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CHILD MAINTENANCE AND SUPPORT OBLIGATIONS - FAMILY LAW

family law , law

Introduction

The Tanzania Child Development Policy (2008) has identified five basic rights of the child. These are: i) the child’s right to life; ii) the right to develop; iii) the right to protection; iv) the right to participation; and v) the right not to be discriminated against. There is no doubt that child support obligations touch all the five rights.  There is also an underlying assumption that these five basic rights are best enjoyed within the family environment and, as noted in lecture ten, the child’s parents are legally obliged to ensure that the child enjoys those rights. This chapter discusses the legal provisions relating to the duty to maintain and support the child.

Child Maintenance During Marriage

Section 8 LCA states that it shall be the duty of a parent, guardian or any other person having custody of a child to maintain that child. The duty to maintain a child includes the duty to provide food, shelter, clothing, medical care (including immunization), education and guidance, liberty and the right to play and leisure. Much of this has been discussed in lecture ten as part of parental responsibility. It should be noted that child maintenance obligation is normally unproblematic when parents are living together under one roof. Problems arise when parents divorce and the court has to decide who has to have custody of the minor children and who is to provide maintenance for them. Where the husband neglects the family while remaining married to his wife, section 63 LMA requires such a husband to provide maintenance to his wife and his children under s129 LMA. The court has power to order the father to maintain his children under s 130 LMA.

 Child Maintenance on Separation or Divorce

The duty to provide child maintenance when parents separate or divorce is narrower than that envisaged above under section 8 LCA. Section 129 LMA expresses this duty   accurately. It states that it shall be the duty of a man to maintain his infant children, whether they are in his custody or the custody of any other person. This duty requires that the man provide accommodation, clothing, food and education, or their cost, as may be reasonable having regard to his means and station in life. The woman is also required under s 129(2) LMA to maintain or contribute to the maintenance of her infant children if their father is dead or his whereabouts are unknown, or if and so far as he is unable to maintain them. In this regard, the court is empowered under s 130(1) to order a man to pay maintenance for the benefit of his infant child. The court may also order a woman to maintain or contribute to the maintenance of her infant child or children where it is reasonable to make such an order having regard to the woman’s means. It must be stressed here that although the primary duty to maintain a child is placed upon the man, the mother is also expected to contribute to the child’s maintenance or to assume full responsibility where the father is not able to provide such maintenance due to various circumstances. It must be stressed that under section 46 LCA, the person entitled to receive and administer child maintenance is the person who has legal custody of the child.

 Child Maintenance by Unmarried Parent

It was noted in Lecture Ten that an unmarried father may apply to a court of law to be declared a father of a child under s 34(1)(b)LAC. Where the court makes an order of parentage in line with the above cited provisions, a man    in respect of whom such an order has been made, shall be under a duty to contribute towards the welfare and maintenance of the child as if the child had been born during wedlock (s41 LCA).

Where no proceedings have been taken out to determine the father of a non-marital child, the court may still make a maintenance order against an alleged biological father on the application of the expectant mother at any time before or after the birth of the child. The court may also require an alleged biological father to pay maintenance for the child if there is evidence that the alleged biological father had within the last twenty four months after the birth of the child paid maintenance for that child.

 It is further provided that, in the case of the alleged biological father, the court shall refuse to grant a maintenance order against him unless it is satisfied first, that there is reasonable cause to believe that the man alleged to be the father of the child “is in truth and in fact the father of that child” and that the application for a maintenance order is made in good faith and not for any purpose of intimidation and extortion. And second, the court must be satisfied that the man alleged to be the father has been requested by or on behalf of the applicant to provide maintenance for the child and he has refused or neglected to provide such maintenance or has made inadequate provision (s 43(2) LCA).

Considerations when Making Maintenance Orders

In making the maintenance order, the court shall have regard to the income and wealth of both parents or of the person legally liable to maintain the child, including his financial responsibility with respect to the maintenance of other children.[1] The court shall also consider the cost of living in the area where the child lives and any impairment of the earning capacity of the maintenance payer (s 44 LCA). The court shall also consider the rights of the child stipulated in Part II of the LCA (ss 4-14 LCA) [See Lecture Nine]. It is also provided under s 45(1) LCA and s 136 LMA that before making a maintenance order the court may request a social welfare officer to prepare a social investigation report to assist in the determination of the award. It must be stressed though that s 136 LMA empowers the court also to seek the advice of a person who is trained or experienced in child welfare but shall not be bound to follow advice.

