Mmegi Online :: What is 'a child'?
Banners
Banners
Banners
Banners
Last Updated
Tuesday 20 November 2018, 13:46 pm.
Banners
What is 'a child'?

There is lack of uniformity in the various statutes of Botswana which relate to children as each statute serves a specific purpose. Consequently, at the time of accession Botswana entered a reservation as follows:
By Staff Writer Tue 20 Nov 2018, 20:35 pm (GMT +2)
Mmegi Online :: What is 'a child'?








"The Government of the Republic of Botswana enters a reservation with regard to the provisions of article 1 of the Convention and does not consider itself bound by the same insofar as such may conflict with the Laws and Statutes of Botswana."  A brief synopsis of statutes relevant to the definition of a child follows.  Generally courts should always ensure that they ascertain to their satisfaction the ages of any children involved in any dispute, civil or criminal, before them in order to extend the relevant protections provided for in the statutes.

According to section 49 of the Interpretation Act the legal age of majority in Botswana is 21 and it is at this age that a child acquires full legal capacity to act on his/her own officially and in legal matters.  There is no stipulated minimum age at which a child becomes eligible to seek independent legal advice but a child below the age of majority is deemed not to have any

locus standi, capacity to contract and to sue or be sued without parental consent or assistance. The Constitutional Amendment Act of 1997 reduced the voting age from 21 years to 18.  The Children's Act (Cap 28:04) defines a child as any person below the age of 14 years (s2).  This Act makes provision for the appointment of Commissioners of Child Welfare to deal with neglect, ill-treatment and abuse of children; for the custody of children in need of care; for the establishment of children's and juvenile courts and institutions for the reception of children; and for other matters incidental to the above.

For purposes of the Adoption Act (Cap 28:01) a child is a person under the age of 19 years (s2).  This Act makes provision for the adoption of children in Botswana and for related matters.

83. The Affiliation Proceedings Amendment Act of 1999 defines a child as a person below 18 years of age.  This Act provides for the making of orders for the maintenance of such children and other associated matters.

84. In terms of the Deserted Wives and Children's Protection Act (Cap 28:03), which regulates the making of orders for the maintenance of wives and children who have been deserted and are without adequate means of support, a child is a person under 16 years of age or who is under 21 years and is not earning his own living (s2).  This means that, for purposes of this Act, any person who is between 16-21 years and is earning his/her own living is not a child.

85. Civil marriage is regulated by the Marriage Act (Cap 29:01), according to which a person below 21 years of age requires the consent of his/her parents or guardian (only the father's consent is required if the person's parents are married) unless she/he is a minor widow or widower.  No male below 16 years of age or female below 14 may marry (s17).  At common children born outside marriage 

116. Children born outside of marriage also experience differential treatment under both common law and customary law especially in matters of maintenance, inheritance, guardianship, and marriage.  Mothers have complained that they have not been supported appropriately by their extended families and the overlap of the customary law of seduction damages and the common law of maintenance can cause consternation and confusion to elders, unmarried fathers and mothers alike.

117. Under traditional customary law children born out of wedlock belong to their mother's family in terms of name and guardianship whereas those born within wedlock will fall under the name and guardianship of their father who will have the duty to maintain them.  There is a link between the customary law of damages for seduction and maintenance of a child born out of wedlock.  Generally the customary law system gives the father of an unmarried mother the right to sue the father of the child for compensation for seduction.  Compensation is usually paid in cattle or their cash equivalent to the maternal grandfather.  The extended family may make such living arrangements for the child as are appropriate depending on the specific circumstances of the family and its children.  

118. Common law rules regarding guardianship and custody also treat children differently depending on whether they are born within or outside marriage.  Guardianship vests in the father when the child is born within marriage and with the mother's family when the child is born outside marriage.  This discrepancy is reflected in the law relating to registration of births.  Upon birth of a child within marriage, a duty is imposed on both parents to give notice of the birth and enter their names on registration documents in accordance with the provisions of the Births and Deaths Registration Act (Cap 30:01). 

