Court/Judicial body: High Court of Namibia
Date: April 21, 2011 CRC
Provisions: Article 21(b): Adoption
Domestic provisions: Section 3 of the Child Status Act, Act 6 of 2006 Constitution of Namibia, Chapter 3 and Articles 15 and 144
Case summary
Background: N.S., an Indian national, and R.A.H., a German national, married in India. The couple later moved to Namibia, where Ms. S. was seconded for work. The couple adopted a Namibian child while in the country, and Mr. H. was initially the primary care giver for the child. While in the country, Ms. S. filed for divorce, locked Mr. H. out of the family home and became the primary carer of the couple’s child. Ms. S. ‘s employer later closed its office in Namibia, terminating her visa and forcing her to return to India to continue her employment. Mr. H.’s visa would not expire for more than a year, and he had become romantically involved with a Namibian citizen. The Court was asked to rule both on Ms. S.’s request for a divorce and the custody of the couple’s child.
Issue and resolution: Custody. The Court held that the least detrimental choice for the child was to award custody and control to Ms. S., who was allowed to move to India with her child. The Court also granted access rights and contact rights for Mr. H. and the child.
Court reasoning: The Court could not find a previous national case in which a child had had to relocate from his or her country of birth as a result of one parent’s stay in the country coming to an end, so reached its decision based on which of the parents it thought better able to promote and ensure the “physical, moral, emotional and spiritual welfare” of the child. The child’s best interests were treated as of paramount importance, and no preference was given on the basis of the parents’ gender. In deciding that Ms. S. should be awarded custody, the Court took into account that she had been the interim custodian of the child for the past three years, the child was very attached to her, and she seemed to have a support system in India. In considering Ms. S.’s decision to move back to India, the Court noted that relocating would not necessarily be treated as negative and that regardless Ms. S. was required to leave the country. Equally, if Mr. H. had been awarded custody, the Court speculated that he could move to Germany in the future. Noting these circumstances, the Court also discussed Namibia’s lack of a legal framework to consider international adoptions and the importance of passing legislation to implement the CRC and minimise the risks of situations like that between Ms. S. and Mr. H. occurring.
Excerpt citing CRC and other relevant human rights [157] Adoption and the consequences thereof is not a private affair but remains a government responsibility and as such, regardless of the fact that it is not explicitly provided for by statute, authorities must respect the subsidiarity principle as it was enshrined in art 21(b) of the United Nations Convention on the Rights of the Child, which according to Article 144 of the Namibian Constitution has to be considered when interpreting Chapter 3 of the Constitution, pertaining to Fundamental Human Rights and Freedoms, and more in particular Article 15 pertaining to Children’s rights. The effect of the subsidiarity principle is that adoptions by foreigners should be strictly considered as an alternative to adoption by adoptive parents who reside in the child’s country of birth.
CRIN comments: CRIN believes this decision is consistent with the CRC in that the best interests of a child must be a primary consideration in all decisions concerning children. Although the Court’s reference to the CRC’s standards on inter-country adoption is not misplaced, the Court would also have been wise to cite Article 3’s articulation of the best interests principle, Article 9’s provisions on separation from parents, and Article 12’s mandate that children be given an opportunity to be heard in all decisions affecting them.
Citation: Case No.: I 1823/2008
Link to full judgement: http://www.saflii.org/na/cases/NAHC/2010/109.html