 But where the court chooses to order a social investigation report under s 45(1) LCA and the report is produced, the court is bound to consider such report before making a maintenance order. Nonetheless, after considering such report the court still has discretion to follow or not to follow the recommendations contained in that report. 

Duration, Enforcement, Variation and Discharge of Maintenance Orders

Subject to express orders by the court, an order for maintenance expires when the beneficiary child attains the age of 18 years (s 47 LCA and s132 LMA). Maintenance may however continue to be paid, despite the child attaining majority age, where that child is engaged in a course of continuing education or training. Application to extend maintenance beyond majority age may be brought either by a parent who has custody of the child; a person who has custody of the child or the child himself or herself. An action may be brought to the court by an interested person, to enforce an order of maintenance within forty five days after the order is made or is due. (Note that s 48(3) LCA speaks of any person, but surely he/she must have an interest in the matter; see s 133 LMA speaks of interested person).

Where the court makes an order for maintenance of a child or children, it may also order the person liable to secure such maintenance in whole or any part of it by vesting any property in trustees upon trust to pay such maintenance out of the income from such property. Every maintenance order made by a court shall be enforceable in respect of any maintenance accrued under such order in the same manner as decree for the payment of money passed by that court and the provisions of the Civil Procedure Code relating to the enforcement and execution of decrees for payment of money shall apply mutatis mutandis to the enforcement of an order for maintenance (s124 (4)LMA).
Variation or discharge of maintenance orders can be made by the court at any time and from time to time on an application by the person having custody of the child or any other person legally liable to maintain the child (s49 LCA). The court may vary or rescind an order for maintenance if it is satisfied that the said order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances of the parties (s 133LMA). The court may also vary from time to time a maintenance agreement made between the parties (s134LMA).
Where the court makes an order for maintenance of a child or children, it may also order the person liable to secure such maintenance in whole or any part of it by vesting any property in trustees upon trust to pay such maintenance out of the income from such property.


Summary and Conclusion

This lecture has discussed child maintenance obligations during marriage and upon separation or divorce. We have also examined the maintenance of a child born to parents who are not married to one another. The factors to be considered by the court when ordering maintenance have been examined. Duration of maintenance orders, their enforcement, variation and discharge have been considered briefly. What requires stressing here is that the statutory duty to maintain a child remains largely upon male shoulders and only exceptionally upon mothers. This may appear to be a natural division of labour in a society where men are predominantly in paid employment while women are home makers. But this approach of the law appears to define child maintenance more narrowly to mean merely the supply of money with which to purchase the child’s needs from the market. But in societies where the child’s needs are obtained from farming and livestock, it is clear that women shoulder, at least an equal, if not a greater maintenance burden. Moreover, if the definitions of child maintenance under s 8 LCA and s 129LMA are to be read to include day to day child care, then again mothers do shoulder the greater burden of child maintenance than men. The next lecture examines child care outside the traditional family.

[1]See Festina Kibutu v Mbaya Ngajimba 1985 TLR 44 (HC)

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CHILD CUSTODY ON FAMILY BREAK DOWN - FAMILY LAW

family law , law

 CHILD CUSTODY ON FAMILY BREAK DOWN

 Introduction
The question of who shall have responsibility for the care and upbringing of a child arises normally at the time parents wish to live apart and have not made suitable arrangements for the long term care of their child or children. It is in that context that a court of law is invited to intervene to allocate responsibility for the care and upbringing of the affected child or children. This Lecture examines the principles applicable in the determination of who shall have responsibility for the care and upbringing of a child when the family breaks down.


