2nd National Conference on Orphans and Other ... - FHI 360

The new Act will also cover adoption, as
does the existing Children’s Act. This portion of
the Act is still under discussion as there will be
further consultation with adoptive parents and
adopted children for input on some provisions.
Other provisions of this Act cover basic
children’s rights. One recommendation of the
task force that may be controversial is to outlaw
corporal punishment by parents in Namibia, in
the same way as it is no longer allowed in the
schools. Controversial as it may be, we believe
this issue has to be put on the table for discussion.
The committee that monitors the CRC is of the
opinion that corporal punishment by parents is
inconsistent with the CRC. This issue will be
debated – perhaps in this forum too.
There are also basic statements in the new
Act about parental responsibilities, and
though the draft is not final, I would like to read
the relevant section because it says something
very new:
(1) Every parent, guardian or person
having custody of a child shall safeguard
and promote that child’s health, and be
responsible for its development and welfare,
and that child shall have the right to:
(a) education and guidance
(b) immunisation
(c) adequate diet
(d) clothing
(e) shelter and
(f) appropriate medical attention.
(2) Every person having custody of a
child shall protect the child from discrimination,
violence, abuse, neglect and social
or customary practices that are likely to
be harmful to the child.
This is a new concept to give attention not
just to what parents should not do, for example
exert corporal punishment, but also to what they
should do, meaning the positive responsibilities
of parenthood. This is a new emphasis in the
sense that to date our law has tended to focus
on rights rather than responsibilities. There is an
international trend towards talking more about
parental responsibilities.
CHILDREN’S STATUS ACT
I will now give an overview of the Children’s
Status Act, to set the stage for highlighting a few
issues which may be particularly interesting to
this forum, or particularly controversial.
The primary reason for having the Children’s
Status Act is to try to remove the discrimination
currently experienced by children born outside
of marriage. Under our existing Roman-Dutch
common law, a child born outside of marriage
is not considered to be related to the father, even
if the father acknowledges paternity, with the
result that such a child cannot inherit from the
father without a will. Even if there is a will, the
child is sometimes excluded due to restrictive
interpretations of the terms used in wills.
The flipside is that the father of a child born
outside marriage is excluded in legal terms from
having certain rights over the child. The father
of such a child has no right of access to the child,
nor any of the other normal parental rights that
go along with parental responsibilities. Men raise
this problem in the context of maintenance.
They ask, “Why should I pay maintenance if I
have no rights to the child?”
This Act will attempt to address these sets of
problems, but the primary change it will make
is to remove all discrimination against
children born outside of marriage. If the
father is known and paternity can be proved,
then the child and father will be considered to
be related, and there will be a right of inheritance
between father and child as there is
between mother and child.
The draft Act proposes that there should be
an automatic right of reasonable access
for the father, unless a court finds such access
not to be in the child’s best interest. The reason
for taking this stance is that in a country like
Namibia, if one first has to go to court to secure
a right, for most people it is not a meaningful
right since most people in Namibia still find it
difficult to access the courts to assert a right. So
we thought that the starting point should be to
make access automatic, except in what we hope
will be those more unusual situations where the
father’s access might pose a danger to the child.
Regarding custody of a child born outside
of marriage, the law will still be that initially
10 <strong>2nd</strong> <strong>National</strong> <strong>Conference</strong> on Orphans and Other Vulnerable Children – Windhoek, Namibia, 25-27 June 2002: Full Report