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

on inter-country adoption, namely the Hague
Convention. Namibia is not yet a party, but
may become a party in future. The convention
attempts to regulate inter-country adoption to
make it possible for adoptions to take place
between countries which are both party, while
avoiding the danger that a market in children
could develop, or in other words to try to allow
bona fide adoptions but not the sale of or trafficking
in children. Because Namibia has not
yet signed the convention, there is a question
mark as to whether or not Namibia’s children’s
legislation should take it into account.
The position is similar with the Hague
Convention on Inter-country Abduction.
Namibia may become a party, so we may have
to take this issue into account in our children’s
legislation. As with inter-country adoption, the
purpose of the international convention on
abduction is to allow for co-operation between
countries and mechanisms to facilitate cooperation
to deal with abduction cases and to
stamp out the practice of children being taken
from one country to another in this way.
Another area under discussion, on which we
may get some guidance from this group, is that
of harmful social and cultural practices.
We need to find out if there are such practices
in Namibia affecting our children and what kind
of remedies are needed in the children’s legislation.
One example brought to the task force’s
attention is that in some communities there are
certain procedures performed on young females
to prepare them for sexual maturity. One such
procedure is a form of stretching which would
fall under the Type 4 category in the World
Health Organisation definition of female genital
mutilation. We might also have to ascertain
whether or not there are procedures performed
in terms of male circumcision that ought to be
covered in our children’s legislation. In some
South African provinces, though they do not by
any means outlaw male circumcision, it has to
be done in conformity with certain health
standards to guard against infection. These are
issues requiring much more discussion, but the
idea is that there should perhaps be a provision
in our children’s legislation that specifically
protects children from harmful social and
cultural practices. This forum may wish to put
forward examples of such practices for consideration
during the deliberations, examples of
mechanisms to address such practices, and
insight on the extent of the problems.
One issue of particular relevance to children
affected by HIV/AIDS is that of guardianship.
The difficulty is that under our existing law, if a
child’s guardian dies and that guardian has not
made a will naming another person as guardian,
and if there is no surviving parent, that child
will be left without a guardian. The High Court
can appoint a guardian for a child who does
not have one, but this procedure is not easily
accessible to most people in Namibia, and it is
also expensive. There are several different ways
to address this problem.
In the draft Children’s Status Act there is
already a proposal that where a guardian has
not been named in a will, guardianship should
pass from the deceased to the nearest ascendant
blood relative (i.e. to the next person up rather
than down in the line of family connection). The
idea is that guardianship would be ‘inherited’ if
there were no other provision for it, so that a
child would not be left without a guardian.
An additional provision we are considering
is that it should perhaps be possible, in particular
when there is no family dispute, for relatives
who want to take guardianship responsibility
for a child to do so by way of an administrative
procedure rather than having to go to the High
Court. The High Court would still be there as a
safeguard, and certainly would need to be
involved if there was a dispute, but the Master
of the High Court is often being approached
by relatives who say, “This child has been left
without a guardian, there was no will, can you
help us to become the child’s guardians?”
A third aspect of the guardianship problem
is that there may be people who are not closely
related to a child taking care of the child, who
may not be willing to take on the responsibility
of full guardianship. The question is, should
there be a certain degree of parental responsibility
that goes along with de facto care and
control of a child? For example, if you are
standing in the shoes of a parent, even if you
are not intending to do so permanently, should
you not be able to get medical treatment for the
child without having to find a guardian to give
12 <strong>2nd</strong> <strong>National</strong> <strong>Conference</strong> on Orphans and Other Vulnerable Children – Windhoek, Namibia, 25-27 June 2002: Full Report