Applicable Principles
It is widely accepted that the family is “the natural environment for the growth and well-being of all its members and particularly children”[1]  Hence, when unfortunately, parents divorce it becomes necessary to determine who of the two parents will reside with the child and provide a home for that child while the other parent continues to discharge his or her parental responsibility as determined by the court applying the principle of best interests of the child.[2]Unless there are reasons to the contrary, the court will normally place custody of the child with one parent and allow the other access to the child at predetermined intervals. The court will also make maintenance orders requiring the non-custodian parent to provide periodic maintenance to the child including other necessaries of life depending upon the age and needs of the child.
Where there are exceptional circumstances making it undesirable to entrust a child with any of the two parents, the court may order that the child be placed under the care of a relative or an institution responsible for children.[3]In all cases involving the determination of a child’s future upbringing the court must apply the best interest standard.

Best Interest of the Child Principle

Section 125 (2) LMA states that in deciding in whose custody an infant should be placed, “the paramount consideration shall be the welfare of the infant.” The terms “welfare of the infant” and “best interest of the child” have the same meaning and are often used interchangeably[4]. However, the modern and more widely used term is the best interest of the child. In J v C,[5] a leading case on the meaning of best interest principle as a paramount consideration, Lord McDermott stated that the paramountcy principle connotes:

“a  process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances        are taken into account and weighed, the course to be followed will      be that which is most in the interests of the child’s welfare as that term is now to be understood. That is the first consideration     because of its first importance and the paramount consideration because it rules upon or determines the course to be followed.”

Hence, as noted by Bromley and Lowe, in decisions affecting the child the court’s sole concern is the child’s welfare and other factors “are relevant only to the extent that they can assist the court in ascertaining the best solution for the child.”[6]  How does the principle of best interests apply in practice? Consider for example a case of child abduction by parents. Where the child after abduction has lived for a long time with the abductor parent and has become settled in that home environment, the court will not place much weight on the wrong committed by the abducting parent. Rather, it will give priority and place emphasis on the harm that the child would suffer if separated from the abductor parent. If there are no other factors to contradict the best interests principle (except for the fact of abduction), the court will not remove the child from the abductor. In other words, court will not seek to address the wrong committed by one parent against the other. Rather, it will make a decision which is in the best interest of the child.

It must be stressed however, that the best interest of the child has at least two levels of emphasis, that is, the strong and the weak version. The weak version states as provided, for example, in Art 3 CRC that “the best interest of the child shall be a primary consideration.” The use of the indefinite article “a” shows that the decision-maker has to put into consideration not only the best interest of the child but also other factors in order to arrive at a decision affecting the child’s interests. For example number of considerations including the wishes, in child adoption, the court is expected to take into account the views  and wishes of the biological parent before it makes an adoption order. 

 Indeterminacy of the Best Interest

Apart from the strong and weaker version of this principle, the best interest is widely known to be indeterminate and difficult to apply in practice. There are many reasons for this. First, decisions that seek to promote the best interest of the child will depend on the context or a matter before the court. As noted above, in child adoption cases, the court will not order adoption where the parents are opposed to it. It is a different case if the court is to determine which of the two parents should have custody of that child. The application of best interest also depends on the time and the society’s scientific understanding of what actually promotes the child’s best interest. Hence, social, economic and scientific change will inevitably affect the court’s perception and decision as to what is in the best interest of the child. Cultural and religious factors have also an influence on the decisions we make about what will promote the child’s best interests. In order to reduce the uncertainty in the application of this principle, the English Children Act 1989 included a checklist, as noted below, to assist the court in applying the principle.

Best Interests Check-List

The best interest checklist simply means a further elaboration of the best interest principle to provide guidance to the court in the application of this important guideline. Six of the most widely accepted items in the checklist include the following:

i)   Custody of a young child must be with the mother unless there are contrary indications; (ss 26(2), 39 (1) LCA and s125(3)LMA)[7]
ii)    The views of an older child must always be sought and seriously considered before a decision is made affecting the interests of that child, taking into consideration the child’s age and understanding; (s 39(2)(d)LCA, s125(2)(b)LMA)[8]
iii)  Siblings should not be separated unless there are compelling circumstances. (s39(2)(e)LCA, s 125(4)LMA)[9]
iv)   Delay in resolving matters affecting a child is likely to be detrimental to the child; (s 2;  First Schedule; Guiding Principles; Uganda Children Statute, 1996)
v)     Removing a child from a familiar environment where he or she has become settled is likely to be detrimental to that child best interest (ss 26(2), 39(2)(f) LCA and s125(3) LMA.
vi)    In making a decision affecting a child or children, the court or any decision maker must consider each child individually, the age and gender of the child; and further consider the effect of that decision on that particular child (s39(2)(b)LCA and s125(4)LMA.

