Court/Judicial body: High Court of Swaziland
Date: February 1, 2008 CRC
Provisions: General reference to the CRC
Other international provisions: Children’s Act 38/2005 of South Africa
Domestic provisions: Constitution Act 2001 (Sections 29(4), 29(7) and 31)
Case summary
Background: The biological father of a child born out of wedlock sought guardianship and custody of his child along with an order preventing the biological mother of the child, with whom he had once had a long-standing relationship, from relocating the child out of the country. The father contended that he had full parental rights, including the right to refuse the child’s relocation outside the country, because the Constitution abolished the illegitimacy of persons born out of wedlock and now provides that children, whether born in or out of wedlock, shall enjoy the same protection and rights.
Issue and resolution: Child custody; children born out of wedlock. The Court found that although the child would now be considered a legitimate son of his father, this did not give the father the right to custody or to prevent the child from leaving the country.
Court reasoning: The Court held that the protection and rights of children born out of wedlock are found in statutes, adopted international conventions and the common law, and that it is the domain of Parliament to bring these together and enact laws to ensure children’s rights as well as the domestication of the Convention on the Rights of the Child. Because Parliament had not elaborated on what the legitimate status of children born out of wedlock would mean for their relationships with individual parents, the Court did not see that any new rights had been granted to unmarried parents of these children. Looking further into the best interests of the child in this particular case, the Court noted the mother’s exemplary track record and saw no reason to prevent her from moving out of the country with the child.
Excerpt citing CRC and other relevant human rights [8] What are the “protections and rights” referred to in section 29 (4). It seems to me that these “protections and rights” are found in various scattered pieces of legislation such as statutes and International conventions on the rights of the child that Swaziland is a signatory too. These are also found in the common law. It is these “pieces” of law that have to be brought together and enacted under section 29 (7) of the Constitution which specifically provides for the enactment of laws by Parliament to ensure children’s’ rights as well as the domestication of the Convention on the Rights of the Child.
CRIN comments: CRIN believes this case is inconsistent with the CRC in that the Court failed to examine the matter from the child’s perspective or to account for children’s right to maintain relationships with both of their parents under Article 9 of the Convention. While the Constitutional change recognising the legitimacy of children born out of wedlock was in no doubt positive, it is disappointing that the Court failed to infer from this a greater respect for children’s relationships with both of their parents, whether married or not. The Court’s decision may ultimately have been in the best interests of this particular child, but it seems in no way to have advanced children’s rights in custody proceedings in line with the CRC.
Citation: 2008 SZHC 11
Link to full judgement: http://www.swazilii.org/sz/judgment/high-court/2008/11