Gaborone High Court Judge, Justice Key Dingake, has ordered lawyer Uyapo Ndadi of Ndadi Law Firm to serve an order on the Attorney General, Athaliah Molokomme “in person” after her office failed to reply to a suit in which an unwed father of a child is challenging the legality of some sections of the Adoption Act.
In the suit, the unwed father is challenging the legality of section 4 (2) (d) (i) of the Adoption Act, which permits an illegitimate child to be adopted in all cases without the consent of its biological father.
Justice Dingake ordered the Attorney General to assist the court in determining this matter by filing heads and appearing on the date set for arguments.
The court also refused a request by the child’s mother to be allowed an opportunity to oppose the application by the child’s father.
“The reasons advanced that she was too busy are weak and undermine the seriousness with which court proceedings must be taken by litigants,” read Justice Dingake’s order in part.
The Adoption Act states that a court to which an application for an order of adoption is made shall not grant the application unless it is satisfied that consent to adoption has been given; by both parents of the child or if the child is illegitimate, by the mother of the child (emphasis ours) whether or not such mother is a minor or married woman and whether or not she is assisted by her parent, guardian or husband as the case may be.
In his founding affidavit, the father of the child who cannot be named for legal reasons stated that the Act in question is harsh and insensitive to him as he is required by law to be present in the affairs and upkeep of his child.
“But I’m reduced to nothing when it comes to an important aspect of giving up my child for adoption or not. This pains me a great deal and causes me sleepless nights,” he said.
He argued that he should have the same rights over his biological child as the child’s mother irrespective of whether or not he is married to her. He said the law imposes duties on him, as a father, when it comes to the upkeep and maintenance of his child and he found it unreasonable that when it comes to an important decision like adoption, he is excluded.
The father revealed that in August 2012, the Magistrate Court ruled that his daughter should live with her mother as she desired, but that he should have visitation rights and further provide any support as necessary in agreement with the child’s mother. He stated that since that ruling, he has not seen his daughter as her mother has denied him access to her and that his daughter has not visited him during any of her school holidays. However, he said, he has continued providing his daughter with support, including providing her with her school uniform, transport money for school and her medical aid. The father revealed that in 2013, he took a decision to stop providing support for his daughter as he was being denied access to her.
He said he informed the child’s mother that she was violating the Magistrate Court’s order which gave him the right to visitation, to which the mother of the child replied that “a court order was just a piece of paper” and that “his child was also her child and thus she can do whatever she pleases with her.”
The father of the child said he was also informed that his daughter is being adopted by her step father. He added that having his daughter living with her step father as opposed to him has been very difficult.