The best interest checklist was first included in the English Children Act 1989. Section 1 of the Act states, that when a court determines any question with respect to the upbringing of the child or the administration of the child’s property, or the application of any income arising from such property, “the child’s welfare shall be the court’s paramount consideration.” The foregoing provision limits the application of the best interest principle to specific matters stated in the Act.

Since the 1990s the best interest principle has become adopted by certain jurisdictions as a general principle of law to be applied in the interpretation and application child-specific legislation. A good example is the Uganda Children Statute of 1996  and the South Africa Children Act  As a general principle of the whole Act it requires courts to apply this principle in the interpretation and application of the entire legislation and in all decisions affecting children. The inspiration for a wider application of the best interest principle comes from Art 3 of the UN CRC and Art 4 of the OAU Charter on the Rights and Welfare of the African Child (1990). The broadening of the best interest standard to apply to all child related decisions in certain jurisdictions is a direct consequence of the best interest acquiring an international status as a principle of children’s rights law (Philip Alston et all).

The Law of the Child Act 2009 contain a checklist under s39 which is combined with the rights of the child under s 26 LCA. The LCA also adopts the best interest principle as a general guideline of the Act.  Section 4 LCA states that “the best interests of the child shall be the primary consideration in all actions concerning a child whether undertaken by public or private social welfare institutions, courts or administrative bodies. This is a clear domestication of Article 3 of the CRC even though the implications of this measure are yet to be fully explored. On its face, section 4 LCA requires that the best interest of the child principle should guide all decisions affecting children whether made by public bodies such as the courts in the application of any legislation including the LCA, or by private social welfare institutions and other bodies whose decisions affect children. Yet it remains to be seen whether s 4 LCA applies to the whole LCA and whether the section goes beyond the LAC to apply to all decisions affecting the child made elsewhere and in other contexts in the private and public spheres.

There are additional guidelines which appear in the LCA in the form of rights of the child. For example, s 7 LCA provides that a child shall be entitled to live with his or her parents or guardians. There are also occasional references to the principle, for example, under s 26 concerning care and upbringing of a child when parents separate or divorce. There is also reference to provisions of the Law of Marriage Act relating to the power of the court to make custody orders under ss 125-137. In sum, the Law of the Child Act 2009 has adopted the best interest principle as a general principle under s 4 and also as a guideline to the application of certain provisions of the LCA and possibly other legislation.

Child Custody on Divorce: Application of Best Interest

Section 26 LCA directs that the provisions of the Law of Marriage Act governing child custody shall apply in all cases where the child’s parents become separated or divorced. In addition to that s 26 LCA makes further provisions that a child shall have a right to reside with a parent who, “in the opinion of the court, is capable of raising and maintaining the child in the best interest of the child.” The child also shall have a right “to visit and stay with the other parent whenever he [or she] desires, unless such arrangement interferes with [the child’s] school or training programme” (s 26(1)(c). But as noted above, the substantive provisions governing child custody and access are to be found under s 125-137 of the Law of Marriage Act. It is to these sections that the discussion turns.

One point to bear in mind is that in theory parents are free to look after their children as they consider fit without any interference by the state. But there are points of departure when the law takes over as super parent and tells parents how to care for their children. This happens in cases where, during marriage, one of the parents, e.g. the mother, invites the court to enter the family unit to resolve a dispute between her and the father over their child. Such an occasion is anticipated under s 125 LMA where the court may, at any time, by order, place an infant in the custody of any of the child’s parent, a relative, or a child welfare organization.

