed a document which has the effect of establishing his parentage of the child; and
i. has provided support within his financial means and has regularly visited or communicated with the child; or
ii. married or attempted to marry the mother after the child’s birth in a marriage solemnized in apparent compliance with the law, although the attempted marriage is or could be declared invalid; or
d. has received the child into his home and openly held out the child as his own.[28]
In
terms of this Uniform Adoption Act the consent of the putative father is not
required in certain defined circumstances such as
the case where he has himself
relinquished the child to an agency for the purposes of adoption or where his
parental relationship
has been terminated or where he has been judicially
declared to be incompetent or where he has made a statement denying paternity
or
where the court determines that consent is being withheld contrary to the best
interests of the
child.[29]
Canada
[36] In
the leading case of Re MacVicar and Superintendent of Family and Child
Services et al[30] the mother of
the child to be adopted had consented to the adoption. The unwed father brought
an application to the British Columbia
Supreme Court in which he contended that
the relevant statutory provision of British Columbia which dispensed with the
need for the
father’s consent where the mother and the father of the child
had never gone through a form of marriage with each other was
inconsistent with
the equality guarantee of the Canadian Charter of Rights and
Freedoms.[31] The court held that
the impugned section was indeed inconsistent with the Charter because it
discriminated against the father on
the grounds of sex and on the grounds of
marital status and had the effect of permitting a severance of the
father’s relationship
with his child without his consent but precluded
such a severance of the mother’s relationship with the child without her
consent.
The court could see no justification for such discrimination in terms
of the limitations clause of the Charter.
[37] Following on this
litigation there was a statutory amendment to section 8(1) of the British
Columbian statute which generally
requires the consent of both parents before an
adoption can be made, but which only includes certain categories of natural
fathers
within the definition of a “parent”, such as a man who has
acknowledged paternity of the child by having signed the child’s
Registration of Live
Birth.[32]
[38] In the case
of Re T. and Children’s Aid Society and Family Services of Colchester
County[33] the Court upheld a
Nova Scotia statute which provided that a child could not be placed in a home
for the purposes of adoption pursuant
to an adoption agreement, unless and until
every parent of the child had entered into such an agreement but which defined a
parent
so as to include the mother of the child in all cases but so as to
exclude the father from the definition, save where there has been
some
involvement with his child by way of support or
access.[34] The reasoning of the
Court was that, properly interpreted, the relevant statute only affected a
relatively small group of fathers
who had established no paternal interest and
had not been married to the mother of the child.
European Court of
Human Rights
[39] In the case of Keegan v
Ireland[35] the relevant part of
the Irish Adoption Act, 1952 provided that an adoption order could not be made
without the consent of the child’s
mother and the child’s guardian.
A married man was recognised as a guardian of his children but an unmarried man
could only
become a guardian if so appointed by the Court. This provision was
attacked before the European Commission of Human Rights and the
European Court
of Human Rights on three grounds. The first ground was that it constituted a
breach of Article 8 of the European
Convention on Human Rights and Fundamental
Freedoms because it invaded the right of persons to family and private
life.[36] The second ground was that
the statute contravened Article 6(1) of the Convention which guarantees a fair
and public hearing of every
person’s civil rights and obligations, and the
third ground was that the statute was a violation of Article 14 which guarantees
the right to equality. Both the European Commission and the European Court of
Human Rights upheld the first and the second grounds
and therefore found it
unnecessary to deal with the third.
The United Kingdom
[40] The
relevant statutory provision dealing with adoptions is the Adoption Act of 1976,
as amended. Ordinarily it requires the
parents of a child to consent to the
child’s adoption, but section 72(1) of the Act, as amended by Schedule 10
to the Children’s
Act of 1989, defines a parent to mean any parent who has
parental responsibility for the child under the Children’s Act. In
terms
of the latter Act, a mother always has parental responsibility for the child,
but if the father is not married to the mother
at the time of the birth of the
child, he only has parental responsibility if he acquires such responsibility by
order of the Court
or this is provided for by a parental responsibility
agreement between the natural parents of the
child.[37]
[41] The natural
father is therefore not excluded from any decision-making process as to whether
the child should be freed for adoption.
