Convention on the Rights of the Child (CRC)

The CRC is the global minimum standard for the protection of the rights of children. It sets out in explicit terms the duty of states parties to ensure the CRC rights to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.Footnote ² States parties must further ensure that the child is protected against all forms of discrimination on the basis of the status, activities, expressed opinions or beliefs of the child's parents, legal guardians or family members.Footnote ³ A state's responsibility in this regard extends to monitoring and combating discrimination against children on the basis of the marital status of their parents.Footnote ⁴

The CRC refers to parental duties and responsibilities in various articles.Footnote ⁵ It requires states parties to ensure that the principle of parents' common primary responsibility for the development and upbringing of children is incorporated in their respective jurisdictions, paying due regard to the best interests of the child.Footnote ⁶ This approach does not distinguish the responsibility of parents on the basis of their marital status and, by extension, does not distinguish children born out of or in wedlock. The CRC regards parents' common responsibility for the upbringing of the child as a right of the child. It underscores that responsibility goes beyond financial support: both parents are to play an active role in the upbringing of children. Therefore, states parties that do not enable unmarried fathers to assume parental responsibility are likely to breach the CRC.Footnote ⁷

African Charter on the Rights and Welfare of the Child (ACRWC)

The ACRWC prohibits discrimination of children on the basis of their “parents' or legal guardians' race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status”.Footnote ⁸ It also provides for the right of every child to be cared for by his parents and, as far as possible, to reside with them.Footnote ⁹ It vests primary responsibility for the upbringing and development of the child in the parents or other persons responsible for the child.Footnote ¹⁰ The general duties emanating from parental responsibility include the duty to ensure that the best interests of the child are the basic concern at all times, and to secure living conditions necessary to the child's wellbeing. Fulfilment of this duty requires financial input. The ACRWC prohibits deprivation of maintenance on the basis of the marital status of a child's parents.Footnote ¹¹

Convention on the Elimination of all forms of Discrimination against Women (CEDAW)

CEDAW prohibits all forms of discrimination against women. States parties are obliged to ensure, on the basis of equality, that men and women have the same rights and responsibilities over their children, irrespective of their marital status. It stipulates that the best interests of the child are to be paramount.Footnote ¹² In light of article 1 of CEDAW it is hoped that, by giving equal rights and responsibilities to men and women, substantive equality will be attained. It has therefore been argued that, although the definition of discrimination under article 1 of CEDAW does not give an “explicit definition or theoretical basis of equality”, its “emphasis on the impact of discrimination can be read as favouring substantive equality”.Footnote ¹³

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (AWP)

The AWP was adopted following the realization that, despite the ratification of CEDAW by many African states, women in Africa continued to experience discrimination. It was proposed to mobilize political will.Footnote ¹⁴ The AWP addresses the obligation of states parties to ensure the equality of obligations of parents for the upbringing of their children, but only in the context of marriage and separation.Footnote ¹⁵ It does not contain any provisions relating to parents of children born out of wedlock.

Historical background

Before 2001, the law relating to children in Kenya was found in several statutes, but primarily in the Guardianship of Infants Act, the Children and Young Persons Act, and the Adoption Act.Footnote ¹⁶ The Guardianship of Infants Act addressed matters of guardianship and the custody of unmarried persons below the age of 18 years.Footnote ¹⁷ The Children and Young Persons Act primarily made provisions for the protection and discipline of children, juveniles and young persons.Footnote ¹⁸ English common law was, and continues to be, a source of law in Kenya. Kenya ratified the CRC and the ACRWC in 1990 and 2000 respectively. The adoption of the Children's Act 2001 was therefore partly driven by the need to update the law to reflect the obligations under these and other international conventions.

The Children Act 2001Footnote ¹⁹

This act is the principal statute to give effect to the CRC and ACRWC in Kenya.Footnote ²⁰ It provides for, inter alia, parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children. Since its adoption, some of the issues have elicited public debate and litigation. The provisions on children born out of wedlock constitute one such issue. The act is founded upon a sound principle of non-discrimination in the rights of children.Footnote ²¹ It does not seem to distinguish between children on the basis of the marital status of their parents, save insofar as the subject of parental responsibility is concerned. The act does create a different criterion for the acquisition of parental responsibility for the father of a child born out of wedlock from that of a child born in wedlock. These provisions on parental responsibility for children born out of wedlock have been criticized as falling short of international standards and thus as discriminatory against such children. This assertion is explored further below.

Incidence of parental responsibility under the Children Act

The definition of parental responsibility, the duties arising from it and its legal incidence are addressed in part III of the act. Section 23 provides that parental responsibility refers to “all duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child's property in a manner consistent with the evolving capacities of the child”.Footnote ²² Where both parents were either married at the time of the birth of the child or have subsequently married, they acquire automatic and equal parental responsibility over the child.Footnote ²³ However, where parents were not married at the time of the child's birth and have not subsequently done so, parental responsibility for the child vests in the mother in the first instance.Footnote ²⁴ The father may only acquire responsibility if he fulfils one of the following five conditions:

1. (a) he applies to court for an order vesting parental responsibility in him;

2. (b) he enters an agreement with the mother of the child giving him parental responsibility;

3. (c) he cohabits with the mother for a period or periods of at least 12 months;

4. (d) he has acknowledged paternity; or

5. (e) he has maintained the child.Footnote ²⁵

The act thus draws a clear distinction between the incidences of parental responsibility for fathers of children born in and out of wedlock. Not so for the mother: her parental responsibility accrues automatically by virtue of giving birth to the child. In terms of the act, parental responsibility is a function of parental status. Further, the duty to support the upbringing of the child is dependent upon the acquisition of parental responsibility. The ramifications of this are discussed below.

Parental responsibility of unmarried fathers

The approach of the Children Act to the parental responsibility of unmarried fathers raises issues that are relevant to the rights of the child. First, unlike the mother, the father of such a child does not automatically acquire responsibility. Secondly, the ways in which the father of the child may acquire responsibility all demand a positive step from him and are therefore subject to his discretion. In addition, the provision ostensibly does not leave room for interested third parties, the mother of the child, or the child to enforce parental responsibility against such a father. In this way, the act entrenches the discretion of the father as to whether or not to assume responsibility. The effects of these provisions on the rights of the child are relevant to the determination of whether the law in effect discriminates against a child born out of wedlock. This article will now examine this issue in relation to the duty of support, guardianship, custody, and care and control.

Analysis of gender equality

In terms of the Children Act, the mother of a child born out of wedlock does not have the capacity to enforce the father's responsibility for the child. The possibility of entering into a parental responsibility agreement with the father exists, but this is dependent upon the willingness of the father, and he can decline to co-operate. Ultimately, the mother's power to enforce the father's responsibility must draw from either section 23 (read with section 25) or section 90 (read with section 91).

As detailed above, it is not possible to pressure the father into taking up responsibility under section 25. Section 90(e) on the other hand presumes that an unmarried father is not responsible for the maintenance of the child. Section 91 talks of the court's power to “determine any matter relating to the maintenance of the child” and to make maintenance orders. However it appears that this provision is intended to address “matters relating to maintenance” in respect of those who already have such responsibility. The sequence of the sections further suggests that the presumption in section 90, including section 90(e), informs the subsequent provisions.

Besides, to expect the court to determine the existence of a duty to maintain the child under section 91 would be tantamount to requiring the court to determine the incidence of parental responsibility. This is certainly beyond the ambit of section 90. In effect then, the mother of a child born out of wedlock is powerless against the father to enforce parental responsibility. In a similar vein, she cannot stop the father from acquiring parental responsibility when he so wishes. While she may decline to enter a parental rights agreement, decline maintenance for the child or oppose an application for responsibility lodged by the father, she is helpless against him if he acknowledges paternity of the child. She, by contrast, has no choice as to whether to take up responsibility because it attaches by virtue of her delivery of the child. The gendered inequality of her position is therefore obvious.

Regarding the father, acquisition of parental responsibility is a function of actions which he can “conveniently avoid or actively evade”.Footnote ⁴³ Any acknowledgement of paternity or indication of intention to be involved in the development of the child confers the father with automatic parental status. In Kenya, payment of child support as part of parental responsibility thus remains a possible disincentive for a father to take up responsibility.

Point of contention

If the duty of support was not tied to the incidence of parental responsibility, then the demand for unmarried fathers to assume responsibility might dissipate. The main driver behind the call for the establishment of a duty of support independent of parental responsibility is the need to ensure that unmarried fathers contribute to the maintenance of their children without the choice of exempting themselves. It has been argued that the push for fathers to assume responsibility is ironic, since in other jurisdictions, especially in developed countries and in some developing ones such as South Africa, the debate is rather driven by fathers of children born out of wedlock seeking to acquire responsibility over the child.Footnote ⁴⁴ Whereas this argument is fundamentally true, the two situations should not be compared as though they were similar. These jurisdictions treat the duty to support the child differently: the distinguishing factor is that the father's duty to maintain the child exists independently from the assignment or acquisition of parental status.

An issue of discrimination?

In RM and Another v Attorney General, the High Court of Kenya had the opportunity to determine whether section 23(3) of the Children Act discriminated against children born out of wedlock. The applicant argued that, by vesting all parental responsibility upon the mother, the section discriminated against both the mother and the child; the father could choose to assume responsibility for the child or not, but that choice was not available to the mother. The court found that the differentiation made under the section did not amount to discrimination under Kenya's then constitution.Footnote ⁴⁵ The High Court side-stepped the issue, relying on international instruments in support.Footnote ⁴⁶

The court regarded the differentiation in the act to be within the state's “margin of appreciation” in the domestication of international legal instruments. Unfortunately, this can be interpreted as a tacit recognition that the act falls short of international standards. Because the duty to maintain the child is pegged to the presence of parental responsibility, the act compromises the capacity of children born out of wedlock to access child support from their fathers on an equal basis with children born within marriage. In effect, such children are substantively discriminated against in access to parental care. Hence, it is suggested that the differential treatment of legitimate and illegitimate children does not meet international children's rights standards. The “margin of appreciation” accorded the state cannot be so widely construed as to defeat a principle as fundamental as that of non-discrimination. In light of the socio-economic inequalities between men and women in Kenya, the failure to entrench a duty of the father to contribute financially to the upbringing of the child born out of wedlock compromises the substantive equality of children. The act must therefore be deemed discriminatory. The state is under a duty to eliminate conditions that cause or help to sustain such discrimination.Footnote ⁴⁷

The impact of Kenya's new Constitution

Kenya's 2010 constitutionFootnote ⁴⁸ heralds a new dispensation for the human rights of children. Under article 53(1)(e), every child has a right to parental care and protection, which includes equal responsibility of the mother and the father to provide for the child whether they are married to each other or not. In literal terms, the provision does not affect the incidence of parental responsibility. Rather, it implies an intention to sever the duty to maintain the child from the package of parental responsibility. However, until the Children Act is amended appropriately, the enforcement of the constitutional provision could vest automatic parental responsibility in the unmarried father. This is because, under the Children Act, maintenance of the child is one of the ways in which an unmarried father can acquire parental responsibility over the child.Footnote ⁴⁹ Article 53(1)(e) of the new constitution can by default then mean that every father now has automatic parental responsibility over his children. Whereas this would put Kenyan law on a similar footing with the laws of many other countries in so far as maintenance is concerned, it may have the absurd effect of giving absentee parents (especially unmarried fathers) rights over children that have the potential to impact negatively on their wellbeing.

The new constitution is likely to trigger enormous legislative reform to align existing statutes with the new regime.Footnote ⁵⁰ Entrenching the duty to provide for the child, notwithstanding the parents' marital status, is by far one of the greatest gains for child rights advocates in Kenya; it must be followed as soon as possible by a review of the provisions of the Children Act to avoid absurd results.

Historical background

In South African Roman-Dutch common law, parental rights and responsibilities were known as parental “authority and power”.Footnote ⁵¹ Parental authority was formally defined as: “the rights, powers, duties and responsibilities parents have in respect of their minor children and those children's property”.Footnote ⁵² This parental authority and power consisted of guardianship, custody and access. Guardianship traditionally vested in fathers where children were born to married parents. Custody entailed that “custodian parents [had] the rights to direct the daily living arrangements of a child, including secular, religious and cultural education, to determine the child's associates and to administer appropriate discipline”.Footnote ⁵³ Parental authority and power “was automatically conferred on both parents of a “legitimate' child … and on the mother of an ‘illegitimate’ or extra-marital child”.Footnote ⁵⁴

The Guardianship Act 192 of 1993 (now repealed) gave both parents of a child born in wedlock shared guardianship over their child; it also vested guardianship upon the unmarried mother (only) of a child born out of wedlock.

The position was thus discriminatory towards unmarried fathers, who had no automatic rights regarding their biological children, although they were permitted at common law (reaffirmed in a string of decisions) to approach the High Court for the allocation of guardianship, custody or access. The unequal treatment of unmarried fathers led to a movement in South Africa to re-examine their rights and responsibilities, in the light of the new constitutional dispensation (since 1994) which promoted equality, proscribed unfair discrimination on a range of listed grounds, and enshrined the child's right to parental care. The first major, post-constitution challenge by an unmarried father was in Fraser v The Children's Court, Pretoria North and Others Footnote ⁵⁵ where the applicant (an unmarried father) insisted on exercising some form of parental rights and responsibilities in the context of the adoption, without his consent, of his child who had been born out of wedlock.Footnote ⁵⁶ Parliament was ordered to adopt legislation that would grant unmarried fathers more rights. Parliament thereupon enacted the (inelegantly named) Natural Fathers of Children Born out of Wedlock Act (NFCBWA),Footnote ⁵⁷ which permitted unmarried fathers to bring an application to the High Court in order to have parental authority and power conferred upon them.Footnote ⁵⁸ Section 2(5) of this act stipulated certain factors a court would have to take into account when considering any such application.

The NFCBWA thus attempted to rectify (to a limited extent) the lack of acknowledgement of the role of unmarried fathers in the lives of their children. It did this by providing expensive and time consuming remedies to such fathers, financially out of the reach of many. Arguably, the law as it stood did very little to comply with international instruments ratified by South Africa at that time.Footnote ⁵⁹

Development of the South African Children's Act

South Africa undertook a lengthy process of developing comprehensive new legislation on child protection. The South African Law Reform Commission (SALRC), spearheading the investigation, also dealt with the issue of parental responsibilities and rights, including those aspects relating to the responsibilities and rights of unmarried fathers.

The SALRC acknowledged that unmarried fathers should “be able to obtain parental responsibility or certain components thereof by making application to court and satisfying such court that this will be in the best interest of the child”.Footnote ⁶⁰ Going further than the NFCBWA, however, the SALRC recommended that unmarried fathers who fall into one of the following categories should automatically be vested with parental responsibilities, without the need for an application to court:

In their search for a suitable model, they borrowed from the Kenyan Children Act, which had stipulated five ways in which an unmarried father could acquire parental rights and responsibilities, as discussed above, including the 12 month cohabitation criterion.

When the South African Children's ActFootnote ⁶² was tabled in Parliament, a significant debate ensued around the formulation of the section on the parental responsibilities and rights of unmarried fathers. Arguments were raised by family law practitioners and the feminist lobby. The former raised the practical difficulties in applying the Kenyan provision of calculating when the father cohabits with the mother for “a period or periods of at least 12 months”. Feminists argued that the proposal would give men the power to decide what periods constitute 12 months. Organizations argued that the time provisions would give rise to a “potential minefield of factual disputes”.Footnote ⁶³ However pressure groups like “Fathers 4 Justice” threatened further constitutional attack if the provisions of the NFCBWA were not improved: awarding parental responsibilities and rights to unmarried fathers had to occur more automatically, and could not rest on court applications alone. Parliament too was mindful of the constitutional risks of not addressing the position of unmarried fathers. The text of section 21 of the Children's Act was finally agreed.

Acquiring parental responsibilities and rights by unmarried fathers

Section 21 of the Children's Act, which came into effect on 1 September 2007,Footnote ⁶⁴ stipulates that:

As can be read, the final product has not provided that specific time periods of cohabitation or care are taken into account when vesting an unmarried father with parental responsibilities. The changes brought about do not fully address some concerns, as the final provision stipulates that, if an unmarried father either lived with the mother of his child in a permanent life-partnership at the birth of the child or has contributed for a reasonable time, he acquires full parental responsibilities and rights over the child automatically.Footnote ⁶⁵ First, it should be noted that “a permanent life-partnership” may be defined by somewhat subjective criteria, which can lead to dispute. Secondly, there may be varying interpretations of contributions “for a reasonable period”; thirdly, an interpretation problem might also arise: by placing the word “and” between requirements (ii) and (iii) of section 21(1)(b), it is arguable that the legislature signifies that all three section 21(b) requirements must be met before a father can acquire parental responsibilities and rights automatically by fulfilling these criteria.Footnote ⁶⁶ The interpretation of these provisions has not yet been contested in court.

Terminology

The common law used terminology that was not focused on the best of interests of children, but on the interests of parents. Furthermore, common law and statute alike classified children depending on whether their parents were married or unmarried. This, in effect, led to the discriminatory position of children born out of wedlock. The Children's Act does not distinguish children by reference to the marital status of their parents at all, adopting language that is “child neutral”, and differentiating only between married mothers and unmarried mothers, and married fathers and biological fathers.

Duty of support

Maintenance is regulated by the Maintenance Act 99 of 1998 and not the Children's Act. Nevertheless, multiple features of maintenance are filtered into parental responsibilities and rights in the latter act.

Section 21(2) of the Children's Act stipulates that an unmarried father's acquisition of parental responsibilities and rights does not affect the duty of that father to provide maintenance. Yet, at the same time, section 21(1)(b)(iii) requires that a father must have contributed or attempted to contribute to the maintenance of the child in order to acquire automatic parental rights and responsibilities. Even though acquiring parental rights and responsibilities is not dependent on the payment of maintenance alone, it is clear from the act that it is a factor to be considered. Therefore maintenance and parental responsibilities and rights are complementary in nature.

The foreseeable contention in section 21(1)(b)(iii) relates to the interpretation of “contributed”, “attempted to contribute” and “reasonable period”. The act does not define these or suggest the levels of “contribution” or required efforts at “attempting to contribute for a reasonable period”; these may be subjective, depending on which parent might stand to benefit. Heaton is of the view that, if an unmarried father has partly complied with a maintenance order, he could qualify for full parental rights and responsibilities.Footnote ⁶⁸

A duty of support would also rest on the paternal grandparents where an unmarried father cannot maintain a child. In Petersen v The Maintenance Officer, Simonstown Maintenance Court and Others,Footnote ⁶⁹ the applicant averred that the paternal grandparents of a child are legally liable to pay maintenance, where the unmarried father is not in a position to pay. Previously, Motan and Another v Joosub Footnote ⁷⁰ had found that no duty of support existed between paternal grandparents and their illegitimate grandchildren. This was argued to be discriminatory against illegitimate children and therefore unconstitutional. The High Court agreed, finding that the “common law rule which differentiates between children born in wedlock and extra-marital children, not only denies extra-marital children an equal right to be maintained by their paternal grandparents, but conveys the notion that they do not have the same inherent worth and dignity as children who are born in wedlock”.Footnote ⁷¹ One question stemming from this case is whether a father can claim parental responsibilities and rights where he does not maintain the child, but the support is provided by his parents. From a plain reading of section 21, the answer would be no, as the section requires the father to contribute or attempt to contribute.

Avoiding controversy

A new provision of the Children's Act (section 22) provides for a mother who has parental responsibilities and rights to enter into an agreement with a biological father who has not otherwise acquired such rights, in order to confer these upon the father. That agreement is then registered in order to take effect. The agreement must be confirmed by the office of the family advocate,Footnote ⁷² a specialized governmental section which advises divorce courts (and now fulfils functions vis-à-vis unmarried parents) on the child's best interests in private law litigation. Section 29 of the act stipulates that a family advocate can only register a parental responsibilities and rights agreement if it is in the child's best interests.

One explanation as to why there has not yet been litigation around section 21(1)(b) (which establishes the criteria for the automatic acquisition of rights for unmarried fathers) lies in the compulsory mediation provision of section 21(3). In the case of a dispute as to whether the conditions in section 21(a) or (b) have been fulfilled, mediation between unmarried parents is required. A family advocate, social worker or other suitably qualified person would assist unmarried parents in coming to an amicable solution in the child's best interests.Footnote ⁷³

The new dispensation provides a more gender equal position than previously prevailed. Not only can a High Court application be avoided, but some unmarried fathers now gain automatic recognition as bearers of parental responsibilities and rights. Further, they can be assigned parental rights by agreement with the mother of the child. They can also, as in the past, apply to court, but this is also to an extent simplified: section 23(1) of the Children's Act stipulates that “any person having an interest in the care, well-being or development of a child may apply to … the children's court for an order granting to the applicant … (a) contact with the child; or (b) care of the child”. Hence, save where guardianship is involved, the children's court at district level can be utilized, a much less expensive and more accessible option.

Analysis of equality

Section 21 of the Children's Act attempts to promote a greater level of formal equality between married and unmarried parents, provided that certain criteria are met. However, whether the legislative answer is the correct solution and whether it is fair to both mother and unmarried father is still hotly debated. It must be born in mind that the final draft of section 21 became a negotiated solution during parliamentary debates.

Because the obligation to maintain a child is not linked exclusively to an unmarried father having parental responsibilities and rights, it is likely that the duty to maintain a child will often serve as a reason for unmarried fathers also to insist on having parental responsibilities. But if unmarried fathers do not pay maintenance, mothers would rightfully still insist on child support, even though unmarried fathers do not enjoy parental responsibilities and rights. In Bannatyne v Bannatyne, Mokgoro J eloquently highlighted important social assumptions underlying the payment of maintenance and the position in which most unmarried mothers in South Africa find themselves: “[d]ivorced or separated mothers accordingly face the double disadvantage of being overburdened in terms of responsibilities and under-resourced in terms of means. Fathers, on the other hand, remain actively employed and generally become economically enriched. Maintenance payments are therefore essential to relieve this financial burden”.Footnote ⁷⁴

Historical background

Namibia achieved independence in 1990 after a long war with South Africa. 30 years later, the legal system is still characterized by a complicated mix of pre- and post- independence law, including Roman-Dutch common law inherited from South Africa, statutory law from both the pre-independence and post-independence period, customary law and an over-arching constitution based on human rights. As Hubbard and Cassidy note, the Namibian Constitution “is one of the few Constitutions in the world that uses gender neutral language throughout, and it explicitly forbids discrimination on the basis of sex. It explicitly provides for equality in all aspects of marriage and gives special emphasis to women in the provision which authorizes affirmative action”.Footnote ⁷⁵ The majority of Namibians live according to customary law,Footnote ⁷⁶ protected under section 66 of the constitution to the extent that customary law does not conflict with the constitution or any other legal statute.

In 1996 Namibia amended inherited laws which permitted discrimination in family relations. The Married Persons Equality Act 1 of 1996 introduced equal guardianship powers for married mothers and fathers, overriding the common law position that only the father was the guardian of a child born in wedlock.Footnote ⁷⁷ Section 14(2) provided that mothers and fathers could exercise their guardianship powers concurrently, save in certain statutorily defined instances where the consent of both parents is required. Thereafter, the Children's Status Act 6 of 2006, in force since 3 November 2008, brought about legislative changes to the position of unmarried parents. However, magistrates have recommended revisions to this act due to problems concerning its implementation.Footnote ⁷⁸ In May 2011, the Namibian Parliament passed the Child Care and Protection Act (2010); when enacted, this will constitute a comprehensive children's law intended to give effect to obligations incurred under the CRC and ACRWC,Footnote ⁷⁹ and to modernize Namibian statutory law.Footnote ⁸⁰ The new act will also partially address concerns raised in connection with the Children's Status Act.

Acquisition of parental responsibility

Under Namibian common law, as in South Africa, marital inequality was entrenched (until the Married Persons Equality Act of 1996), as was discrimination on the grounds of illegitimacy. Since the legislative intervention noted above, married mothers and fathers now share parental responsibilities, still termed access, custody and guardianship.

Under common law, only the mother of a child born outside marriage automatically acquired parental responsibility for that child. Unmarried fathers had no parental authority, although the father of a child did bear a duty of support.

The developments in South African case law and the NFCBWA postdate Namibian independence. Therefore, the first attempt to address the issue of illegitimate children in Namibia came about through statute. However, in Frans v Paschke and Others,Footnote ⁸¹ the Namibian High Court declared unconstitutional the common law rule barring children born outside marriage from inheriting intestate from their fathers.Footnote ⁸²

The Children's Status Act governs the acquisition of parental rights for children born outside marriage only. Its passage through Parliament was controversial and hotly debated: it took three full years to pass. The final provisions thus give some clues as to the depth of Namibian attitudes and beliefs about equality within and outside marriage.

The express objects of the act are to ensure that no child suffers discrimination or disadvantage because of the marital status of his or her parents (section 2). The act defines “marriage” broadly to include “a marriage in terms of any law of Namibia and includes a marriage recognized as such in terms of any tradition, custom or religion of Namibia”. A “parent” is defined as a woman or a man in respect of whom parentage has been acknowledged or otherwise established.

The act provides for matters relating to access, custody and guardianship for children born outside marriage and, in part 4, grants equal rights to become the custodian parent to either parent (father or mother). However, one parent has to be the “sole custodian”; both parents may agree, orally or in writing, who should fulfil this role.Footnote ⁸³ Absent such agreement, or where the best interests of the child may be compromised or prejudiced, the person having physical custody of the child may apply to the children's court at district level for an interim order of custody. It is widely viewed that the act does not create a default position, where there is no agreement between the parents and no court application for interim custody has been launched.Footnote ⁸⁴ Hence, it has been argued that the common law position (which grants only the mother parental responsibilities and rights) survives.

The Children's Status Act does not define the principal incidents of parental authority, “custody” and “guardianship”, which therefore retain their common law meaning.Footnote ⁸⁵ The act does define “sole custody” and “sole guardianship” (emphasis added) in section 1 as “the exercise of the respective rights, duties and powers [of custody and guardianship respectively] by one person to the exclusion of all other persons”.

The act provides further, in section 13(3), that the persons who may seek an order for sole guardianship (to be granted to one parent or to some other person) include either parent, the child, someone other than the mother or the father of the child who is acting as the primary caretaker of the child, or a person authorized by the minister to act on behalf of the child. The last provision, particularly, fills the void brought about by the all too frequent deaths of guardians due to HIV/AIDS, leaving children below the age of majority in legal limbo.Footnote ⁸⁶

The act formally places woman and men who parent children born outside marriage on an equal footing. The mother is no longer automatically sole custodian or guardian of the child, in the absence of a High Court order awarding the father both or some of these rights; instead, there is an assumed equality. However, juxtaposed against this is the “default position” that, if there is no agreement or application for interim custody, the common law position privileging the mother's rights prevails. In practice, it is also true that the majority of persons having physical custody of a child are likely to be mothers, who are then arguably not disadvantaged in the operation of the new statutory rules; this may in fact lead to a conclusion that, the illusion of formal equality notwithstanding, possession is nine tenths of the law.

However, should a case come to court, the act implies that both parents have equal rights to be considered for the award of custody and guardianship, with the child's best interests informing the final decision.

The Draft Namibian Child Care and Protection BillFootnote ⁸⁷ contains an entire chapter on “proof of parentage and children born outside marriage” (chapter 6). The bill does not refer to the allocation of or incidence of custody or guardianship where a child is born in marriage, leaving this to be regulated, as before, by the common law and the Married Persons Equality Act 1996. The bill re-incorporates the provisions of the Children's Status Act, but envisages eliminating some of the practical problems by improving the procedures provided for under that act. The special status accorded to physical custody of the child is to be removed, in an attempt to avoid the deleterious effects of children being moved back and forth to obtain legal advantage: the “winning” custodian parent frequently being then spared the duty of paying maintenance. Social workers' reports will be required when custody and guardianship are disputed, to guide courts. The bill does not define custody or guardianship, or sole custody or sole guardianship (as did its predecessor). These terms will therefore bear their common law meaning.

Analysis of the equality dimensions of the Children's Status Act

Are children's rights to non-discrimination upheld in the provisions adopted in 2006 with this aim in mind? First, because a requirement exists that one parent must have sole custody and, unless a court has directed otherwise, sole guardianship, illegitimate children are deprived of the benefit of joint parenting (albeit that the maintenance duty remains unaltered). The final version of the act was affected by civil society lobbying to avoid a “straight equality position”, ie automatic joint custody rights for both parents of children born out of wedlock. Their concern was the position of vulnerable single mothers struggling to enforce maintenance commitments against absent fathers; it was argued that the absent father could in theory evade maintenance by exercising custody rights to remove the child from the mother's care.Footnote ⁹¹

!Owoses-/Goagoses's conclusion that the ratification of international treaties has demanded a shift from a parent rights based approach to a child rights one has not been effected by the Children's Status Act.Footnote ⁹² Her conclusion that the act ensures that “both parents have a common responsibility for the upbringing and development of the child” downplays the “winner takes all” approach that the act contains.

Secondly, the right to custody is still conceived as being that of a parent (against another parent), rather than the right of the child to parental care, although the latter is axiomatic when children are born in wedlock. The failure to provide in law for a “default” position where an agreement is not reached between the parents, or litigation is not launched, demonstrates a failure to consider the issue from the child's perspective.

Thirdly, the designation of which parent is to be the sole custodian, by agreement, is not required to take account of the best interests of the child; rather it reflects the respective power relations between the mother and the father. Although a court making a custody order is required to take account of the best interest of the child (section 11(5) of the Children's Status Act), the ex parte application procedure for the award of an interim custody order neither requires the voice of the child to be heard, nor is the court yet compelled or enabled to require any expert testimony as to what would be in the best interests of the child.Footnote ⁹³ These issues will be resolved in the new provisions of the draft bill.

The Children's Status Act did bring with it the benefit of accessibility, as the children's court at district level can adjudicate these matters instead of the High Court.