''Fraser v Children's Court, Pretoria North and Others'' is a 1997 judgment of the

Constitutional Court of South Africa The Constitutional Court of South Africa is a supreme court, supreme constitutional court established by the Constitution of South Africa, and is the apex court in the South African judicial system, with general jurisdiction. The Court was fi ...

which held that, in certain circumstances, the consent of the father is required before a child born

out of wedlock Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as ''b ...

may be

adopted Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person's biological or legal parent or parents. Legal adoptions permanently transfer all rights and responsibilities, along with filiation, from ...

. In a unanimous decision, the court held that the provisions of the

Child Care Act, 1983 A child ( : children) is a human being between the stages of birth and puberty, or between the developmental period of infancy and puberty. The legal definition of ''child'' generally refers to a minor, otherwise known as a person younge ...

, which required only the mother's consent, were unconstitutional, but suspended its order for two years so that

Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...

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.

References

External links

Text of the judgment at SAFLII
Constitutional Court of South Africa cases South African family case law 1997 in South African case law Gender equality case law {{SouthAfrica-case-law-stub