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Law of Persons 2011

Lecture 10: Status of children born of unmarried parents (proof of paternity)

Agenda
Status of children born of unmarried parents Terminology (pre- and post- Childrens Act) Proof of paternity:
Presumptions in our law. Rebutting the presumptions:
NB: blood- and tissue-testing.

Proof of Paternity
The creation of presumptions of paternity:
1. Married woman. 2. Unmarried woman.

1.Married woman:
The father is presumed to be the spouse:
Pater est quem nuptiae demonstrant.

This presumption is rebuttable (on a balance of probabilities). The best interests of the child are the paramount consideration. The courts are unwilling to declare child extramarital:

Pater presumption: Case law


F v L:
The court correctly applied the pater rule, which established a rebuttable presumption in favour of the 2nd respondent (528). But the court incorrectly applied another presumption:
When a woman has sexual intercourse with more than one partner, it may be assumed that the man of her choice is the father of the child (528).

B v E:
The court held that it is not in the best interests of the child to be declared illegitimate.

Proof of Paternity: unmarried woman


Prior to the Child Status Act: If the mother of the child named a particular man as the father, and he admitted, or it was proved, that he had sex with her at any time, he was presumed to be the father. Under the Child Status Act (s1): A man is presumed to be the father only if it is admitted or proved that he had sex with the mother at the time when the child could have been conceivedin the absence (NB!) of evidence to the contrary. Under Childrens Act (s 36)?

The proof of paternity is similar to section 1 of the Childrens Status Act. The qualification, however, is different: in the absence of evidence to the contrary which raises a reasonable doubt.

June 2009 examthink about how you would respond to this question to discuss next week

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 Act 30 of 2005 departs from this standard and the problems it raises. (8 marks)

Possible ways to rebut presumptions of paternity NB: These ways are applicable to both presumptions although it is arguable that s 36 changes the standard of proof for this evidence in respect of unmarried men:
1. 2. 3. 4. Absence of sexual intercourse The gestation period Sterility The exceptio plurium concubentium: the plea (or defense) of several lovers. Physical features Contraceptives Blood and tissue tests

5. 6. 7.

Types of blood tests


1. Oldest test: Analysis of red blood cells. This test will sometimes indicate that the man cannot be the father of the child. 2. HLA system of tissue typing: analysis of white blood cells. This test can positively identify the natural father. According to the case law, it is between 99,85% and 99.9% accurate. 3. DNA system of identification: analysis of DNA hereditary structures. This test, too, can positively identify the natural father. See Ex Parte Emmerson.

Can a court compel a person to undergo blood tests to resolve the issue of paternity? To think about for next week:
What are the arguments used in case law to answer this question? Is there any definitive answer in our case law? Does section 37 of the Childrens Act affect matters?