He can preclude that, in terms of
section 16 of the Adoption Act, by acquiring parental authority and thus falling
within the definition
of a “parent”. The court could in such
circumstances only free the child for adoption if one of the exceptions in
section
16(2) of the Adoption Act
applies.[38]
[42] Effectively
therefore, the father of an illegitimate child is not automatically barred from
opposing a proposed adoption of his
“illegitimate” child. Unless he
falls within one of the exceptions which we have dealt with in section 16(2) of
the
Adoption Act, it is necessary for him to agree to the making of an adoption
order if he has succeeded in acquiring parental responsibility
in terms of
section 4 of the Children’s Act by showing that he is willing to acquire
the obligations and duties of a father
in relation to the support and upbringing
of the child.
The effect of the foreign responses
[43] What is
evident from the modern legislative and judicial responses to the problems
associated with adoption is the recognition
of the fact that in determining the
rights of fathers to withhold their consent to the adoption of their children it
may be too simplistic
merely to draw a distinction between married and unmarried
fathers, and it may equally be too simplistic to discriminate between
the
mothers and fathers of children born in consequence of a union not formalized by
marriage. Unmarried fathers, by the acceptance
of their paternity and parental
responsibility, may often be qualified to make the most active inputs into the
desirability of such
an adoption order and in certain circumstances they may
legitimately wish to withhold their consent to such an adoption order. It
is
equally evident that not all unmarried fathers are indifferent to the welfare of
their children and that in modern society stable
relationships between unmarried
parents are no longer exceptional. The statutory and judicial responses to
these problems are therefore
nuanced having regard to the duration of the
relationship between the parents of the children born out-of-wedlock, the age of
the
child sought to be given up for adoption, the stability of the relationship
between the parents, the intensity or otherwise of the
bonds between the father
and the child in these circumstances, the legitimate needs of the parents, the
reasons why the relationship
between the parents has not been formalised by a
marriage ceremony and generally what the best interests of the child
are.[39] The Act in the present
case may be open to attack on the grounds that it shows no adequate sensitivity
to these nuances. The consent
of the mother of a child born out-of-wedlock is
(subject to the provisions of section 19) always a precondition. That of the
father,
never. There is accordingly a strong argument against the
constitutionality of section 18(4)(d) of the Act in that form, but it
is for
Parliament and not for this Court to formulate what it considers to be an
appropriate statutory formulation which would meet
this argument, regard being
had to the responses which have found favour in other jurisdictions and regard
being further had to any
special circumstances appropriate to our own history
and conditions impacting on the problem.
[44] The question of parental
rights in relation to adoption bears directly on the question of gender
equality. In considering appropriate
legislative alternatives, parliament
should be acutely sensitive to the deep disadvantage experienced by the single
mothers in our
society. Any legislative initiative should not exacerbate that
disadvantage. In seeking to avoid doing so, it may well be that the
legislative
approaches adopted in “first-world” countries described in the
preceding paragraphs should be viewed with
caution. The socio-economic and
historical factors which give rise to gender inequality in South Africa are not
always the same
as those in many of the “first-world” countries
described.[40] The task facing
parliament is thus a challenging one.
The proper order
[45] In
terms of section 98(5) of the Constitution, if this Court finds that any law or
any provision thereof is inconsistent with
the Constitution, “it shall
declare such law or provision invalid to the extent of its inconsistency”.
But the proviso
to this subsection gives jurisdiction to this Court, “in
the interests of justice and good government” to require Parliament,
within the period specified by the Court, to correct the defect in the law or
the provision “which shall then remain in force
pending correction or the
expiry of the period so specified”.
[46] The first question which
arises is whether the Court should declare section 18(4)(d) of the Act invalid
in its entirety or whether
it is possible to sever from its provisions all the
words after the word “child” where it occurs for the first time in
the subsection and merely declare these words to be invalid.
[47] In my
view such a severance of the offending portions of the subsection is not
justified. A simple deletion of all the words
in the section which discriminate
against the father of an illegitimate child would mean that section 18(4)(d) of
the Act would be
substituted by a simple requirement that in all cases of
adoption the consent of both parents of a child would be necessary, save
in the
circumstance described in section 19 of the Act.
[48] I am not satisfied
that such a truncated residue of section 18(4)(d) would adequately reflect what
Parliament would wish to retain
if it became alive to the fact that the section
was vulnerable on constitutional grounds for the reasons which I have described.
