Balancing the scales - access by a natural father to his extra-marital child

Wolhuter, Lorraine (1997). Balancing the scales - access by a natural father to his extra-marital child. Stellenbosch Law Review, 8(1) pp. 65–79.

Abstract

Judicial (and legislative) expositions of a natural father's access to his child manifest the operation of two competing ideologies. The dominant approach, in terms of which a natural father, unlike a legitimate father, has no inherent right of access to his child but will be awarded access if the court deems it in the best interests of the child, is founded upon an ideology of maternal autonomy. The alternative approach, in terms of which a natural father is either given an inherent right of access or is placed in a preferential position to that of outsiders by virtue of his biological link with the child, is premised upon an ideology of formal equality. The infustion of the criterion of the best interests of the child with either of these ideologies, in addition to the employment of an individualistic concept of parental rights, obfuscates the social asymmetry of the maternal and the paternal relationship with the child and thereby perpetuates substantive gender inequality. The constitutionality of the current law of access will be assessed in the light of these considerations. The analysis will centre upon the relevant provisions of the final Constitution and the analogous provisions of comparable jurisdictions and international instruments. It will be argued that a via media, premised upon the reformulation of a natural father's right of access to encompass both shared parenting and a social relationship withthe child, is conducive to the attainment of substantive gender equality.

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