Thudinyane v. Edward
Supreme Court of Namibia
12 October 2012
Article 3: Best interests of the child
Article 7: Name and nationality
Article 9: Separation from parents
Constitution: Article 15(1) (children have the right to know and be cared for by their parents, as far as possible), Article 144 (international agreements are binding and form part of Namibian law), and Article 9(3) (States must respect the rights of both parents to maintain a relationship with their child unless it is contrary to the child’s best interests)
A father applied to the High Court for access to his child, who was born out of wedlock. The mother of the child opposed, arguing that the father had been absent for four years and was a stranger to the child, and that the child was now accustomed to her stepfather. The Court ordered that the father be granted visitation rights. The mother appealed on the basis that no enquiry was conducted to determine what was in the child’s best interests.
Issue and Resolution:
Child custody and access; best interests of the child. The Court allowed the appeal and referred the matter to oral hearing of evidence to determine whether access to the child by the father will be in the best interests of the child, and if so the extent to which such access be granted.
The child’s right to know and be cared for by her parents is not absolute, but depends on the best interests of the child, which is paramount in any decision concerning the child. The best interests of the child includes the child’s emotional and psychological well-being. Because the father had not been present in the child’s life for some time, expert evidence was necessary to understand the impact on the child’s psychological and emotional well-being of introducing her to another father figure (in addition to her stepfather). The lower court was unable to properly determine this because it made its ruling on access before hearing such expert evidence. Access should not have been granted to the father until it had been determined after a thorough investigation of all the available evidence whether it would be in the best interests of the child to grant access.
Since the child has grown older, which would affect her level of maturity and her readiness to be introduced to her natural father, new evaluations must be undertaken to determine the child’s current level of intellectual and psychological development and whether access by the father would be in her best interests.
Excerpts citing CRC and other relevant human rights instruments:
 … counsel were requested to prepare supplementary heads of argument on the applicability of the United Nations Convention on the Rights of the Child (the Convention) and Article 15(1) of the Namibian Constitution (the Constitution) to the matter. Counsel for parties were ad idem and submitted as follows regarding the applicability of the Convention to Namibia: Article 63(2)(e) of the Namibian Constitution provides that the power to agree to the ratification or accession to international agreements which have been negotiated and signed by the President of Namibia or his delegate vests in the National Assembly. The Convention was signed by Namibia on 26 September 1990 and ratified on 30 September 1990. Accordingly, and in conformity with Article 1443 of the Namibian Constitution, the Convention became part of Namibian law.
 The best interest of the child is the paramount consideration in any investigation or decision concerning a child directly or indirectly. This is evident from the relevant provisions of the Constitution as well as the Convention. Since parties are in agreement concerning the legal principles governing this appeal, the issue remaining for decision is whether the Court below was correct in deciding the application without hearing the evidence on the issues that it had identified required oral hearing. The determination of the scope and ambit of what is in the best interest of the child in the context of granting access by a parent will undoubtedly be informed by relevant legal principles followed by a factual application of those principles. …
 … in Namibia, international agreements such as the Convention, appear to have similar force of law as accorded to legislation, in the absence of any constitutional provision or Act of Parliament contradicting the law or agreement in question. The Convention refers profoundly to the child’s best interest being paramount in any decision concerning the child. It employs a language similar to that found in Article 15(1) of the Constitution. It says in article 7(1) that the child shall have ‘…as far as possible, the right to know and be cared for by his or her parents’. In terms of article 7(2) of the Convention, State Parties are under obligation to ensure implementation of these rights in accordance with their national law. The provision regarding ‘as far as possible’ the right to know and be cared for by their parents must be read against the preamble of the Convention that, like Article 14(3) of the Constitution, places much emphasis on the family as a unit and the need to afford the necessary protection to its members and particularly children so that it can fully assume its responsibilities within the community. The preamble to the Convention also recognizes ‘… that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’. Article 3(1) of the Convention enjoins State Parties to the Convention to ‘undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and to this end, shall take all appropriate legislative and administrative measures’. It is evident therefore that decisions involving children should be informed by the above constitutional imperatives and the need for Namibia to comply with its international obligations in terms of the Convention.
 … ‘the best interest of the child’ includes the child’s emotional and psychological wellbeing. Neither this Court nor the Court below could determine these without assistance of expert evidence. The Court below therefore erred in not seeing through the directives it had given to hear oral evidence. …
 With regard to other findings by the Court below, I must note that, whilst I agree in principle with the finding that save for the prolonged absence of the respondent there did not appear to be other factors present, at least on the papers, which tended to show that access may not be in the child’s best interest, I am concerned that the Court below did not appear to have considered that there may be a possibility that the child’s emotional and psychological balance may be disturbed by the sudden introduction of another father figure she may no longer have any recollection of. This is an important factor in deciding whether or not access should be ordered at this stage of her development and, if so, how she should be introduced to the notion. It cannot be decided on affidavit and as such the Court below should have taken the matter further by obtaining expert evidence.
 In the view I take of the matter, access should not have been granted until it had been determined after a thorough investigation of all the available evidence whether it would be in the best interest of the child to grant access. …
 I am persuaded that remitting the matter to the High Court for the hearing of evidence will certainly be in the minor child’s best interest in the circumstances of this case and be in line with article 9(3) of the Convention which provides that: ‘States shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interest.’
CRIN believes this decision is consistent with the CRC. The Court correctly applied Article 3 concerning the best interests of the child. Its decision is also consistent with Article 9, which requires the State to ensure that a child shall not be separated from a parent against their will and to respect their right to maintain contact with both parents, except if it is contrary to the best interests of the child. Relevantly, Article 12 requires that a child be provided the opportunity to be heard in any judicial proceedings affecting them and to have that opinion taken into account and given due weight according to their age and maturity.
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.