The state may also intervene where parents separate or divorce and the court has to determine who has to have the care of the infant children. According to s 127(1) LMA court may make such an order when granting a decree of separation or divorce or at any time thereafter, on the application of the father or mother of the infant of the marriage (see s 127LMA). When the court intervenes to decide which one of the two parents should have custody of the child, it applies the best interest standard as the paramount consideration (see s 125(2) LMA).  But where parents wishing to separate or divorce have made arrangements or proposals regarding the maintenance and custody of their children, the court is required to evaluate these arrangements and to approve them if they are in the best interests of the infant children of the marriage[10]

While the best interest principle remains paramount, the court is also required to have regard to the wishes of the parents, the wishes of the child where such a child is of an age to express an independent opinion. [11]The court must also have regard to “the customs of the community to which the parties belong.” (s25(2)(c) LMA). Where the child in question is below the age of seven year there is a rebuttable presumption that it is in the interest of that child to be with the mother. However, the presumption may be rebutted where changing custody will lead to the unsettling of the child by moving him or her to a new environment. In cases where the determination of custody involves more than one child, the court shall not be bound to place both or all the children with the same parent. Rather, the court shall consider the welfare of each child independently and decide who shall have custody of that child.

The person who has custody of a child has the power to decide all questions relating to the upbringing and education of the child subject to any conditions that the court may consider appropriate to impose. These conditions may relate to the place where the child is to reside, the manner of the child’s education and the religion in which the child is to be brought up. The court may also order that the child be permitted to visit the other parent at specific intervals and for such periods as the court may consider reasonable. Where applicable the court may make orders that the child be permitted to visit the family of a parent who is dead in order to maintain ties with the child’s extended family. In appropriate cases the court may “prohibit the person given custody from taking the infant outside the United Republic of Tanzania.” This condition is relevant where the child’s parents belong to different nationalities and there is concern that the custodial parent may take the child out of Tanzania thus depriving the non-custodial parent regular access to the child.(note that Tz is  not party to the Hague Convention on Child Abduction. Placing such a condition is not enough to stop a determined parent)

Summary and Conclusion

This lecture has discussed the importance of the best interest standard and its relevance as a guide in the decision making process involving the upbringing of children in the context of family breakdown. The chapter has noted that historically the principle of best interest first emerged as a principle of family law and was applied by courts when determining the upbringing of a child and the administration of the child’s property. In later years, especially after 1990, the best interest principle emerged as a rule of international children’s rights law with a much wider application.  Despite its growth in popularity, the best interest principle is also acknowledged to be vague and difficult to apply. The emergency of the best interest checklist in some jurisdictions was intended to reduce its indeterminacy and to assist courts and other decision makers in arriving at decisions that promote the best interest of the child.

The principle of best interest of the child is contained in the Law of the Child Act 2009 and the Law of Marriage Act 1971. The LMA views the best interest as principle of domestic law while the LCA broadens the application of the principle to cover all matters involving children, both in the context of family law and beyond. The LCA has therefore successfully domesticated the best interest principle as a rule of international children’s rights law. What remains is for the courts and administrative bodies to mainstream this principle in their decision making processes involving children.     



Bibliography

Leticia V K Rweyemamu (2006)  Judicial Implementation of the Principle of Best Interests of the Child in matters relating to custody: A Case study of Court Decisions from Ilala District, Dar es Salaam, Tanzania, LLM Dissertation in Women’s Law; Southern and Eastern African Regional Centre for Women’s Law (SEARCWL) University of Zimbabwe, Harare, Zimbabwe.



