Saturday, September 25, 2021

High Court steps into a custody minefield

Do unmarried fathers have paternity rights over their biological children, and can that right be taken away and transferred to a step father without their consent? This is the question the High Court of Botswana will be grappling with in a custody battle in which a Gaborone man is challenging the adoption of his child by a step father without his consent. In what promises to be a landmark case, the court will be asked to rule over 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. Ndadi Law Firm has notified the Attorney General of their intention to sue on behalf of their client, the unwed father of the child.

The Act that is being challenged 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…” Ndadi lawyers say their client is the biological father of the child born between him and the child’s mother on 2nd April 2001. It would appear that client’s daughter was adopted by the mother’s boyfriend, if the adoption has not take place yet, facts indicate that it is about to as facts indicate that father is denied access and visitation rights.

“Client has not consented to such an adoption and does not intend to consent to it as he is against having his daughter adopted by another men,” states the lawyers. The lawyer states that despite the fact that the father is against adoption, the law permits it. Ndadi lawyers intend to submit that Section (4) (2) (d) (i) of the Adoption of the Child’s Act contravenes section 3 and 15 of the Constitution of Botswana in permitting adoption of illegitimate children in all instances without the consent of the biological father.

The lawyers also intend to submit that section (4) (2) (d) (i) violates their client’s right to be free from inhuman and degrading treatment as guaranteed him under section 7 of the Constitution of Botswana. “It will be further submitted that Section (4) (2) (d) (i) runs counter the spirit of section of the Children’s Act that seeks to ensure that both parents care for and are involved in all matters pertaining to the rights of their children irrespective of whether they are married or not. It is submitted that the Children’s Act takes precedence”, argues Ndadi Law Firm.

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