The rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa

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dc.contributor.advisorBaase, Mathabo
dc.contributor.authorFriedmann, Indio Anais
dc.date.accessioned2025-02-10T12:05:15Z
dc.date.available2025-02-10T12:05:15Z
dc.date.issued2024
dc.date.updated2025-02-10T11:43:50Z
dc.description.abstractThe global shift in recognising children as independent rights holders demands that States Parties must adhere to the best interests of the child principle, obliging them to adopt legislative measures that align with children's rights as outlined in international law. Accordingly, South Africa's legislative frameworks, including the Children's Act 38 of 2005, emphasise a child centered approach, requiring all child-related decisions to be grounded in the best interests of the child. However, there is a notable absence in international and domestic guidance regarding the rights and best interests of children conceived through rape. It is within this context that this dissertation argues that South Africa's current legislation fails to adequately provide for children born of rape. Such a failure violates international and constitutional obligations owed to children. This dissertation examines this current legislative lacuna in South Africa concerning such children, specifically focusing on the Children's Act and Maintenance Act 99 of 1998. The Children's Act, in section 1(a), excludes rapist fathers from the definition of a parent, thereby denying them parental responsibilities and rights, including the responsibility to contribute to the child's maintenance. While seemingly aimed at protecting the child's best interests, this legal stance creates a lacuna, leaving children born of rape without maintenance from the rapist father. Maintenance is a crucial factor determining a child's well-being and opportunities, encompassing rights such as adequate living standards, education, healthcare, housing, and dignity. The existing legislation only entitles children born of rape to maintenance from the biological mother, unlike children born of consent who can receive dual maintenance. Moreover, this differential treatment based on the manner of conception raises concerns of unfair discrimination. Due to these consequences, amendments to the Children's Act and Maintenance Act are necessary to ensure maintenance obligations from rapist fathers, irrespective of the child's birth status. By analysing international and domestic perspectives, this research highlights the child's right to receive maintenance as part of their best interests, challenging the current exclusionary provision in its current form.
dc.identifier.apacitationFriedmann, I. A. (2024). <i>The rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa</i>. (). University of Cape Town ,Faculty of Law ,Department of Public Law. Retrieved from http://hdl.handle.net/11427/40898en_ZA
dc.identifier.chicagocitationFriedmann, Indio Anais. <i>"The rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa."</i> ., University of Cape Town ,Faculty of Law ,Department of Public Law, 2024. http://hdl.handle.net/11427/40898en_ZA
dc.identifier.citationFriedmann, I.A. 2024. The rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa. . University of Cape Town ,Faculty of Law ,Department of Public Law. http://hdl.handle.net/11427/40898en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Friedmann, Indio Anais AB - The global shift in recognising children as independent rights holders demands that States Parties must adhere to the best interests of the child principle, obliging them to adopt legislative measures that align with children's rights as outlined in international law. Accordingly, South Africa's legislative frameworks, including the Children's Act 38 of 2005, emphasise a child centered approach, requiring all child-related decisions to be grounded in the best interests of the child. However, there is a notable absence in international and domestic guidance regarding the rights and best interests of children conceived through rape. It is within this context that this dissertation argues that South Africa's current legislation fails to adequately provide for children born of rape. Such a failure violates international and constitutional obligations owed to children. This dissertation examines this current legislative lacuna in South Africa concerning such children, specifically focusing on the Children's Act and Maintenance Act 99 of 1998. The Children's Act, in section 1(a), excludes rapist fathers from the definition of a parent, thereby denying them parental responsibilities and rights, including the responsibility to contribute to the child's maintenance. While seemingly aimed at protecting the child's best interests, this legal stance creates a lacuna, leaving children born of rape without maintenance from the rapist father. Maintenance is a crucial factor determining a child's well-being and opportunities, encompassing rights such as adequate living standards, education, healthcare, housing, and dignity. The existing legislation only entitles children born of rape to maintenance from the biological mother, unlike children born of consent who can receive dual maintenance. Moreover, this differential treatment based on the manner of conception raises concerns of unfair discrimination. Due to these consequences, amendments to the Children's Act and Maintenance Act are necessary to ensure maintenance obligations from rapist fathers, irrespective of the child's birth status. By analysing international and domestic perspectives, this research highlights the child's right to receive maintenance as part of their best interests, challenging the current exclusionary provision in its current form. DA - 2024 DB - OpenUCT DP - University of Cape Town KW - public law LK - https://open.uct.ac.za PB - University of Cape Town PY - 2024 T1 - The rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa TI - The rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa UR - http://hdl.handle.net/11427/40898 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/40898
dc.identifier.vancouvercitationFriedmann IA. The rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa. []. University of Cape Town ,Faculty of Law ,Department of Public Law, 2024 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/40898en_ZA
dc.language.rfc3066eng
dc.publisher.departmentDepartment of Public Law
dc.publisher.facultyFaculty of Law
dc.publisher.institutionUniversity of Cape Town
dc.subjectpublic law
dc.titleThe rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa
dc.typeThesis / Dissertation
dc.type.qualificationlevelMasters
dc.type.qualificationlevelLLM
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