The Bill amending the Guardianship of Minors Bill currently before Parliament and under public debate eliminates many legal issues and clarifies that both parents, whether or have been married under civil or customary law, must share guardianship and custody unless a competent court decides otherwise.
This is fine as far as it goes, given the accompanying memorandum, to implement the Constitution and clarify that the same law applies to customary marriages and divorces as to the position civil law, while stressing that this common position must ensure that both parents have equal rights and must come to an understanding.
But the situation of a child born out of wedlock is still somewhat uncertain, although there is now a fairly strong Supreme Court ruling that effectively grants both parents joint guardianship and custody unless the High Court believes that the welfare of the child is best served with another arrangement.
The effect of this decision is to place the guardianship and custody of a child whose parents have never been married in much the same position as a child whose parents were married under civil law and who are now divorced.
As the decision concerned a particular child of conflicting parents, both of whom were able to engage legal teams to argue their case before the High Courts and Supreme Courts, it was to some extent limited although it sets a precedent that the other judges must follow.
But this is why the Ministry of Justice, Legal and Parliamentary Affairs, sponsor of the amendment, could perhaps deepen the question and bring in the children whose parents have never been married, or in case of doubt. on the precise legal status of the union, such as when a man married under civil law subsequently enters into an unregistered customary union with a second wife.
Part of the reason for the amendment was to align the Guardianship of Minors Act with the Constitution, which grants women the same rights as men with regard to the custody and guardianship of children, with Parliament enacting the detailed law necessary to apply that law. constitutional clause. The amending bill is the proposed detailed law.
But the recent wave of court cases involving an unmarried child whose parents have never been married and who are not only no longer together but seemingly hate each other shows the need for Parliament to bring in parents and children of all relationships, whether formal, informal or casual.
The judges called to decide the matter in the High Court and the Supreme Court applied a separate section of the Constitution, that dealing with the rights of children, rather than the rights of parents, which the bill deals with.
The Law on Guardianship of Minors and the proposed amendments do this to a very large extent and establish the essential fact that in the event of a dispute, the rights, needs and well-being of the child prevail over the rights. parents.
While the proposed amending law grants equal rights to parents as a standard, it also empowers High Court judges in civil law cases, because a civil marriage exists or has existed, or to magistrates when a customary marriage exists or has existed, issue orders which may give more rights, or even exclusive rights, to a parent if the well-being of the child is better served.
The judge or magistrate can even arbitrate disputes between parents on the same issue if necessary.
There seem to be reasons to apply this sane set of rules to children whose parents have never been married, as well as the default positions if necessary to cope with the practical world.
This is already the case in the law concerning the children of married parents who divorce. Until the legal mess is resolved, the child lives with the mother unless the two agree or until a court renders a different decision.
Even when parents have the same guardianship and custody rights, the child needs a place to live.
For children born out of wedlock, the default rule, just as aptly, is that the mother has custody although with the Supreme Court ruling this can be changed, if it is in the best interests of the child. , and that equal trusteeship applies.
In terms of practical behavior, very few fathers of children born to single mothers care much about their children, and many have to be taken to court to be forced to pay their share of the bills. But there are some who care.
It seems that it should be possible to extend the draft amendment to these children, putting them in the same situation as children whose parents have divorced and who live separately. It is strange that it is very difficult to decide whether civil law or customary law would apply in these cases.
But since the only difference once the proposed amendments are passed is whether a judge or magistrate makes the orders or decisions, the law having to be the same in both systems, this should not be a major problem.
Magistrates’ courts tend to be more accessible, with many more resident magistrates scattered across the country, despite efforts by the High Court to decentralize at least to provincial capitals, than perhaps it could be left. parents decide which court to go to. first. Judicial precedent is an essential part of the law, filling the bare bones of the Constitution and the better-developed body of statutory law, but it tends to constitute a dossier dealing with particular circumstances.
For a more general basis of a law, Parliament is usually a better forum and the rights and duties of parents who have never married but who share a child may well be incorporated into this amending bill.