There is hope in such cases. Although the Department of Home Affairs does not always inform fathers of their rights, the father may have his paternity recognised officially. Under section 26(1) of the Children’s Act, a person who claims to be the father can apply to a court for an order confirming his paternity of the child, if the mother refuses to consent; is incompetent to give consent due to mental illness; cannot be located; or is deceased.113 Armed with an order of paternity, the father is entitled to register the birth of his child 'unaccompanied' by or without the consent of the child’s mother.114 You should consider trying to assist a client to obtain a court order to this effect – instructing Home Affairs to register the child under the father's surname – pursuant to section 46(1)(h)(viii) of the Children's Act which allows Children's Courts to ‘instruct an organ of state to assist a child in obtaining access to a public service to which the child is entitled’. The only fathers for whom this option is not available are the biological fathers of a child conceived through the rape of or incest with the child’s mother; or a father who is biologically related to a child only by reason of being a gamete donor for purposes of artificial fertilisation.115 LHR also recommends meeting in person with the supervisor for birth registration at local offices and office managers to resolve this issue before resorting to litigation. However at some point litigation may be necessary in order to enforce a client's right. In that case it would be helpful for a court to review these sections of the Births and Deaths Registration Act in terms of their constitutionality. At present, these laws and policies are discriminatory towards children born out of wedlock and children with an undocumented mother. Finding a solution for clients: immigration status and citizenship Further, the department has an unofficial policy, in cases of South African citizens, of requiring a mother to be registered before the child will be registered. Again, LHR has seen this policy enforced even when the father is also a South African citizen who has a valid ID document and is standing at Home Affairs trying to register his child. Birth outside of a hospital or registered clinic Children born outside of a hospital or registered clinic also may encounter difficulties in obtaining birth registration due to failure to 113 See sections 26(1)(i)-(iv). 114 This is also possible if the father wishes to be added to the birth register after the child has been registered and the mother does not consent. See section 11(5) of the Act and its accompanying regulation. 115 See section 26(2) of the Children’s Act. Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide 79