The consequences of such a truncated subsection would be that the consent of
every father would always be necessary before an adoption
order could be made,
unless the circumstances described in section 19 were of application. The
father of a child born in consequence
of the rape of the mother or an incestuous
relationship would be entitled to assert that his consent should first be
procured before
the adoption order can effectively be made. Such a requirement
is not justified. The lawmaker may consider it gravely objectionable
for the
consent of such a father to become compulsory for a valid adoption, even if this
was subject to the exceptions contained
in section 19 of the
Act.
[49] There is another fundamental problem: even if the fathers of
children born in consequence of the rape of the mother or an incestuous
relationship were to be excluded specifically from the requirement that both
parents of the child to be adopted must consent to the
adoption, the effect
would still be to put all other fathers and mothers in the position where their
consent was necessary to the
adoption, save in the circumstances set out in
section 19. This is again not always rational or justifiable and the
legislature
may want a different formulation to accord with what is rational and
desirable. Why should the consent of a father who has had a
very casual
encounter on a single occasion with the mother have the automatic right to
refuse his consent to the adoption of a child
born in consequence of such a
relationship, in circumstances where he has shown no further interest in the
child and the mother has
been the sole source of support and love for that
child? Conversely, why should the consent of the father not ordinarily be
necessary
in the case where both parents of the child have had a long and stable
relationship over many years and have equally given love and
support to the
child to be adopted? Indeed, there may be cases where the father has been the
more stable and more involved parent
of such a child and the mother has been
relatively uninterested in or uninvolved in the development of the child. Why
should the
consent of the mother in such a case be required and not that of the
father? The fact that there is no formal marriage between the
parents who have
lived together may even be due to the steadfast refusal of the mother to marry
the father and not owing to any unwillingness
on his part to formalise their
relationship or to accept his responsibility towards the child.
[50] The
next question which arises is whether the Court should simply declare section
18(4)(d) of the Act to be invalid without invoking
the proviso to section 98(5)
of the Constitution or whether “the interests of justice and good
government” justify an
order which would give Parliament an opportunity of
correcting section 18(4)(d). Having regard to the difficulties mentioned above
and the multifarious and nuanced legislative responses which might be available
to the legislature in meeting these issues, it seems
to me that this is a proper
case to exercise our jurisdiction in terms of section 98(5) of the Constitution
by requiring Parliament
to correct the defects which I have identified in
section 18(4)(d) of the Act by an appropriate statutory provision. The
applicant
is not the only person affected by the impugned provision. There are
many others and it is in the interests of justice and good
government that there
should be proper legislation to regulate the rights of parents in relation to
the adoption of any children
born out of a relationship between them which has
not been formalized by marriage.
[51] In the meanwhile, it would be
quite chaotic and clearly prejudicial to the interests of justice and good
government if we made
any order in terms of section 98(6) of the Constitution
which might have the effect of invalidating any adoption order previously
made
pursuant to section 18 of the Act. What is clearly called for in the
circumstances of the present case is an order in terms
of the proviso to section
98(5) of the Constitution which would allow section 18(4)(d) to survive pending
its correction by Parliament
within what would be a reasonable period. Regard
being had to the complexity and variety of the statutory and policy alternatives
which might have to be considered by Parliament it appears to me that such a
reasonable period should be two years.
Order
[52] I would
accordingly make the following order:
1. It is declared that section 18(4)(d) of the Child Care Act 74 of 1983 is inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 and is therefore invalid to the extent that it dispenses with the father’s consent for the adoption of an “illegitimate” child in all circumstances.
2. In terms of the proviso to section 98(5) of the Constitution, Parliament is required within a period of two years to correct the defect in the said provision.
3. The said provision shall remain in force pending its correction by Parliament or the expiry of the period specified in paragraph 2.
Chaskalson P, Ackermann J, Didcott J, Kriegler J,
Langa J, Madala J, Mokgoro J, O’Regan J and Sachs J concur in the judgment
of Mahomed DP.
