Court/Judicial body: High Court of Botswana (the “High Court”)
Date: October 6, 2008 CRC
Provisions: Article 3: Best interests of the child
Other international provisions: African Charter on the Rights and Welfare of the Child (ACRWC)
Domestic provisions: Constitution of Botswana (Sections 3 and 15: Human rights and prohibition against discrimination)
Case summary
Background: Mr. Ndlovu, the father of a minor child born out of wedlock, sued the child’s mother to force her to allow him to have contact with the child.
Issue and resolution: Child custody and parent-child contact. The High Court ordered that Mr. Ndlovu be able to have contact with his child, ruling that questions of parental custody and parent-child contact should be decided by applying “the best interests of the child” standard.
Court reasoning: The High Court rejected the common law principal that the father of a child born out of wedlock has no legal parental relationship or authority over that child, and thus, no right to have contact with the child. Rather, the Court concluded that not only does a non-custodial parent have the right to have contact with his or her child, a child has the right to have contact with both parents. In so doing, the High Court considered Botswana’s international obligations, including the CRC, and noted the strong persuasive value of international human rights treaties even where they have not been directly incorporated into domestic law. Accordingly, the High Court held that the standard to be applied in cases concerning contact with children, whether their parents are married or not, is that of the best interest of the child. The High Court also found that the common law rule discriminated between parents of a child on the grounds of sex or marital status in violation of the country’s Constitution.
Excerpt citing CRC and other relevant human rights 17. In the case of Modisenyane v Modisenyane 2006 (2) BLR 65 Chinhengo J approved the central test alluded to above being that of the best interest of the child in the following terms: “A child has a right to have access or to be spared access and so access is granted or denied depending on where the best interests of the child lie. Access is a two-way process. In one sense it is a right granted in the interest of the non-custodian parent and in another and more decisive sense, it is a right granted in the best interest of the child -see V v V 1998 (4) SA 169 (C) at page 189 C-E where it was said that the child’s right to have access is complimented by the parent’s right to have access to the child”. … 20. The standard of the best interests of the child is in accord with several international and regional instruments, which Botswana as a member of civilized community of nations subscribes to. (See 1998 UN Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of The Child (ACRWC)) 21. The United Nations Convention on the Rights of the Child was ratified by the Botswana Government in March 1995. Article 3(1) of the said convention provides that: “In all actions concerning the welfare of the children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 22. It is indisputable that the provisions of an international treaty such as the UN Convention on the Rights of the Child, of which Botswana is a party, do not form part of Botswana law, unless parliament elects to incorporate its provisions into our domestic law by legislation. But the fact that the Convention has not been incorporated into national law, as is the case with the UN Convention on the Rights of the Child, does not mean that its ratification holds no significance for Botswana law, for its provisions have strong persuasive value on the decisions of this Court. … 25. It is time that access to a child born out of wedlock by his father be solidly located where it belongs: as a right belonging primarily to the child.
Follow up: On January 30, 2009, the Court of Appeal for the Republic of Botswana affirmed the High Court’s decision on this issue, holding: “It should therefore now be regarded as settled law in this country that the primary standard to be applied in all questions of guardianship of or access to children, whether their parents are married or unmarried, is that of the best interest of the child.” (See, Macheme v. Ndlovu, (CACLB 035/08) [2009] BWCA 49 (30 January 2009), available at http://www.saflii.org/bw/cases/BWCA/2009/49.html).
Notes: For a discussion of the rights of biological fathers with regard to children born out of wedlock, see E.K. Quansah, Some Contemporary Challenges Facing Family Law in Botswana, University of Botswana Law Journal, Volume 9 (June 2009), p. 25 at 44, or see generally E.B. Macharia-Mokobi, Recent Legal Developments – Botswana, University of Botswana Law Journal, Volume 9 (June 2009), p. 123 at 128, both available at http://www.pulp.up.ac.za/pdf/2009_12/2009_12.pdf.
CRIN comments: CRIN believes that this decision is consistent with the CRC in that the best interests of the child must the guiding principle in all actions and proceedings concerning children. In the spirit of Article 9 of the CRC, which states that children have a right to maintain contact with both of their parents on a regular basis where it is not contrary to their best interests, the Court also describes the right to parent-child contact as an important right of the child and not just the parent. It is unclear why Article 9 is not cited directly in the decision, but the Court does appear to uphold the provision nonetheless.
Citation: Ndlovu v. Macheme, (MAHLB-000522-07) [2008] BWHC 293 (6 October 2008). Link to Full Judgment: http://www.saflii.org/bw/cases/BWHC/2008/293.html