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.
[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.
[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
[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…..
