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Does the Differential Criterion for Vesting Parental Rights and Responsibilities of Unmarried Parents Violate International Law? A Legislative and Social Study of Three African Countries
Published online by Cambridge University Press: 14 September 2011
Abstract
The right to non-discrimination for all children is established in international human rights law. International children's rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children's rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children.
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- Copyright © School of Oriental and African Studies 2011
References
1 Kenya passed the Children's Act in 2001, while South Africa passed its Children's Act in 2005. The Namibian Parliament passed a comprehensive Child Care and Protection Act in May 2011, but it has not yet come into force.
2 CRC, art 2(1).
3 Id, art 2(2).
4 UN Committee on the Rights of the Child “General comment no 7” (2005 CRC/C/GC/7/Rev.1) at para 12.
5 Such as CRC arts 3, 5, 18 and 27.
6 Id, art 18(1).
7 UNICEF Implementation Handbook for the Convention on the Rights of the Child (3rd ed, 2007, UNICEFGoogle Scholar at 235.
8 ACRWC, art 3.
9 Id, art 19.
10 Id, art 20(1).
11 Id, art 18(3).
12 CEDAW, art 16(d).
13 Bonthuys, E and Domingo, W “Constitutional and international law context” in Albertyn, C and Bonthuys, E (eds) Gender Law and Justice (2007, Juta)Google Scholar 51 at 61 (emphasis original).
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15 See AWP, arts 6 and 7. In art 6(i), in respect of marriage, the AWP requires equal rights of the man and woman to contribute jointly to the interests of the family, and the protection and education of their children. In the event the marital relationship ends, art 7(c) requires reciprocal responsibilities of both men and women towards their children.
16 Chaps 144, 141 and 143 of the Laws of Kenya respectively (all now repealed).
17 Guardianship of Infants Act, preamble.
18 Children and Young Persons Act, preamble.
19 Act 8 of 2000.
20 Id, preamble.
21 Id, sec 5.
22 Id, sec 23(1).
23 Id, sec 24(1)–(2).
24 Id, sec 24(3).
25 Id, sec 25.
26 Id, sec 23(2).
27 Wabwile, MN “Rights brought home? Human rights in Kenya's Children Act, 2001” International Survey of Family Law (2005, ISFL)Google Scholar 393 at 399–400.
28 Children Act, sec 23(4)a.
29 Wabwile “Rights brought home?”, above at note 27 at 410.
30 RM and Another v Attorney General (2008) KLR (gender and family) 574. The applicant was the mother of a child born out of wedlock, although the mother and father were living together at the time of the birth. The father of the child had paid the hospital expenses for the birth and performed other customary rituals on the baby. However he disappeared when the child was approximately four months old. The mother challenged section 24(3) of the act arguing that it was discriminatory and violated the CRC, the ACRWC and the 1963 Kenyan Constitution because it disadvantaged her child compared to children with married parents.
31 Id at 589.
32 MN Wabwile “Rights brought home?”, above at note 27 at 399.
33 MW v KC 2005 eKLR, available at: <http://www.kenyalaw.org/CaseSearch/case_search_one.php?pageNum_result=38&totalRows_result=455&casParties=&casSubject=rights&casNumber=&casCourt=&casJudges=&casType=&casAdvocates=&casCitation=&casYear=&check_submit=1&submitter=Searching> (last accessed 20 June 2011).
34 Children Act, sec 102(1).
35 Ibid.
36 Id, sec 102(5).
37 Id, sec 102(1).
38 Id, sec 81(a).
39 Id, sec 82(2).
40 Id, sec 81(b).
41 Id, sec 81(d).
42 Id, sec 81(3).
43 MN Wabwile “Child support rights, discrimination, illegitimate father; testing the constitutionality of the Kenya Children's Act” (unpublished paper on file with the authors, 2007) at 6.
44 In response to a request to amend section 24 of the act, it was argued that it was ironic that, in some jurisdictions, the struggle is being waged by fathers who consider the law discriminatory and fight for an easier route to acquire parental responsibility (usually against reluctant mothers). In Kenya, it is mothers fighting reluctant fathers: “Drafter's report on proposals for the amendment of the Children Act (CAP 586 Laws of Kenya)” (on file with the authors) at 9.
45 The High Court subsequently criticized the finding on non-discrimination. See the dictum of Lady Justice Martha Koome in JGM v CNW (2008) eKLR 6.
46 Skelton, A “The development of a fledging child rights jurisprudence in Eastern and Southern Africa based in international and regional instruments” (2009) 2/9African Human Rights Law JournalGoogle Scholar 482 at 489.
47 UNICEF Implementation Handbook, above at note 7 at 235.
48 On 4 August 2010 Kenya voted to adopt a new constitution.
49 Children Act, sec 25(2).
50 Under art 2(4) of the new constitution, any law which is inconsistent with the constitution is void to the extent of such inconsistency. If the legislature does not undertake law reform, the provisions of the act will therefore be challengeable in the Constitutional Court.
51 Boberg, PQRThe Law of Persons and the Family (1977, Juta)Google Scholar at 458.
52 Cronje, DSP and Heaton, JSouth African Family Law (2nd ed, 2004, Butterworths)Google Scholar at 265.
53 Bonthuys, E “Parental rights and responsibilities in the Children's Bill 70D of 2003” (2006) 3 Stellenbosch Law ReviewGoogle Scholar 482 at 483.
