Parental responsibilities and rights (PRR) in South Africa are awarded differently depending on whether parents are married or unmarried. Despite this difference, once PRR have been acquired, a challenge arises when the parties are no longer together and the woman is left with the “burden” of raising the child(ren).

The question arises whether PRR should continue to be equally distributed in what is clearly a disproportionate situation.

Section 21 of the Children’s Act makes provision for unmarried fathers to acquire parental responsibilities and rights in respect of children born from a relationship with the unmarried mother.

Married fathers automatically acquire these rights by virtue of their marriage to the child’s mother in terms of section 20 of the same act. As a consequence, the father is a permanent legal fixture in the child’s life.

For example, the father’s permission is thus required in order to obtain a passport, his details are included on school applications, and the father’s consent is needed if the mother wants to relocate to another province or abroad. These requirements need to be met regardless of whether the father is present in the child’s life or does not contribute at all.

In South Africa, and across the world, there is a high incidence of “dead-beat dads” with the incidence increasing annually. This unfortunate state of affairs means that mothers are often left with the sole responsibility of raising the children alongside a “shadow” parent.

These “shadow” parents make minimal contribution to the child’s day-to-day life, have limited contact with the child, and in some instances barely pay maintenance. Eventually, years pass with no contact between this parent and child.

In the meantime, the mother needs to navigate the child’s needs without the involvement of the other parent unless legally required.

The obvious solution in these instances would be to apply for the termination, suspension or restriction of parental responsibilities and rights, which is permitted in terms of section 28 of the Children’s Act. A parent who wishes to consider this route may apply to the high court, a divorce court in a divorce matter, or a children’s court for such an order.

However, all of these options require the parent to incur legal costs, something which the average South African can ill afford. Invariably, the inability to pursue this route means that many parents are stuck with the situation and every instance where the father’s involvement is legally required remains a struggle.

So, what is the solution? The Children’s Act makes provision for access to court both for the child and for an interested party (in this case, the mother). However, the practicality of access is often hampered by a number of challenges, including a lack of financial resources.

The child may additionally not want to bring such an application in the hopes that the relationship with the dad will someday recover. This leaves the mother in a difficult position.

It is unlikely that the “dead-beat dad” or “shadow” parent will voluntarily relinquish his parental responsibilities and rights. There is thus a need for a simpler process for such rights to be restricted or terminated.

Even applying for maintenance is a complex and lengthy process involving numerous trips to the maintenance office for something that is often urgently needed. The termination or suspension of PRR of a “shadow” parent which is, arguably, less urgent, may thus not be a priority.

The sad reality is that when faced with taking time off from work more than once, a single parent may just bear with the situation and struggle to get the father’s consent when it is legally required even though he does not contribute or fulfil any meaningful role in the child’s life.

I am aware that a one-size-fits-all approach cannot be taken due to the complexities surrounding this issue. However, should the Children’s Act possibly be amended to allow for PRR to be limited and a dead-beat dad’s consent be dispensed with if certain requirements are met, much in the same way that PRR are automatically acquired if certain conditions are met?

The reality exists that the requirements which allow fathers to automatically acquire PRR at the start of a child’s life may no longer be satisfied further down the line. DM

Dr Carmel van Niekerk is a Senior Lecturer in the Department of Private Law at the University of the Western Cape.