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Law of Persons 2011Lecture 10: Status of children born of unmarried

parents (proof of paternity)

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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.

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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 extra-

marital:

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Paterpresumption: Case law

F v L : The court correctly applied thepaterrule, 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.

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Proof of Paternity: unmarried woman

Prior to the Child Status Act:

If the mother of the child named a particular man asthe father, and he admitted, or it was proved, thathe had sex with herat any t ime, he was presumedto be the father.

Under the Child Status Act (s1): A man is presumed to be the fatheronlyif it isadmitted or proved that he had sex with the motherat the timewhen the chi ld could have beenconceivedin the absence (NB!) of evidence to

the contrary. Under Childrens Act (s 36)?

The proof of paternity is similar to section 1 of the ChildrensStatus Act.

The qualification, however, is different: in the absence of

evidence to the contrary wh ich raises a reasonabledoub t.

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June 2009 examthink about how you would

respond to this questionto 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 section36 of the Childrens Act 30 of 2005 departs

from this standard and the problems it

raises. (8 marks)

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Possible ways to rebut presumptions

of paternity

NB: These ways are applicable to bothpresumptions although it is arguable thats 36 changes the standard of proof for this

evidence in respect of unmarried men:1. Absence of sexual intercourse2. The gestation period

3. Sterility

4. The exceptio plurium concubentium: the plea (ordefense) of several lovers.

5. Physical features

6. Contraceptives

7. Blood and tissue tests

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Types of blood tests

1. Oldest test: Analysis of red blood cells.

This test will sometimes indicate that the mancannotbe 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 DNAhereditary structures.

This test, too, can positively identify the naturalfather.

See Ex Parte Emmerson.

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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?