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Law of Persons 2011

Lecture 11: Status of children born of unmarried parents: (1) Rebutting the presumptions of paternity (blood tests) & (2) acquisition of PR & R

Agenda
Status of children born of unmarried parents
1. Question from last week (s 36) 2. Rebutting the presumptions of paternity:
Compulsion to take blood tests?

3. Parental responsibilities and rights:


Introduction and definition Acquisition by mother Background to issues: acquisition by father

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 Act 38 of 2005 departs from this standard and the problems 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 (Pater quem)? Is this discrepancy justifiable? (What are the rights at play?) How could this section be challenged? Note especially here its practical implications.

Possible ways to rebut presumptions of paternity NB: These ways are applicable to both presumptionsalthough it is arguable that section 36 changes the standard of proof for this evidence in respect of unmarried men. 1. Absence of sexual intercourse 2. The gestation period 3. Sterility 4. The exceptio plurium concubentium 5. Physical features 6. Contraceptives 7. Blood and tissue tests

Compulsion to undergo blood and tissue type testing?


Statutory law on blood tests?
In criminal matters, refer to sections 57 and 225 of the Criminal 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 of Childrens Act and section 21 of the Maintenance Act.

Section 37 of the Childrens Act, governing the refusal to submit to the taking of blood samples, provides thusly:
If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.

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 [] the maintenance court may
a) make such provisional order as [... it] may think fit relating to the payment of the costs involved in the carrying out of the scientific tests in question, including a provisional order directing the State to pay the whole or any part of such costs; or make no order.

b)

S v L 1992:

Judge Burger v full bench


Judicial notice of nature & accuracy of blood tests.

LB v YD (court a quo):

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 (upper guardian / s28). This outweighs any parents right to privacy. It is also a relatively minor infringement. The court has the inherent power to regulate its own procedures 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 of justice and should be pursued because it invariably is the best means of doing justice.

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 R and 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.

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 of Wahrheit ber alles not to be generalised

Parental responsibilities and rights


Consult Chapter 3 of the Childrens Act (most of whose sections came into operation on July 1, 2007). Previously parental power consisted of guardianship, custody and access. Parental power was determined by considering the 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 the status of the child in relation to parental rights and responsibility.

Section 18 of the Childrens Act


This section partly codifies the legal rules regarding parental power but recasts them into parental rights. See section 18(2), where the listed elements roughly match the components of parental power (custody, access, guardianship):
CUSTODY vs CARE ACCESS vs CONTACT GUARDIANSHIP

NB: Ex Parte Sibisi

Section 10 and 31 of the Childrens Act


Section 18 of the Childrens Act deals with major decisions involving the child. It overlaps with section 10. It ensures the participation, where appropriate, of the child. Example:
Van Coeverden de Groot case (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.

For tomorrow:

Read ss 19-27, 38 & 242(2)(a) of the Childrens Act Read S v J