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

permission for it? In other words, certain basic
responsibilities must be fulfilled if one is caring
for a child properly. Similarly, where a family
member without clear parental responsibilities
is caring for a child, certain responsibilities should
be placed on that person. For example, if you
are caring for a child, whether or not you are
the parent, you should have a duty to protect
the child from harm, and a duty to ensure that
the child has adequate food, shelter and clothing.
I mention all these issues under guardianship
because all are facets that may apply to children
orphaned by AIDS or anything else, who may
be left without clear lines of responsibility and
decision-making on their behalf. If there is an
opportunity during this conference, it would be
very useful to discuss how these problems relate
to OVC.
The next issue I will raise, i.e. stepparents’
responsibilities for their stepchildren, is
very controversial. We have been looking for
examples from other countries, and there seems
to be a movement towards saying that stepparents
should have some responsibilities for
stepchildren if they are living as a family in the
same household. Under our existing law stepparents
and stepchildren have no legal duties
towards each other; only the biological relatives
of a child have a duty to look after that child.
The only way for a stepparent to have a legal
relationship with a stepchild is by adopting the
child, which is possible under existing law.
A question arising in a number of contexts
is whether a stepparent should have a duty to
support a stepchild while the stepparent is married
to the biological parent. If so, what happens
if the couple divorces? Could the divorce court
order a stepparent to pay maintenance for a
stepchild? Should this be limited to stepchildren
that a stepparent knows about at the time of the
marriage? What happens if five years down the
line your spouse asks if she/he ever mentioned
the 10-year-old staying with the grandmother?
Inheritance is another question. If a stepparent
has been maintaining a child, should that
child be able to request maintenance from the
estate of that stepparent? No one is proposing
that there should be general rights of inheritance
– we have not found these in any country – but
just a right to maintenance from the deceased’s
estate. Let us say that for years a stepfather has
been maintaining a child and he suddenly dies.
Biological children would have a right to claim
maintenance from the estate. Should a stepchild
who has been maintained in the same way have
the same rights?
These are just some of the questions. This is
a complicated package because it is not just
saying that there should or should not be stepparent
responsibilities, but also which ones. Most
other countries limit stepparent responsibilities
to situations where there is an actual practical
and emotional relationship between the stepparent
and stepchild, and most require some
evidence of a parent-child-type relationship.
The final issue I would like to discuss in detail
is age of majority, this being the age at which
you no longer need your parents to make legal
decisions for you; you have the right to enter
into contracts without assistance from a parent
or guardian. Namibia’s Age of Majority Act sets
the age of majority for boys and girls at 21 years.
The reason there is a question about this is that
more and more laws in Namibia are defining
‘child’ as a person under the age of 18. Youthful
offenders, for example, are usually defined as
people under 18. Maintenance is usually paid
up until a child turns 18 unless there is a compelling
reason for continuing it. The CRC defines
a child as a person under 18, and it has already
been brought to Namibia’s attention that we are
perhaps in conflict with the CRC on the question
of age. The committee that reviewed Namibia’s
initial report noted that Namibia seems to have
a range of ages at which children acquire certain
rights and responsibilities, which may require
further examination. One possibility that the task
force favours is recommending lowering the age
of majority to 18, which would be consistent with
the CRC. The relevant age for many responsibilities,
such as voting and driving, is 18. This
creates a conflict because we are saying that a
child is old enough and responsible enough to
drive and to vote, but not to enter into contracts
without parental consent. If, for example, a 19year-old
driver is in a car accident and wants to
bring a court case, his/her parents would have
to assist. The task force is concerned to resolve
some of the conflicts arising from different ages
being set for different rights and responsibilities.
<strong>2nd</strong> <strong>National</strong> <strong>Conference</strong> on Orphans and Other Vulnerable Children – Windhoek, Namibia, 25-27 June 2002: Full Report
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