Abstract:
This note addresses the right of the unmarried biological father to contact with his child in circumstances where the mother is married to another man at the time of birth of the child. The right is investigated from a European perspective based on two recent judgments by the European Court on Human Rights (ECtHR). The extent to which such a biological father can contest the husband’s paternity (based on the presumption pater est quem nuptiae demonstrant), as well as the importance of protecting such a biological father’s "intended family life" (for purposes of a right to contact) within the context of Article 8 of the European Convention on Human Rights, are investigated. The position in a few European jurisdictions is compared with that in South Africa. In South Africa the position seems to be dictated by the best-interests-of-the-child principle. This seems to be in line with the view advocated by the ECtHR. The ECtHR, however, also provides valuable guidelines pertaining to the protection of "intended family life" which can be of use to South African courts in an application by the biological father to obtain a right to contact in terms of section 23 of the Children’s Act.
