Gaborone–On Monday, 2 February, the Botswana High Court will hand down judgment in a constitutional challenge to the Adoption of Children Act. The Act permits a child who is born out of wedlock to be adopted by a third party without the consent of the child’s biological father.
The applicant argued that without a change to the law his minor biological daughter, born out of wedlock, would be adopted against his wishes. This would occur despite the fact of his continuous involvement in the child’s life. He argued that the Adoption Act is unconstitutional in that it discriminates against fathers in a manner that is not necessarily in the child’s best interests.
“The Court will determine whether Botswana’s law protects the interests of children, who are ultimately the ones who bear the burden in such a case,” says Cindy Kelemi from the Botswana Network on Ethics, Law and HIV/AIDS (BONELA). BONELA is advocating for law reform in child adoption to ensure that it is aligned with the principles enshrined in the Children’s Act of 2009.
“International and regional human rights law requires that the child’s best interests be of paramount importance in all issues concerning the child. In cases where fathers have played a positive and active part in their child’s life, it is generally not in the child’s best interests to terminate that relationship by adoption against the father’s wishes,” says Anneke Meerkotter, Litigation Director at the Southern Africa Litigation Centre (SALC), which is providing assistance on the case.