A critical analysis of the effects of joint custody & equal guardianship as proposed in the children's status bill, on the rights of the child

Abstract

Absract provided by author:

The Children's Status Bill was proposed to uplift the status of children, in particular the status of children born outside of marriage. Its main objective is "to promote and protect the interests of the child"1 However the Proposed Bill was rejected in Parliament, one of the reasons being, the provisions on automatic joint custody and equal guardianship concerning children born out of wedlock

This paper proposes to examine these provisions in light of the current socio-economic factors within Namibia. The various arguments and viewpoints expressed by the different parties responsible for bringing about of the Children's Status Bill will be critically discussed and debated. The main focus of this research will be whether automatic joint custody and equal guardianship is in the best interests2 of the child. These interests form the overriding principle, which the judiciary uses in determining custody and guardianship cases concerning illegitimate children

In applying the best interests of the child criterion to the proposed provisions on custody and guardianship, this paper concludes that it would not be in the best interests of the child if automatic joint custody and equal guardianship is granted to fathers of illegitimate children, for the reasons of practicality, security and stability purposes. Further more that the biological bond between a father and his child would not per say mean that granting joint custody and equal guardianship will be in the best interests of the child.