[1] Preamble to the United Nations Convention on the Rights of the Child (1989)
[2] See section 125 Law of Marriage Act [Cap 29 R. E .2002). See also Jerome Joseph v Ester Jerome  ( DSM High Court Civ App No 7 of 2009) where Muruke J  also relies on Art 3 of the UN Convention on the Rights of the Child (CRC), noting that  Art 3 of  CRC  is also relevant and applicable given that Tanzania ratified the Convention  in 1991 and is a party to this treaty.
[3] See Chapter 13 on alternative care for the child.
[4] See s 4(2), 26(2) and 37(4) LCA. See also Articles 3(1)  and 21; UN Convention on the Rights of the Child (1989). But also see s 1(1) of the English Children Act 1989 which speaks of “the child’s welfare shall be the court’s paramount consideration.” See also s 39(1) LCA which speaks of “best interest of the child..”
[5] [1970] AC 668, 710-711, [1969] 1 All E R 788, 820-821, HL
[6]   P M  Bromley and NV Lowe , Bromley’s Family Law, 8thEd (1992) p 336. See also Ramesh Rajput v Mrs Sunanda Rajput 1988 TLR 96 (CA) where the Court of Appeal stressed that “the most important factor in custody proceedings is the welfare of the child.”
[7] See Ramesh Rajput v Mrs Sunanda Rajput 1988 TLR 96 (CA)
[8]See Mariam Tumbo v Harold Tumbo 1983 TLR 293 (HC) where Lugakingira J held that “in matters of custody the welfare of the infant is of paramount consideration, but where the infant is of an age to express an independent opinion the court is obliged to have regard to his or her wishes”.
[9] See Jerome Joseph v Ester Jerome (DSM High Court Matrimonial Civ Appeal No 7 of 2009) per Muruke J where this principle was applied.
[10] See  s 108 (c) LMA
[11]See Monica Kasmiri v Tafuteni Shabani Moris DSM High Court Civil Appeal No 79 of 2008 per Wambura J where the  judge noted before deciding custody of older children the court ought to call them and seek their views as to which parent they prefer to live with and give reasons why.

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Acquisition of Parental Responsibility To the child - Family law

family law , law

 Introduction: The Origins of the Concept

The term parental responsibility was first used in the English Children Act of 1989. As a concept, it replaced the term parental rights and duties, (or parental powers and duties) that was previously being used to describe the obligations and powers of parents. The change in the terminology from parental rights and powers to parental responsibility was intended first, to emphasize the point that the duty to care for a child and to raise him or her to high moral, physical and emotional health was a fundamental task of parenthood, and second, that the only justification for the authority conferred on a parent was to enable him or her to discharge parental responsibility properly.[1]As noted by Professor Brenda Hogget (as she then was), the use of the term parental responsibility was used in the Children Act to “emphasize the practical reality that bringing up children is a serious responsibility, rather than a matter of legal rights.”[2]It is with this background in mind that we must approach the meaning of the term “parental responsibility” and its application under the Tanzania Parent and Child Act 2009.

 Parental Responsibility: Content and Application

Section 9 LCA has a marginal note titled: “parental duty and responsibility”. The note encapsulates the essence of the whole section. Section 9(3) LCA states that “every parent shall have duties and responsibilities whether imposed by law or otherwise towards the child”. Section 9(4) specifically refers to the term “parental responsibility”, noting that where the biological parents of a child are deceased, “parental responsibility” may be passed on to a third party. The use of the term duties and responsibilities also suggests that the term parental responsibility has been largely adopted by the LCA as appropriate to describe a bundle of rights, powers and responsibilities that a parent has in relation to the child.[3]What remains now is to consider the specific contents of the concept of parental responsibility.

Having examined the contents of Part II of the LCA, it appears that both sections 8 and 9 of the LCA express much of what is contained in the concept of parental responsibility. [4]Section 8 deals largely with the duty of a parent to maintain a child and makes additional special provisions for a disabled child under 8(5) and 8(6). Section 9(3) states that every parent has duties and responsibility towards his or her child, in particular, to protect the child from neglect, discrimination, violence, abuse, exposure to physical and moral hazards and oppression. Furthermore, a parent has the duty to provide guidance; care; assistance and to assure the child of survival and development.
Although the provisions of the LCA, as noted above, contain a comprehensive list of parental responsibilities, there are specific provisions that are missing from the list. Some of these are found in other pieces of legislation such as the Law of Marriage Act 1971. There are, for example, no provisions in the LAC regarding the responsibility of the parent to administer a child’s property; to represent a child in legal proceedings; to agree to the change of a child’s surname; to determine the child’s religious education; to consent to or veto the taking of a child out of Tanzania by the other parent or third party; to consent to or veto the issue of a passport to a child; to consent to the child’s medical treatment; and, in the case of the child‘s death, to have the responsibility to bury or cremate his or her remains. 

