Editorial Comment: Guardianship Bill will make things clear

Source: Editorial Comment: Guardianship Bill will make things clear | Herald (Opinion)

The Guardianship of Minors Amendment Bill now before Parliament and undergoing the process of public discussion cleans up a lot of loose legal ends as well as making it clear that both parents, regardless of whether they are or were married under civil law or customary law must share guardianship and custody unless a competent court orders otherwise.

This is fine as far as it goes, being as the accompanying memorandum states, to implement the Constitution and make it clear that the same law applies to customary law marriages and divorces as with the civil law position, as well as stressing that this common position must ensure that both parents have equal rights and have to agree.

But the position of a child born out of wedlock is still somewhat in the air, although there is now a fairly firm ruling from the Supreme Court that in effect grants both parents joint guardianship and custody unless the High Court finds the welfare of the child is better served with another arrangement.

That ruling has the effect of placing the guardianship and custody of the child whose parents were never married in roughly the same position as a child whose parents were married under civil law and who are now divorced.

As the ruling was dealing with a particular child of feuding parents, both of whom were able to hire legal teams to argue their cases in the High and Supreme Courts, it was to a degree limited although establishes a precedent that other judges need to follow.

But this is why the Ministry of Justice, Legal and Parliamentary Affairs, the sponsor of the amendment, could perhaps look at the matter further and bring in the children whose parents were never married, or where there is doubt about the precise legal status of the union, such as where a man married under civil law subsequently contracts an unregistered customary union with a second wife.

Part of the reason for the amendment was to bring the Guardianship of Minors Act into line with the Constitution, which grants women the same rights as men when it comes to the custody and guardianship of children, with Parliament making the necessary detailed law to apply this constitutional clause. The amendment Bill is the proposed detailed law.

But the recent spate of court cases revolving around a single child whose parents were never married and who are now not only no longer together, but who appear to abhor each other shows the need for Parliament to bring in parents and children of all relationships, whether formal, informal or casual.

The judges asked to adjudicate the issue in both the High Court and the Supreme Court were applying a separate section of the Constitution, the one dealing with rights of children, rather than just the rights of parents, which the Bill addresses.

The Guardianship of Minors Act and the proposed amendments do this to a very large extent, and establish the critical fact that where there is dispute, the rights, needs and welfare of the child trump the rights of parents. 

While the proposed amendment law grants equal rights to parents as the norm, it also gives power to High Court judges in the cases falling under civil law, because a civil marriage exists or once existed, or to magistrates where a customary marriage exists or existed, to make orders that can give more rights, or even sole rights, to one parent if the welfare of the child is better served.

The judge or the magistrate can even referee disputes between parents on a single issue if necessary.

There seems to be grounds to apply this set of sensible rules to children whose parents were never married, along with the default positions where necessary to cope with the practical world.

This is already the position in the law regarding children of married parents who get divorced. Until the legal mess is sorted out the child lives with the mother unless both agree or until a court makes a different ruling. 

Even when parents have equal guardianship and custody rights, the child needs somewhere to live.

For children born out of wedlock the default, just as sensibly, is that the mother has custody although with the Supreme Court judgment this can be altered, if that is in the interests of the child, and the equal guardianship applies. 

As a matter of practical behaviour, very few fathers of child born to a single mother take much interest in their children and many have to be hauled into court to be made to even pay their share of the bills. But there are some who care.

It seems that it should be possible to extend the amendment Bill to include these children, putting them in the same position as children whose parents have divorced are who are living apart. There is the oddity that it would be very difficult to decide whether civil law or customary law would apply in these cases. 

But as the only difference once the proposed amendments go through is whether a judge or magistrate makes the orders or decisions, the law to be the same under both systems, this need not be a major problem. 

Magistrate courts tend to be more accessible, with far more resident magistrates scattered across the country, despite the efforts of the High Court to decentralise at least as far as provincial capitals, that perhaps it could be left to the parents to decide which court to approach first. Judicial precedent is a vital component in law, fleshing out the bare bones of the Constitution and the better fleshed corpus of statute law, but it tends to built a case at time 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 never married, but who share a child could well be incorporated into this amendment Bill.

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