For the applicant: W Trengove SC, R Hutton and M Chaskalson instructed by
Soller and Manning
For the second respondent: N Davis instructed by Van Der Walt &
Hugo
For the third respondent: CJ Hartzenberg SC and CJ Van Schalkwyk instructed
by Dion Röder and Heunis
For the amici curia: DM Davis instructed by Centre for Applied Legal
Studies and others
For the amicus curiae: B Spilg, J Clark, P Jammy; EJP Olivier and N Barnes
(attorneys at Brink Cohen Le Roux & Roodt Inc);
SB Fine (attorney at
Shelley B Fine); C Formanek (attorney at Harvey Nossel); and M Budow (attorney
at E F K Tucker); instructed
by Lawyers for Human Rights
For the
Department of Welfare
and Population Development: DA Smith SC and S Hassim instructed by the State Attorney
[1] Fraser v Naude (WLD) Case No 28831/95, 8 December 1995, not yet reported.
[2] The children born of unions not formalised by marriage have traditionally been described as “illegitimate” children. Such a description has the potential to stigmatise such children. When the law refers to “illegitimate” children, however, what it is describing is simply the issue of a union or relationship not solemnised by a legally recognised marriage ceremony and this is the sense in which I will use the expression in this judgment.
[3] Fraser v Naude (WLD) Case No 28831/95, 26 February 1996, not yet reported, (judgment of Wunsh J).
[4] Fraser v Children’s Court, Pretoria North and Others 1996 (8) BCLR 1085 (T).
[5] These four requirements appear clearly from the judgments of this Court in S v Mhlungu and Others 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC) at para 59; Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) at paras 6 and 8; Luitingh v Minister of Defence 1996 (2) SA 909 (CC); 1996 (4) BCLR 581 (CC) at paras 4 and 6; Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC); 1996(4) BCLR 449 (CC) at para 2; Brink v Kitshoff 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC) at paras 8 and 9; Tsotetsi v Mutual and Federal Insurance Company Ltd 1996 (11) BCLR 1439 (CC) at para 4; S v Bequinot 1996 (12) BCLR 1588 (CC) at para 7.
[6] See Luitingh’s case supra n 5 at para 9; Brink v Kitshoff supra n 5 at para 10 and Tsotetsi’s case supra n 5 at para 5.
[7] Fraser v Children’s Court, Pretoria North and Others supra n 4 at 1099H-I.
[8] Section 19 reads as follows:
“Circumstances in which consent to adoption may be dispensed with.-No consent in terms of section 18(4)(d) shall be required-
(a) in the case of any child whose parents are dead and for whom no guardian has been appointed;
(b) from any parent-
(i) who is as a result of mental illness incompetent to give any consent;
or
(ii) who deserted the child and whose whereabouts are unknown; or
(iii) who has assaulted or ill-treated the child or allowed him to be
assaulted or ill-treated; or
(iv) who has caused or conduced to the seduction, abduction or prostitution
of the child or the commission by the child of immoral
acts; or
(v) whose child is by virtue of the provisions of section 16(2) in the
custody of a foster parent or is a pupil in a children’s
home or a school
of industries; or
(vi) who is withholding his consent unreasonably.”
[9] Quoted in para 4 of this judgment.
[10] Section 8 of the Constitution provides:
“(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.
(3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.
(b) Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with subsection (2) had that subsection been in operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with sections 121, 122 and 123.
(4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.”
[11] Brink v Kitshoff supra n 5 at para 33; S v Makwanyane and Another 1995(3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at paras 155 - 6 and 262; Shabalala and Others v Attorney-General, Transvaal and Another 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC) at para 26.
[12] Seedat’s Executors v The Master (Natal) 1917 AD 302; Ismail v Ismail 1983 (1) SA 1006 (A). Cf Ryland v Edros (CPD) Case No 16993/92, 13 August 1996, not yet reported.
[13] See Fyzee Outlines of Muhammadan Law 2ed (Oxford University Press, London 1949) Chapters II, V, VI and VII.
[14] See, for example, Bekker Seymour’s Customary Law in Southern Africa 4ed (Juta, Cape Town 1989) 126.
[15] On this ground the present situation is distinguishable from the problem adverted to in passing in Nel v Le Roux NO and Others 1996(4) BCLR 592 (CC) at para 25.
[16] See “Introduction: Assessing Legitimacy in SA” in Burman and Preston-Whyte (eds), Questionable issue: Illegitimacy in SA (Oxford University Press, Cape Town 1992).