However, with regard to a child born out of wedlock provision is made in the Act that no one may be entered as the father of a non-marital child except with his written consent.

119. A child born within marriage also has a statutory right to guardianship by its father but in cases of unmarried parents the mother has to take legal action in order to determine paternity and obtain maintenance under the Affiliation Proceedings Act or under common law principles.  A mother who failed to take action within the old Affiliation Proceedings Act time limits argued that she had a common law right to receive support (citing Botswana's obligations under the Convention to ensure non-discrimination).  The High Court agreed with the mother and the statute was subsequently amended.  A claim under this Act can be made in addition to the claim for seduction damages in customary law.

A child born within marriage is entitled to inherit from the parents who die intestate.  A child born out of wedlock can only inherit from his/her father where the father has made a bequest to the child, or is voluntarily recognized by the father's family.  However the testacy and intestacy rules are complex due to the overlap of individually owned property and customarily owned land and the latter may fall out of the law relating to testacy and fall to be administered according to customary law.  

121. In addition, section 6 of the Children's Act provides for differences in the law relating to the protection of infants depending on whether they are born of married or unmarried parents in that only the maternal relatives of a protected child (under the age of 7) born outside of marriage are automatically permitted to take care of him/her without registration.  For children of married parents both paternal and maternal relatives of a protected child can take care of the child automatically without registration.

B.  Best interests of the child:  article 3
122. The concept of the best interests of the child is not constitutionally enshrined nor built

into public or private institutional decision-making and policy-making; courts of law; administrative or legislative bodies.  However the National Development Plan 8 and Vision 2016 emphasise the civic values of responsibility, duty, tolerance and respect which are incorporated into the education curriculum and policies which relate to children and young people.  Vision 2016 has, as an aim, to put an end to "negative social attitudes towards the status and role of women, the youth, the disabled and the elderly."6
123. The application of the concept of the best interest of the child under customary law is negligible since customary law in the traditional sense does not treat the rights of children or of any other group separately from the rights of the family as a unit.  This is reflected within the family unit where the head of the family determines what is in the best interests of the child

Banners

according to the values of the family and their cultural and religious background.

124. However, section 6 of the Customary Law (Application and Ascertainment) Act of 1969 first introduced this concept into the laws of Botswana to specifically apply to custody cases.  This Act makes provision that "in any case relating to the custody of children, the welfare of children shall be the paramount consideration irrespective of which law or principle is applied". 

It must be noted however that this Act makes reference to "welfare" and not "best interests" but the two terms have been interpreted to be synonymous by the courts. 

This Act applies to all custody cases whether of children born in or outside wedlock.  A precise definition of the concept has not been elucidated although the principle has been consistently applied.

125. In its original jurisdiction the High Court is the upper guardian of minor children. 

Courts therefore consider the welfare or best interests of the child as being paramount and have affirmed this principle in various judicial pronouncements (see below). 

The concept as judicially interpreted is given an all-embracing approach that seeks to protect the general welfare of the child, such that all relevant circumstances are taken into account in determining what is best for the child.In dealing with custody cases arising in relation to children born within marriage, judges have interpreted "best interests" by attaching importance to material welfare, living conditions and educational facilities7 and the intention of the parent to live with the child themselves or hand them over to a relative.8  The courts have tended to assume that it is in a young child's best interests to be in the custody of their mother,9 that adolescent boys should be with their fathers and girls with their mothers.10  The courts have, on occasion, taken the views of the child into account and have tried not to disturb existing arrangements.

127. There have been only a few cases of custody disputes relating to the best interests of children born out of wedlock.  In Chiepe v. Sago11 the court awarded custody of a child born out of wedlock to the father, despite the fact that the mother was recognized by common law as the child's legal guardian. 

The court was of the view that "the Common Law provides that the court, acting as upper guardian of all minor children within its jurisdiction, will only deprive the mother of an illegitimate child of its custody on special grounds being shown".  From the evidence adduced before the court, it was held that the father had made out a prima facie case and established his ability to care for the child and make arrangements suitable for the upbringing of the child. 

