THE Ministry of Women Affairs and Child Welfare yesterday moved to level the playing field for children born outside of marriage.
After nearly 10 years of preparation, Minister Netumbo Nandi-Ndaitwah unveiled the Children’s Status Act, which provides for all children to be treated equally irrespective of their parents’ marital status, in the National Assembly. The emphasis of the Bill shifts from the status quo of parent’s competing for the rights to their child, to focusing on the rights of the child in terms of the Namibian Constitution and the UN Convention on the Rights of the Child.Nandi-Ndaitwah said despite constitutional provisions guaranteeing equal opportunity and treatment for all children, the reality was that legally and practically this was not happening.The status of children at birth was cited as the main reason for this situation.Orphans, she added, were also hugely disadvantaged by the system.”It is not the children’s fault that they are born in circumstances that they find themselves in.It is neither just nor fair that children should suffer because those who brought them into the world fail in their duties and responsibilities,” said Nandi-Ndaitwah.The Bill also provides for the protection of children born through artificial insemination and other reproduction techniques.The proposed legislation will work in tandem with the Maintenance Act, passed in November, to increase society’s involvement in the care of children.In terms of the Bill, children born outside marriage would have the right to maintain contact with both parents.Sole custody would be vested with the mother until the child turned seven years old, when both parents would share this right.This would not apply where a child had been born as a result of rape and the father had been convicted of this crime.Both parents would also share guardianship of their children and would have equal decision-making powers in administering the child’s assets and business affairs.Yesterday, the Gender Research and Advocacy Project of the Legal Assistance Centre (LAC) said it still had a number of concerns about certain provisions in the bill – especially regarding the custody and guardianship of a child.The LAC argues that giving both parents shared custody could be contrary to the child’s best interests and could provide a means for parents to manipulate each other.”We believe that the custody should rest with the mother as a starting point, since she is the only parent sure to be present at birth.The father should have a right to apply for custody at any stage,” said Dianne Hubbard.She likened the situation to divorce, saying in such a situation, parents rarely obtained joint custody.Hubbard said giving parents joint custody would also clash with provisions in the Maintenance Act.The LAC maintains that the court should neither favour mothers or fathers on the grounds of gender and that custody decisions should be made solely in the the best interests of the child.It has also taken issue with the equal guardianship of children born out of wedlock, saying this provision should go together with sole custody.The LAC maintains that the child’s daily care-giver would be in the best position to understand the child’s needs.Granting the surviving parent automatic rights to custody and guardianship upon death of the other parent, was “dangerous” for the child, the LAC said, adding that the person might not be fit to do so or might not have had significant contact with the child.Debate on the bill is expected to start in the National Assembly on Tuesday.The emphasis of the Bill shifts from the status quo of parent’s competing for the rights to their child, to focusing on the rights of the child in terms of the Namibian Constitution and the UN Convention on the Rights of the Child. Nandi-Ndaitwah said despite constitutional provisions guaranteeing equal opportunity and treatment for all children, the reality was that legally and practically this was not happening. The status of children at birth was cited as the main reason for this situation. Orphans, she added, were also hugely disadvantaged by the system. “It is not the children’s fault that they are born in circumstances that they find themselves in. It is neither just nor fair that children should suffer because those who brought them into the world fail in their duties and responsibilities,” said Nandi-Ndaitwah. The Bill also provides for the protection of children born through artificial insemination and other reproduction techniques. The proposed legislation will work in tandem with the Maintenance Act, passed in November, to increase society’s involvement in the care of children. In terms of the Bill, children born outside marriage would have the right to maintain contact with both parents. Sole custody would be vested with the mother until the child turned seven years old, when both parents would share this right. This would not apply where a child had been born as a result of rape and the father had been convicted of this crime. Both parents would also share guardianship of their children and would have equal decision-making powers in administering the child’s assets and business affairs. Yesterday, the Gender Research and Advocacy Project of the Legal Assistance Centre (LAC) said it still had a number of concerns about certain provisions in the bill – especially regarding the custody and guardianship of a child. The LAC argues that giving both parents shared custody could be contrary to the child’s best interests and could provide a means for parents to manipulate each other. “We believe that the custody should rest with the mother as a starting point, since she is the only parent sure to be present at birth. The father should have a right to apply for custody at any stage,” said Dianne Hubbard. She likened the situation to divorce, saying in such a situation, parents rarely obtained joint custody. Hubbard said giving parents joint custody would also clash with provisions in the Maintenance Act. The LAC maintains that the court should neither favour mothers or fathers on the grounds of gender and that custody decisions should be made solely in the the best interests of the child. It has also taken issue with the equal guardianship of children born out of wedlock, saying this provision should go together with sole custody. The LAC maintains that the child’s daily care-giver would be in the best position to understand the child’s needs. Granting the surviving parent automatic rights to custody and guardianship upon death of the other parent, was “dangerous” for the child, the LAC said, adding that the person might not be fit to do so or might not have had significant contact with the child. Debate on the bill is expected to start in the National Assembly on Tuesday.
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