A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

Patricia Molu v Cidie Molu (Pacific Islands: Vanuatu)
Commentary
This case marks a step forward in the welfare <strong>of</strong> children in custody disputes as it
held that children must not be viewed as possessions. The Convention on the Rights
<strong>of</strong> the Child 1989 was utilised to overturn Vanuatu custom that gave precedence
to the father in custody disputes. In place <strong>of</strong> that custom the Court substituted the
principle <strong>of</strong> the “best interests <strong>of</strong> the child”. This test creates a neutral standard under
which either parent can be awarded custody depending on the best interests <strong>of</strong> the
child. It requires that the ability <strong>of</strong> each party to care for the child be considered and
weighed up.
This finding, as well as recognising the rights <strong>of</strong> children, also advances the rights
<strong>of</strong> women in the context <strong>of</strong> custody disputes. This new standard provides a gender
neutral basis affording women a better chance <strong>of</strong> being awarded custody <strong>of</strong> their
children. However, that standard may favour the father over the mother, since <strong>of</strong>ten
the father is in the strongest position to <strong>of</strong>fer financial security for the children.
Although such considerations may sway the Court towards finding for the father it is
nevertheless a big step towards granting fair and unbiased decisions in future custody
cases.
The reliance on the Convention on the Rights <strong>of</strong> the Children was integral to this
case as the Court stated that Vanuatu, having ratified the Convention, had a legal
responsibility to abide by it. The relevant Article, Article 3(1), is enforceable by
the courts without specific legislation to implement it unlike other Articles in
the Convention. The Court thus used its powers to the fullest in implementing
international law.
The Court’s comments in relation to the respondent’s claim to be reimbursed for his
costs during the marriage is also significant. It firmly emphasised that marriage is
a commitment <strong>of</strong> mutual responsibility and that the contribution by a father and a
husband is not one <strong>of</strong> payment for services rendered. Instead it is a fundamental duty,
both moral and legal, amongst family members.
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