Introduction:
Child and Family
The general law relating to the child is wider than what students of family law are expected to study. For example, the law relating to the child in conflict with the law is not included as part of the family law curriculum. Similarly, the law relating to child care and protection and child employment is also outside the family law syllabus. It is important to set these boundaries in order to focus specifically on the law relating to the child within the family context. The approach taken in this lecture is to explore the rights and obligations of the child within the family. The approach envisages a tripartite relationship between the child, the family and the state. This lecture examines the rights of the child within the family, the status of the child under the law, presumption and proof of parentage and guardianship.
Rights and Duties of the Child in the Family
The idea that a child has rights within the family is novel in many jurisdictions and indeed even today its roots are not yet firmly entrenched. For many years the law assumed that the child would be safe and secure within the family and therefore did not need any rights. The position changed radically after the United Nations Convention on the Rights of the Child (UNCRC) came into force in 1990 and was ratified by almost all states including Tanzania.[1]The enactment of the Law of the Child Act 2009(LCA) aimed, among other things, at implementing some of the provisions of the UNCRC.
Part 2 of the LCA consists of several provisions prescribing the rights that the child is entitled to enjoy. These include the right not to be discriminated against, the right to a name and nationality, the right to grow up with parents, the right to express his or her views and to participate in all decisions affecting him or her. The child also has the right to be free from torture or other cruel and degrading treatment and/or punishment. The term ‘degrading treatment’ means an act done to a child with the intention of humiliating or lowering that child’s dignity.[2]Any cultural practices or customs which dehumanise or are injurious to the physical and mental well-being of the child are also an infringement of the child‘s rights.
Furthermore, no correction of a child is permitted which is unreasonable in kind or in degree according to the age, physical and mental condition of the child. Again no correction of a child is permitted if the child by reason of tender age or otherwise is not capable of understanding the purpose of the correction. It is also prohibited to employ or engage a child in any activity that may be harmful to his or her health, education, mental, physical or moral development.[3]
Apart from the child’s rights enumerated above the LCA also provides for the general duties and responsibilities of the child. These include the duty to work for the cohesion of the family; to respect his or her parents, guardians, superiors and elders and to assist them in case of need; to serve his or her community and nation by placing his or her physical and intellectual abilities at its service in accordance with his or her age and ability; to preserve and strengthen social and national cohesion; and to preserve and to strengthen the positive cultural values of his or her community and the nation in general in relation to other members of the community or nation.[4] It is clear from the above discussion that Tanzania law now recognises that a child has rights and responsibilities. This has significant implications for the way the law looks at the relationship between the child on the one hand and his or her parents on the other hand. As will be noted later in Lecture Ten, the acceptance that children have rights is the foundation of the concept of parental responsibility.
Status of the Child under the Law
The term status of the child means the standing of the child before the law. Section 4 of the LCA defines a child as “a person below the age of eighteen years.” The status of being a child has important legal consequences. On the one hand the law considers the child to be vulnerable and therefore entitled to protection. Such protection carries with it a number of legal incapacities.[5]On the other hand, the law also recognises that a child is a human being, albeit young, vulnerable and still evolving, who is entitled to exercise his or her human rights consistent with the child‘s age and evolving capacity. The child is also entitled to respect and dignity from adults.[6] Many of the provisions of the Law of the Child Act can be summed up as reflecting the two competing strands.
For a example, whereas the child has no legal capacity to enter into a binding contract except for necessaries of life, section 77(1) LCA states that a child has the right to work. Yet the said right to work is qualified by a series of provisions aimed at protecting the child from exploitation and other harmful employment practices. Again the law recognises that a child, at a particular age, has the legal capacity to commit offences, at the same time the law seeks to make special provisions for the child in conflict with the law as provided in Parts IX and X of the LCA.
In sum, the legal status of the child in Tanzania has been greatly raised by the enactment of the LCA, which seeks to a fair degree to implement the CRC in accordance with Tanzania’s international treaty obligations.
Proof of Parentage
The parents of a child are the most important persons in the child’s life. Parents are the link between the child, the state and the law. Ideally, every child has to have identifiable parents who are legally responsible for the child’s upbringing and who remain responsible for that child until the child attains majority age or other parents are found for that child. Indeed the entire structure of the law relating to the child is based on the strong assumption that the child has parents or persons acting in the place of parents. Once the parents are absent, the state has to take over in order to act as a substitute parent. It is for this reason that proof of parentage is important not only for purposes of the child’s identity and emotional well being but also for the smooth operation of the entire legal structure designed to support the child throughout his or her childhood.
Section 35 of LCA states that a person seeking to be declared a parent of a child may rely on any one of the following five pieces of evidence. These are: a) valid marriage between the parents of the child, b) name of the parent having been entered in the Register of Births, c) performance by the man of a customary ceremony signifying that he is the father of the child, d) public acknowledgement of parentage by the father, e) DNA test results. What emerges from the foregoing five criteria is that the law has provided a wide and flexible framework for proof of parentage. It has combined the common law presumption of legitimacy with the African customary law principles relating to proof of parentage.
