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Law of Persons 2011Lecture 11: Status of children born of unmarried

parents: (1) Rebutting the presumptions of paternity

(blood tests) & (2) acquisition of PR & R

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June 2009 exam question

Normally, the onus of proof or rebuttal in civil matters

is proof or rebuttal on a balance of probabilities.Critically discuss how section 36 of the Childrens Act38 of 2005 departs from this standard and theproblems it raises. (8)

What does section 36 say? What is the onus of proof?

How is this different from

its predecessor (Child Status Act s1)?

the presumption in respect of married women (Paterquem)?

Is this discrepancy justifiable? (What are the rights atplay?)

How could this section be challenged? Note especiallyhere its practical implications.

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Possible ways to rebut presumptions

of paternity

NB: These ways are applicable to bothpresumptionsalthough it is arguable thatsection 36 changes the standard of proof forthis evidence in respect of unmarried men.

1. Absence of sexual intercourse2. The gestation period

3. Sterility

4. The exceptio plurium concubentium5. Physical features

6. Contraceptives

7. Blood and tissue tests

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Compulsion to undergo blood and tissue

type testing? Statutory law on blood tests?

In criminal matters, refer tosections 57 and 225 of theCriminal Procedure Act.

In civil matters, previously, the point of reference was the relevant SALRC Report

and section of 2 the Child Status Act;

now, it is section 37 ofChildrens Actand section 21 of theMaintenance Act.

Section 37 of the Childrens Act, governing the refusalto submit to the taking of blood samples, provides

thusly:If a party to any legal proceedings in which the paternity of a child hasbeen placed in issue has refused to submit himself or herself, or thechild, to the taking of a blood sample in order to carry out scientifictests relating to the paternity of the child, the court must warn suchparty of the effect which such refusal might have on the credibility of

that party.

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Courts power to take judicial notice of the

technique and reliability of blood tests?

Section 21 of the Maintenance Act:3) At the conclusion of the enquiry [] themaintenance court may

a) make such provisional order as [... it] may think fit relating tothe payment of the costs involved in the carrying out of thescientific tests in question, including a provisional order

directing the State to pay the whole or any part of suchcosts; or

b) make no order.

S v L 1992: Judge Burger v full bench

LB v YD(court a quo): Judicial notice of nature & accuracy of blood tests.

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Compulsion to undergo blood and tissue

type testing?

No consistency by the courts. Pro-compulsion:

It is in the best interests of the child to know the truth (upperguardian / s28).

This outweighs any parents right to privacy.

It is also a relatively minor infringement.

The court has the inherent power to regulate its ownprocedures and the collection of evidence.

Not to allow testing would be to harm the legitimacy and

administration of justice (best available evidence). There has been a significant change in the policy towards

unmarried fathers.

LB v YD: truth is a primary value in the administration ofjustice and should be pursued because it invariably is the

best means of doing justice.

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Compulsion to undergo blood and tissue

type testing? (continued...) Anti-compulsion:

The child could be bastardised and potentially lose a

source of maintenance. (This argument was rejected both

in M v Rand in LB v YD.)

The legislature would have said that compulsion was

kosher if it was.

The courts power as upper guardian is restricted to care

issues.

This is not a procedural issue; it affects the principles of

substantive law.

It entails an infringement of bodily integrity and privacy.

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Compulsion to undergo blood and tissue

type testing? (continued...) Does the SCA decision in YM v LB resolve matters?

Where paternity is shown on a balance of probabilities, scientific

testing is unnecessary.

Paternity in this case was therefore not actually in dispute: The

husband wanted scientific proof something to which he was not

entitled.

Note, however, the obiter dictum in paragraph 13:

It is within the inherent power of a court, as upper guardian, to order scientific tests

if this is in the best interests of the child.

Indeed s37 anticipates the use of scientific tests to determine paternity.

In paragraph 15, however, the court rejects the way ofWahrheit ber

allesnot to be generalised

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Parental responsibilities and rights

Consult Chapter 3 of the Childrens Act (most ofwhose sections came into operation on July 1,2007).

Previously parental power consisted ofguardianship, custody and access.

Parental power was determined by consideringthe legitimacy of the child.

Custody has since been replaced with care.

Access has since been replaced with contact. Furthermore, we no use words like legitimate,

illegitimate and extramarital to determine thestatus of the child in relation to parental rights and

responsibility.

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Section 18 of the Childrens Act

This section partly codifies the legal rulesregarding parental power but recasts theminto parental rights.

See section 18(2), where the listed elementsroughly match the components of parentalpower (custody, access, guardianship): CUSTODY vs CARE

ACCESS vs CONTACT GUARDIANSHIP

NB: Ex Parte Sibisi

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Section 10 and 31 of the Childrens Act

Section 18 of the Childrens Act deals with majordecisions involving the child.

It overlaps with section 10.

It ensures the participation, where appropriate, of

the child.

Example:

Van Coeverden de Grootcase (relocation issue):

NB: age, maturity, stage of development of the child Para 17: [The experts for the applicant] advocate that

their voices not be heard. I find this astonishing.

Para 21: The attitude of the children was neither

properly considered nor accorded due weight by the

applicants experts.

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For tomorrow:

Read ss 19-27, 38 & 242(2)(a) of the

Childrens Act

Read S v J