No doubt there are administrative rules enabling a parent to perform some of the above acts or to have relevant powers even though this is not specifically contained in the LCA.[5] The authors of Bromley’s Family Law, after noting that there was no agreed list of parental responsibilities have nonetheless suggested 16 items as encapsulating the content of parental responsibilities. Some of these derived from common law while others are extracted from existing statutory provisions.[6]
In sum Tanzania, perhaps like many other jurisdictions, has now adopted the use of the term parental responsibility to express the obligations of parents and to stress the gravity of the task of parenting. Moreover, parental responsibility also is under pinned by the principle that any rights vested by law upon the parents are so vested to enable the parent to perform his or her responsibilities to the child and not for the benefit of the parent.

Who has Parental Responsibility?

Section 3 LAC defines a parent as a biological father or mother, the adoptive father or mother, and any other person under whose care a child has been committed. This definition covers three categories of parents. The first refers to natural parents; the second relates adoptive parents; and the last includes a wide range of individuals and institutions who have been entrusted with the care of a child.
The first category, as we have noted under section 35 LAC, concerns a person who believes he or she is the parent of a child and is entitled to apply to be declared a parent of a given child. Under normal circumstances parents do not need to apply under section 35 to be declared parents. Such applications are ordinarily reserved for persons whose status as parents is doubtful or is being challenged by a third party. Indeed, section 35 is intended to replace the Affiliation Ordinance by providing the means for unmarried parents to seek a declaration of parentage.
The second category relates to adoptive parents covered by Part VI of the LCA (ss 55-76). Section 64(b) states that the legal effect of an adoption order is to vest in the adoptive parent assumes all parental responsibility in relation to the adopted child “as if the child was born to the adoptive parent in lawful wedlock and was not the child of any other person. And where the adoptive order is made jointly to a husband and wife, “they shall assume the parental responsibilities jointly and the child shall relate to them as parents, as if born naturally by them as husband and wife.” The law and procedures governing child adoption is considered in Lecture Twelve.

The third category relates to natural persons and institution. The LCA states that the patron of an approved residential home or manager of an institution, or the foster parents with whom the child is placed[7]“shall have parental responsibility for the child while the child is with him or with the institution.” Section 138 LCA also states that while the child is in an approved residential home or institution, the staff of the home or institution “shall assume parental responsibilities for the child and ensure that the rights of the child under this Act are protected.” And such parental responsibility shall also include “an application to a court to protect the best interest of the child where it becomes necessary.”[8]

In the context of the child who is in conflict with the law, the court may order a child to be remanded in the custody of the Commissioner for Social Welfare, a fit person,[9] or an institution named in the order. These three are also vested with parental responsibility in respect of the child in question. There is another category of persons who may be vested with parental responsibility as provided under section 9(4) LCA. Section 9(4) LCA states that responsibility for a child whose both parents are deceased may be passed on to a relative of either parent or a custodian by way of court order or any traditional arrangement.[10]The term custodian is not defined in the LAC. Also unclear is the legal provisions under which the court is authorised to pass on parental responsibility to a relative or custodian.

Acquisition of Parental Responsibility by Unmarried Parents

Parental responsibility in respect of a child born to unmarried parents may be acquired either by agreement between the parents or by a parentage order of court. Thus where there is no paternity dispute between the biological father and mother of the child both parents will be taken as having parental responsibility in the same way as if their child was born during wedlock. And where there is a paternity dispute between the biological parents as to the parentage of the child, then the father may apply to court to be declared a parent under section 34(1)(b) LCA. Given such a scenario, it is more likely that DNA test would be required to prove the child’s paternity.[11]

Where the court makes an order of parentage in respect of the biological father of a child, “such a biological father shall assume the responsibility to the child in the same manner as may be in respect of a child born in wedlock…”.[12]Note also that in the same proceedings for the declaration of parentage, the court has jurisdiction to grant custody to the applicant on such conditions as it may deem fit. At the same time the court may make access orders in favour of the non-custodian parent.[13]

There may be odd cases where a rapist wishes to claim a child born out his criminal activity. In such cases, the rapist could apply under s 34(1)(e) seeking special leave of court to be declared a parent. It is reasonable  to assume that such an application will be turned down on public policy grounds.  This would be more so if the mother of the child is opposed to the application. In these circumstances the child will remain in the sole custody of the mother until he or she attains majority age. There is still the possibility that the child himself or herself may apply under s 34(1)(a) to have his or her father declared a parent. In this case the court might be moved to grant the application particularly if the mother is deceased.