Also to be noted is that the law has seemingly moved away from the concept of legitimacy to one of parentage. Thus s 3 LCA defines a parent as a biological father or mother and says nothing about the relationship between the father and the child’s mother. The question as to who may apply to court for “an order to confirm the parentage of a child” section 34 LCA provides five persons. These are, a) the child, b) the parent of the child, c) the guardian of the child, d) a social welfare officer; or e) any other interested person but with special leave of the court.[7]
Presumption of Parentage
Although the LCA does not specifically speak of the common law presumption of paternity, it is clear from s 35, (except for the DNA testing), that the evidence required to prove parentage (read paternity) is based on the old presumption of paternity. For example, marriage creates the presumption that the husband is the child’s father until the contrary is proved.[8] The inclusion of the name of the father in the Register of Births also raises a rebuttable presumption of parentage. The performance of customary ceremony by the child’s father and/or public acknowledgement of paternity also raises a similar presumption of parentage. It seems that where such evidence is produced and one of the parties wishes to rebut the presumption, that party would have to produce further evidence to rebut such a presumption. In this context, it is ultimately the DNA test that will prove beyond doubt that the putative father is or is not in fact the child’s father. It appears that the English Common law presumption of paternity was extremely useful tool in the period before science and technology could conclusively show who was the child’s father. It remains useful even today given that there is limited availability of DNA testing in most parts of Tanzania. The question that the LCA does not appear to address is whether the parentage of a child born during wedlock can be challenged by any interested party
Guardianship
A guardian is a person other than a parent who has parental responsibility over a child. Such a person may be appointed by deed, will, or order of the court. The guardian has the duty of taking care of the child and managing the child’s property as if he or she were the child’s parent. As noted above the law relating to the child in most jurisdictions is based on the assumption that a child has a parent or in the absence of a parent, someone who stands in the place of a parent. A guardian is such a person who stands in the shoes of the parent. There are also other persons who are neither parents nor guardians but are vested with parental responsibility. For example, a patron of an approved residential home, a manager of an institution and foster parents are persons legally vested parental responsibility to act in lieu of parents.[9]
Summary and Conclusion
This lecture has identified the scope of the law relating to the child. The focus is on the child within the family and the child’s relationship with his or her parents. The discussion on the rights of the child within the family has shown that the child is now legally recognised as a holder of rights. This lecture has discussed the legal status of the child and pointed out that although the law recognises a child to be a holder of rights, yet the child is also immature and vulnerable; hence requiring legal protection. Such protection is partly delivered in the form of legal incapacity. [10]We have also noted that the law relating to proof of parentage is based partly on the old presumptions of parentage except for the DNA test as evidence of parentage. We have noted that the development of science and technology has gradually weakened the importance of the old presumptions as to parentage. Guardianship, it has been argued, arises out of the need to provide a substitute parent for the child. This lecture has noted also that the entire arrangement for child upbringing and protection requires the involvement of a parent or a person/institution acting as parent. In cases where a parent is absent, it has become necessary for the law to create substitute parents such as the guardian. The next lecture examines the child’s rights and obligations of within the new concept of parental responsibility.
Citation
[1] Only Somalia, South Sudan and the United States of America are not parties to the UNCRC. There are indications that Somalia will become party in the near future.
[3] Child development in relation to the welfare of the child means the process of change during which a child is able to reach his or her highest physical, mental, emotional and social potential through continued interaction with the environment around that child (adopted from s 3, LCA).
[5] For example, a child is not legally competent to contract except for necessaries of life. A child may not sue or be sued in tort except by the next friend. Parents are responsible for the torts committed by their children. A child lacks the capacity to marry except with parental consent provided he or she has reached the minimum age for marriage, fixed at 14yrs.
[6] Section 11 LCA states that a child who is capable of forming an opinion shall have a right to express his or her opinion and the right to be listened to and to have a right to participate in decisions which affect his or her well-being. This section takes after Art 12(1) of the UNCRC which states “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
[7] The requirement for special leave of court is intended to guard against a third party, such as an adulterer, seeking to challenge the parentage of a child born in wedlock. See Amina Bakari v Ramadhani Rajabu 1984 TLR 41(HC). There are also cases where in a visa application some foreign embassies have required that applicants undergo a DNA tests to confirm the parentage of a child or children being taken overseas.
[8]See Rule 175 of the Customary Law Declaration Order (Government Notice No 279/1963). In Amina Bakari v Ramadhani Rajabu 1984 TLR 41 (HC) Lugakingira J stated that “the contract of marriage confers certain rights on the husband, including the right to children born during the subsistence of the marriage...It is therefore open neither to the wife nor to her lover to deny the husband’s paternity to a child born during the subsistence of the marriage”.
[10] The question then is where should one draw a line between protection and respect for the child’s rights. Part of the answer lies is in the concept of the child’s evolving capacity. This concept suggests that the child should be prepared to assume progressively the full exercise of his or her rights as he or she grows up. See Art 5 CRC.