[17] Wehner, Comment: Daddy Wants Rights Too: A Perspective on Adoption Statutes, 31 Houston Law Review 691, 693 (1994).
[18] 405 US 645 (1972).
[19] 434 US 246 (1978).
[20] 441 US 380 (1979).
[21] Id at 393.
[22] 463 US 248 (1983).
[23] Id at 261.
[24] This approach also appears from the more recent cases in the United States. See Michael H. v Gerald D. 491 US 110 (1989); Ruben Pena v Edward Mattox 84 F 3d 894 (1996) and In re Petition of John Doe and Jane Doe, Husband and Wife, to Adopt Baby Boy Janikova 159 Ill 2d 347, 638 NE 2d 181 (1994).
[25] Wehner supra n 17 at 705.
[26] Id at 706-7.
[27] Uniform Adoption Act 9 U.L.A. 11 (1988 & Supp. 1994).
[28] Id section 2-401. These grounds would not have assisted the applicant on the facts of the present case.
[29] Id section 2-402.
[30] (1986) 34 DLR (4th) 488 (British Columbia Supreme Court).
[31] Section 8(1)(b) of the Adoption Act, RSBC 1979, c.4 at that time, provided:
“8(1) Subject to the provisions of subsection (8), no adoption order may be made without the written consent to adoption of
. . .
(b) the parents or surviving parent of the child, but where the mother and father have never gone through a form of marriage with each other and the child has not previously been adopted, only her consent is required;
. . .”
Subsection (8) provided for the court to dispense with the requisite consents on certain grounds not dissimilar to the grounds listed in section 19 of the South African Child Care Act.
[32] Section 8(1) now reads as follows:
“8.(1) Subject to the provisions of subsection (8), no adoption order may be made without the written consent to adoption of
(a) the child, if over the age of 12 years;
(b) the parents or surviving parent of the child;
(c) the applicant’s spouse, where the application for adoption is made by a husband only or a wife only;
(d) the lawful guardian of the child where the child has no parent whose
consent is necessary under this subsection, or of the Public
Trustee if the
child has no other lawful guardian or if the other lawful guardian cannot be
found.
(1.1) For the purpose of subsection (1) and of section 4, “parent” means
(a) the mother of the child,
(b) a man who has acknowledged paternity of the child by having signed the child’s Registration of Live Birth,
(c) a man who is or was the guardian of the child’s person or joint guardian of the child’s person with the mother,
(d) a man who has acknowledged paternity and who has custody or access rights by court order or agreement, and
(e) a man who has acknowledged paternity and has, pursuant to an order of the Supreme Court or any other court or otherwise, supported, maintained or cared for the child.”
[33] (1992) 91 DLR (4th) 230.
[34] The Children and Family Services Act, SNS 1990, c.5, s67(1):
“In this Section and Sections 68 to 87,
. . . .
(f) “parent of a child means
(i) the mother of the child,
(ii) the father of the child where the child is a legitimate or legitimated child,
(iii) an individual having custody of the child,
(iv) an individual who, during the twelve months before proceedings for adoption are commenced, has stood in loco parentis to the child,
(v) an individual who, under a written agreement or a court order, is required to provide support for the child or has a right of access to the child and has, at any time during the two years before proceedings for adoption are commenced, provided support for the child or exercised a right of access,
(vi) an individual who has acknowledged paternity of the child and who
(A) has an application before a court respecting custody, support or access for the child at the time proceedings for adoption are commenced, or
(B) has provided support for or has exercised access to the child at any time
during the two years before proceedings for adoption
are commenced,
but does
not include a foster parent.
. . . .”
[35] (1994) 18 EHRR 342.
[36] Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[37] Sections 2 and 4 of the Children’s Act of 1989.
[38] In terms of that subsection the agreement of such a parent to the making of an adoption order can only be dispensed with on the grounds that he-
“(a) cannot be found or is incapable of giving agreement;
(b) is withholding his agreement unreasonably;
(c) has persistently failed, without reasonable cause to discharge the parental duties in relation to the child;
(d) has abandoned or neglected the child;
(e) has persistently ill-treated the child;
(f) has seriously ill-treated the child . . . .”
[39] See Bethell v Bland and Others 1996 (2) SA 194 (W); B v S 1995 (3) SA 571 (A).
[40] See paragraph 29 above.
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