Fraser v Children's Court, Pretoria North

Fraser v Children's Court, Pretoria North
Court	Constitutional Court of South Africa
Full case name	Fraser v the Children's Court, Pretoria North and Others
Decided	5 February 1997 (1997-02-05)
Citations	[1997] ZACC 1, 1996 (8) BCLR 1085, 1997 (2) SA 218
Case history
Prior action	Referral from the Transvaal Provincial Division in terms of section 102 of the Interim Constitution
Court membership
Judges sitting	Chaskalson P, Mahomed DP, Ackermann, Didcott, Kriegler, Langa, Madala, Mokgoro, O'Regan & Sachs JJ
Case opinions
Decision by	Mahomed
Keywords
adoption fathers' rights illegitimacy

Fraser v Children's Court, Pretoria North and Others is a 1997 judgment of the Constitutional Court of South Africa which held that, in certain circumstances, the consent of the father is required before a child born out of wedlock may be adopted. In a unanimous decision, the court held that the provisions of the Child Care Act, 1983, which required only the mother's consent, were unconstitutional, but suspended its order for two years so that Parliament could amend the law accordingly.

Facts

During the period for which the applicant, Fraser, and second respondent, Naude, lived together, the latter became pregnant. She decided to give the child up for adoption. The applicant did not agree with this decision and so launched series of unsuccessful applications to prevent the child being given up for adoption, and to be given custody of his child. He was denied this opportunity, as section 18(4)(d) of the Child Care Act only required the consent of the mother to give up children born out of wedlock for adoption.

Judgment

The court declared this to be unconstitutional, as it discriminated against fathers of children born out of wedlock on the basis of their gender. The Constitutional Court ordered Parliament to bring this provision of the Child Care Act in line with the Constitution within two years.

External links

• Text of the judgment at SAFLII