Another possible case scenario is where an adulterer seeks to be declared a father of a child born to a married woman against the wishes of both the mother and her husband. Here again, the adulterer may apply under LCA s 34(1)(e) but it is unlikely that the court would grant leave. [14]
In sum the current law replaces the Affiliation Ordinance (see s 160 LCA)  and the provisions of customary law regarding the declaration of paternity.[15]It also makes provisions for custody and maintenance of children born to unmarried parents.[16]


 Summary and Conclusion

The term parental responsibility originated from the English Children Act 1989 and has since been adopted by many jurisdictions including Tanzania. The term expresses a qualitative change in the relationship between parent and child. It underlines the gravity of parenting and stresses that parental rights are derived from the duties of a parent and exist for the benefit of the child.(insert Gillick quote) Although the Law of the Child Act 2009 has listed a number of parental duties, the list is not exhaustive. One has to look in other statutes and common law to complete the long list of parental obligations. Regarding who has parental responsibilities, we have noted that besides parents there are also non-parents and public institutions that are vested with parental responsibility to care for the child for a defined period of time or until the child attains majority. This lecture has also discussed statutory provisions relating to the acquisition of parental responsibilities by unmarried parents. The introduction, for the first time in Tanzania, of DNA testing has removed the uncertainties previously encountered in establishing paternity. That said, the cost of the procedure will remain unaffordable for the majority of Tanzanians. Moreover, it remains to be seen, whether the provision for compulsory DNA testing will stay unchallenged on the ground that it constitutes human rights violation.



[1] See The Department of Health’s introductory guide to the Children Act 1989 (HMSO, 1989, para 1.4) cited in  PM Bromley and N V Lowe, Bromley’s Family Law Butterworths 8th Ed. (1992) p 298
[2] Brenda Hoggett, The Children Bill:The Aim [1989] Fam Law 217. The parental responsibility also appears in Art 5 of the Convention on the Rights of the Child (UNCRC)
[3] Section 64(2) also refers to the assumption of ‘parental responsibilities’ by the spouses where adoption is made jointly to the husband and wife.
[4] The problem with section 8 LCA is that it appears to address not only parents (as in 8(1)) but also third parties, as in 8(2)-(6). This is in contrast to section 9 which addresses parents and third-parties vested with parental responsibility.
[5] Look out for some of these…and state them here
[6] See  P M Bromley and NV Love, Bromley’s Family Law (1992) at pp 301
[7]  A foster parent means a person who is not a parent of a child but is willing and capable to undertake the care, welfare and maintenance of the child, See s 52(2) LCA.
[8] Section 138(3) LCA.
[9] A fit person is defined under section 3 LCA as “a  person of full age who is of high moral character and integrity and of sound mind who is not a relative of the child and capable of looking after a child, and has been approved by a social welfare officer as being able to provide a caring home for a child”
[10]  The idea that a child whose both parents have died may be passed on to a relative in accordance with “any traditional arrangement” without the intervention of the court is quite problematic. The fact that such relatives are not legally (only morally) responsible for the child does not offer sufficient security for the child and it is arguably not in the best interest of the child. Given that it is possible for relatives to adopt such children under s 54 LCA it is unnecessary to have additional provision for informally passing on parental responsibility without creating a legal relationship between the child and such relative
[11] See sections 35(e) and  36 LCA
[12] See section 36(4)
[13] See s37(2) and s 38 LCA
[14] Note that a husband may claim damages for adultery against such an adulterer under section 72 LMA Note the practice of English Courts in…..
[15]  The Law of Persons, Government Notice No 279/1963.
[16] See sections 36(4) and 43

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