Unmarried fathers and their children : a comparative study of English, Australian and South African law

Thesis

This thesis seeks to establish whether unmarried fathers in English, Australian and South African law are treated differently from other parents in the enjoyment of parental rights and in the judicial resolution of residence and contact disputes. The first part of the work considers the different bases on which parental authority is allocated in each of the three jurisdictions. The Australian model is categorised as inclusive, by reason that it allocates parental authority automatically to all parents; and the English and South African models as exclusive, by reason that at least some categories of unmarried fathers do not automatically enjoy parental authority. We see that the nature and function of each model of parental authority differs substantially and that it is only in England where there is a close relationship between the enjoyment of parental rights and holding parental authority.

The second part of the work analyses the decision-making process by which judges resolve residence and contact disputes. Here we seek to establish whether any aspects of this process result in less favourable outcomes for unmarried fathers than for other parents and, if so, to consider whether there is any relationship between these and the allocation of parental authority. We consider the role of common law parental rights to custody and access; rights arising under human rights instruments; assumptions made by judges as to what is usually in a child's best interests (here termed 'factual assumptions'); moral judgments about lifestyles and parental roles; and other factors which impact on the exercise of judicial discretion. Our study shows that whilst aspects of the decision-making process in all three jurisdictions previously yielded less favourable outcomes for unmarried fathers, it is today only in South Africa where this remains the case: and only in South Africa where the allocation of parental authority affects the resolution of residence and contact disputes.

Authors: Sch�fer, L

• Peer review status: Peer reviewed
• DOI: 10.5287/ora-nzz2jnybv
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford