Potential problems with the revised Children's Status Bill.

The revised Children's Status Bill tabled in the National Assembly on 8 November and adopted with little debate two weeks later is certainly an improvement over the previous version. The revised version says that unmarried mothers and fathers will have equal rights to custody of their children. This is not the same as the unworkable joint custody proposed by the previous bill.

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Joint custody means that all decisions must be made jointly by the parents in consultation with each other. Equal rights to custody means that a child born outside of marriage can live with either parent. If there is a dispute about this, then either parent can approach a children's court to request sole custody. The court must make a decision based on the best interests of the child. And the bill specifically says that the court must not approve an application for custody that appears to be based on a desire to avoid paying maintenance of the child.

This approach will be problematic in many situations, but even more serious problems are likely to arise when one parent dies. Unmarried parents will all have equal rights to custody, meaning that when one of them dies the other parent will become the child's sole remaining guardian and custodian--regardless of whether that other parent has even been maintaining contact with the child.

Even if one parent has already successfully applied to a court for sole custody, the other parent will still become the child's sole custodian unless the court order has specifically prohibited this. And only a parent who has been granted sole custody and guardianship of a child by a court has the right to make a will naming anyone else as the child's custodian and guardian.

Formal equality ignores reality

This approach provides formal equality to mothers and fathers on paper, but it is not an approach which is well suited to the current situation in reality, where very few single fathers take responsibility for day-to-day child care. Statistics indicate that only 4% of Namibian children under age 15 live with their fathers but not their mothers--and only 0,4% live with their fathers after their mothers have died. (Namibian Demographic and Health Survey 2000, Ministry of Health and Social Services, 2003)

In reality, most people are unlikely to resolve the question of who looks after a child by going to court for an order for sole custody and guardianship. Some parents will make friendly agreements between themselves. Some conflicts will be resolved through family negotiations. In some cases, a parent who is not interested in maintaining contact with the child will simply disappear from the scene. Let's imagine some of the problems that the proposed law might create in practice.

Where is father Joseph?

Consider Mary and Joseph, who have a brief relationship. Mary falls pregnant, but by the time little Sarah is born, the relationship has already broken up. Mary and Sarah live with Mary's mother, and Mary is not even sure where Joseph is now. Joseph has never paid any maintenance for Sarah. When Sarah is five years old, Mary dies. Joseph, who has never laid eyes on Sarah, is now her sole guardian and custodian. Mary's mother is struggling to support Sarah, but she cannot apply for a state maintenance grant for Sarah, because she has no legal rights over her. She does not know how to find Joseph, and she does not know what she can do to care for Sarah.

No place for Ruth's children

And now let's imagine Ruth and Samuel. Ruth and Samuel live together for six years. They have three children, but they do not marry. Samuel then leaves Ruth for another woman. He marries this other woman, and has two more children with her. He sends some money to Ruth for their children from time to time. Samuel's new wife wants all of his money to go towards her children, so she discourages Samuel from maintaining contact with his children by Ruth. Then Ruth dies. Samuel is their sole guardian and custodian. But his new wife objects to the idea of Ruth's children living in their house. What is going to happen to Ruth's children?

Custody for an abusive father?

Even worse, let's imagine Rachel and George. They live together, without marrying, and have two daughters together. Then Rachel moves out because George has become abusive towards her and the children. She even suspects that there may be sexual abuse of one of the daughters. Rachel moves in with her sister. George does not bother them any more, so Rachel moves on with her life and has no further contact with George. But when Rachel suddenly dies in a car accident, George acquires sole and full legal responsibility for the two girls.

Custody for a rapist?

And now, worst of all, think of Jane. Jane fell pregnant as a result of a rape. The rapist was convicted to 12 years in jail. When he came out of prison, the child born of the rape was 13 years old. One year later, Jane died and her rapist became the sole custodian of the child born of the rape.

Making a will won't help

Mary, Sarah, Ruth and Jane could not have avoided this outcome by making wills, because the revised Children's Status Bill says that only someone who is a sole guardian and custodian can name another guardian and custodian in a will. They could have gone to court and requested an order making them the sole custodians and guardians of their children, and asked the court to include a provision in the court order about what would happen if they died. But there could be many reasons why these four women did not take that step.

Mary lives in a rural area. She is barely literate and never heard about the Children's Status Act. Ruth had heard something about the law, but was not very clear about its procedures. Also, as a young woman, she simply never thought that she might die before her children grew up. Rachel was afraid of George. She did not want to go to court for maintenance or anything else because she was worried that this might act as a trigger which would start the abuse all over again. Jane felt safe because the man who raped her was in jail. It did not even occur to her that he could possibly get rights over the child born as a result of his crime.

The proposed bill will not serve the children in these situations well at all. It will not protect their best interests.

What serves the best interest of children?

But of course, not all fathers are like Joseph, Samuel or George--and very few fathers are rapists. The question is how to protect fathers' rights without prejudicing children's best interests.

The Legal Assistance Centre remains unconvinced that equal custody is the best approach for children born outside of marriage, because of the wide variety of circumstances which could be involved--a committed relationship, a casual relationship, a one-night stand, a sex worker and her client, a rapist and his victim. We do not feel that equal rights to custody are appropriate in all of these circumstances. And because many Namibians are reluctant to approach our already overloaded courts, we believe that the law should strive to minimise the number of court cases which will be involved.

Until the time comes when responsibility for children born outside of marriage is being shared more equally between mothers and fathers in practice, we continue to recommend sole custody to the mother as a starting point. This is also supported by the biological fact that only women can give birth and breastfeed.

Protecting the rights of fathers

We propose the following mechanisms as a way to protect fathers' rights: (a) automatic rights of access by all fathers, with a simple and inexpensive procedure for fathers to use if mothers attempt to deny them their access rights (b) a simple and inexpensive procedure whereby interested fathers could go to a magistrate's court to request custody rights, with the court's decision to be based solely on the child's best interests and not on the sex of the parent.

But even if equal custody for unmarried parents is retained, we recommend altering the provisions on what happens when one parent dies. We would recommend that any parent who is in fact exercising sole custodial control over a child should be treated as the sole custodian of the child, even if the other parent has an equal right to custody in theory which has not in fact been exercised. If the parent who dies was actually caring for a child as if he or she were a sole custodian, then the procedure for court approval of applications for custody and guardianship should come into play. We believe that the absent or uninvolved parent should not automatically become the child's custodian and guardian, because this will simply not be in the child's best interests in all situations.

The Children's Status Bill is a particularly important law because it will affect so many people in Namibia. Unlike many other laws, which are available to people to reach out and use if they choose, the Children's Status Bill will automatically affect the status of children and their parents. Thus, its consequences will be extremely far-reaching. We know that there has already been a great deal of discussion and debate about this law. But we appeal to Parliament to continue fine-tuning this key piece of legislation before it is passed.

This story was first published in The Namibian, 11 November 2005 and has been slightly updated.

Dianne Hubbard, Legal Assistance Centre