54 Heaton, J “Parental responsibilities and rights” in Davel, CJ and Skelton, A (eds) Commentary on the Children's Act (2007, Juta) 3–1Google Scholar at 3–3.
55 1997 (2) SA 261 (CC).
56 In this case the applicant applied to have sec 18(4)(d) of the then Child Care Act, which allowed for only the mother's consent, to be declared unconstitutional. The Constitutional Court found this section to discriminate on the basis of marital status.
57 Act 86 of 1997.
58 Secs 2(1) and (2).
59 South Africa ratified the CRC in 1995, the ACRWC in 2000, CEDAW in 1997 and the AWP in 2005.
60 SALRC Review of the Child Care Act Report (2002, Project 110)Google Scholar at 64–67.
61 Id at 65.
62 Act 38 of 2005.
63 D Smart “Written submission on the Children's Bill” (on file with the authors, 2004) at 1.
64 A few sections of the act (most of the first three chaps and a few other provisions) were put into operation on this date. The remainder of the act came into force on 1 April 2010. The reasons for the dual dates are complex and lie beyond the scope of this article.
65 It has been confirmed that this provision has retrospective effect, thereby impacting many fathers who acquired rights instantly upon promulgation of the act.
66 Skelton, A “Parental responsibilities and rights” in Boezaart, T (ed) Child Law in South Africa (2009, Juta)Google Scholar 62 at 76.
67 Sec 18(3) stipulates that a guardian of a child must: “(a) administer and safeguard the child's property and property interest; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including – (i) consent to the child's marriage; (ii) consent to the child's adoption; (iii) consent to the child's departure or removal from the Republic; (iv) consent to the child's application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child.”
68 J Heaton “Parental responsibilities and rights”, above at note 54 at 3–12.
69 2004 (2) SA 56 (C).
70 1930 AD 61.
71 Id, para 19.
72 Established in terms of the Mediation in Certain Divorce Matters Act 24 of 1987.
73 Children's Act, sec 21(3)(b).
74 Case CCT 18/02, Constitutional Court 2002 at para 29.
75 Hubbard, D and Cassidy, E “Family law reform in Namibia: Work in progress” in Bainham, A (ed) The International Survey of Family Law (2002, Jordan Publishing)Google Scholar 255 at 255.
76 Ambunda, L and Mugadza, W “The protection of children's rights in Namibia: Law and policy” in Ruppel, O (ed) Children's Rights in Namibia (2009, Macmillan Education)Google Scholar 5 at 16.
77 This had been achieved three years earlier in South Africa via the Guardianship Act 1993 (now repealed).
78 At a workshop for all Namibian magistrates held in September 2009 in Swakopmund.
79 Namibia ratified the CRC in 1990 and the ACRWC in 2004.
80 The South African Children's Act 33 of 1960 is still the governing statute for welfare proceedings, adoption, residential care and foster care.
81 2007 (2) NR 520 (HC).
82 The case was decided after the passage of the Children's Status Act, but before it came into force. The common law rule was found unconstitutional with effect from 21 March 1990 (the date of the Namibian Constitution).
83 The bill initially proposed that the unmarried mother would have sole custody from birth, and that mothers and fathers would automatically acquire joint custody when the child reached seven years of age: Hubbard, D “Gender and sexuality: The law reform landscape” in LaFont, S and Hubbard, D (eds) Unravelling Taboos: Gender and Sexuality in Namibia (2007, Legal Assistance Centre)Google Scholar 99 at 116.
84 Workshop for Namibian magistrates, September 2009, Swakopmund.
85 “Custody” relates to those aspects of parental authority which concern the day to day life of the child. Guardianship, in its narrow form, refers to the capacity to administer the child's estate and to represent the child in legal proceedings.
86 Sec 13(7) of the act provides, however, that the written consent of both parents is required for the adoption of the child, subject to the provisions permitting dispensing with consent, and for the removal of the child from Namibia for a period of more than one year, unless a children's court orders otherwise. F !Owoses-/Goagoses, “Custody and guardianship of children” in Ruppel, O (ed) Children's Rights in Namibia (2009, Macmillan Education)Google Scholar 177 at 181 opines that this provision implies that both secs 13(3) and 13(7) seem to apply to children born within and outside marriage, and that sec 13(7) means that an order of “sole guardianship” does not divest the other parent wholly from parental authority: a residual power to consent to adoption or removal from Namibia is retained. This view seems correct.
87 Version dated 9 June 2010.
88 Proposals from civil society that would have provided for an option of joint custody were explicitly rejected in the debates surrounding the act (personal communication from Legal Assistance Centre, Windhoek).
89 Child Care and Protection Bill, sec 1.
90 Sec 97(9) provides that a person not having custody who has voluntarily acknowledged parentage of a child born outside marriage may apply to the children's court for an order granting a right of reasonable access to that child, with the parent or any other persons having custody being made a party to such proceedings.
91 A substantive discussion of the parliamentary debates is provided by Hubbard “Gender and sexuality”, above at note 83 at 118–19: “This final approach … seems to bend over backwards to pretend that children have two identical parents, instead of a mother and a father. It is ‘gender neutral’ to a fault, despite the fact that child birth and child rearing are not gender-blind activities in Namibia.” She asserts that debates around parental rights “bring to light male fears that equality for women will unfairly disadvantage men”, which explains the “gender neutrality” in the face of social inequality and hardship experienced by single mothers.
92 !Owoses-/Goagoses “Custody and guardianship of children”, above at note 86 at 182.
93 The ex parte application procedure for interim custody has been completely removed in the draft bill.