The court therefore held that "having considered all the evidence and the arguments advanced, I have reached the conclusion that it is in the best interest of this young boy to remain in the custody of his father.  He is in my opinion, the more stable of the two parents and I can see no good reason to disturb the routine that the child has become accustomed to ..." Also in the case of Langebacher v. Thipe12 the High Court held that in determining issues of access of an unmarried father to his children that "the welfare of the child is the first and paramount consideration".  This approach was also reflected in the case of Phiri v. Dintsi and Dintsi.13 

128. The Children's Act makes every magistrate a commissioner of child welfare and where there is no magistrate, the district commissioner, district officer of the administrative district or the Chief (part II s3).  The Act is aimed broadly at the prevention of neglect and ill-treatment of children, protecting children at risk, providing for children in need of care and the establishment of juvenile courts and homes and institutions for the reception of children.  Section 7 provides that where a Commissioner of Child Welfare has reasonable grounds to believe that a child is being kept in "surroundings or circumstances" which are not in their best interests (s7 (2)) she/he is authorised to call upon the parent or guardian to make suitable provision and if they fail then to remove the child from the family and place him/her with suitable foster parents. Respect for the views of the child:  article 12

135. In the Constitution of Botswana the right to communicate ideas and information is enshrined in section 12.  It is subject to limitations and children are not technically restricted from exercising this right although they would have some problems ensuring that it is respected given their status as minors.  It must be stated that in terms of Setswana culture respect for the views of the child is not regarded as a right. 

Children do not generally attend or speak at the kgotla where issues of significance in a community have traditionally been and continue to be discussed.  There is therefore a culture of believing that adults know what is best for children and that they are in a position to articulate the views of their children.  

136. Children would particularly be affected by the influence of their parents over legal decision-making given the high age of majority.  This is significant because, where there is a choice of law or legal system between customary and common law, this choice is not exercised by the child but by the parent or guardian.

137. Vision 2016 mentions the need for youth organizations to be encouraged "to adopt a higher profile to promote the interests of young people" and in the consultation process which informed the Vision, 740 essays were received from schoolchildren and students through a national essay competition.

138. A review of the Children's Act is under way within the Division of Social Welfare and NCWC.  A children's forum took place during April 2001 in which children from around the country, aged 11-18, were brought together to express their opinions about how the legislation should be changed.

139. In terms of the Adoption Act, a Court to which an application for an order of adoption is made shall not grant the order unless it is satisfied, amongst other matters, that the child, if over age 10, consents to the adoption.

140. In disputes relating to the custody of children on dissolution of marriage, courts do sometimes take the preference of the child into account in cases where such child is considered to be old enough to make up his mind.  In the case of Ramotshubi v.

Ramotshubi,15 it was held that the court cannot be dictated to, but when dealing with children of 17 and 15 it would be wrong to completely ignore their expressed intentions and wishes.  In Makuku v. Makuku16 it was held that children aged 19, 16, 14 and 9 years be allowed to stay with their father after the court had sought their opinion and evidence adduced showed that they were happy with their father.

141. In schools discipline is emphasized and considered to be an important part of child development.  It is said to be harsh and strict with little emphasis on the views of the child.  

142. All secondary school institutions are encouraged to form school councils with a representation of a cross section of the school community including students. 

The intention is for students to be given effective channels of communication and to air their views.  It has been found that where schools have such councils in place, schools have managed to avert crises, which could easily have erupted into riots or school disturbances.  The Student's Representative Councils are a link between the management and the students.

Subscribe to our Newsletter
Banners
Banners
Banners


Banners
Banners
Subscribe to our Newsletter
have a story? Send us a Tip
Banners
  • Previous
    Next
    Masa Centre
    ::: Tuesday 20 Nov - Tuesday 20 Nov :::
  • Previous
    Next
    Riverwalk
    ::: Tuesday 20 Nov - Tuesday 20 Nov :::
  • Previous
    Next
    Gamecity
    ::: Tuesday 20 Nov - Tuesday 20 Nov :::
Selefu
Judges
Banners
Banners
istanbul escort