Attorney Garry Hertzberg offers advice on the Children’s Act and getting paternity tests


Garry Hertzberg, practising attorney at Dewey Hertzberg Levy and host of the Laws of Life with Garry Hertzberg on writes:

I was on the Gautrain recently during rush hour and, as usual, it was packed.

A heavily pregnant woman got on and saw no seats, even in the preferential seating area. An older woman who was also standing said to a young lout who was slouched all over one of the easy access seats, ‘Stand up for the pregnant woman’ and in a flash, his reply, to the amusement of many, was ‘Did I make her pregnant?’. She was not impressed, and in the style of grandmothers the world over, gave him a dressing down until he reluctantly gave up his seat.

The bold statement, ‘It wasn’t me’ as claimed by singer Shaggy in his song, and Michael Jackson’s protests in Billy Jean, ‘The kid is not my son’ are often used in paternity disputes. The alleged father claims that he is the victim of paternity fraud and that the mother is trying to pin a maintenance order on him, but in the same breath refuses to take a paternity test.

So often, single mothers trying to claim some sort of maintenance for their children, ask how they can force a man to undergo a paternity test, and the answer is they cannot. The courts do not have the power to force an adult to undergo a paternity test, and there is no other law or procedure to follow to compel an alleged father to do it.

Usually in law, the person who accuses must prove the accusation, but fortunately, in this situation, the Children’s Act changes things. This is one of the few instances where the law creates a presumption that isn’t supported by evidence. The Children’s Act specifically says that a refusal to undergo a scientific test creates a presumption that that person is the parent of the child.

This presumption goes both ways – if a father is trying to prove he is the father, a refusal by the mother to allow testing on the child will create the presumption that he is the father.

The youth on the train may not be responsible, but his bold denial is not enough to prove it.

Read: ‘Give the abused a voice and the abuser a conviction’

Edited by Allan Robertson

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