“The paradox…, is that even when children are construed as rights holders, it is difficult for them to assert their rights. The reasons are practical, political, and legal. Young children are completely and unavoidably dependant on those who have power over their lives (O' Donovan: 1983).”I was reminded of this ...
“The paradox…, is that even when children are construed as rights holders, it is difficult for them to assert their rights. The reasons are practical, political, and legal. Young children are completely and unavoidably dependant on those who have power over their lives (O' Donovan: 1983).”
I was reminded of this quote in this matter that came before me as an opposed application, misleadingly headed “court application for custody” when it was, as a matter of fact, an application for variation of custody.
Nonetheless, I adopted a robust view and heard the matter on the merits given the fact that it involves minor children.
The fact that children are powerless is the more reason why this court, as the upper guardian of all minor children, must stand as the last bastion in defence of the rights of children.
On 22 June 2017, this court granted a decree of divorce between the applicant and the first respondent. In that order, custody of three minor children, namely, MJ (born 12 August 2002); SJ (born 12 August 2007) and JEG (born 3 March 2011) was awarded to the first respondent with the applicant being awarded access.
In terms of the consent paper, the applicant is to be wholly responsible for the educational costs of all three minor children until such a time that each child attains his/her first degree or becomes self-supporting - whichever is sooner.
It is pertinent to note, that, of the three children, only one, namely, JEG is the biological child of the applicant and the first respondent. The other two are the biological children of the first respondent.
There is no explanation of why the two are included in the custody order given the fact that the applicant did not formally adopt the children as his own but this may have been based on the provisions of section 83 of the Children's Act [Chapter 5:06] which places liability on a step-parent to maintain a step-child....,.
The other reasons advanced by the applicant for custody were that..., she had expressed intentions to go and set up business in Mt Darwin...,.
In response, the first respondent stated..., that she went to Mt Darwin to explore business ventures so that she could supplement her income....,.
A pertinent issue to note is that the applicant is not the biological father of SJ and MJ....,.
In terms of section 83 of the Childrens Act [Chapter 5:06], the liability of a step–parent to maintain a step-child ceases in the event of divorce or judicial separation and there is no order of maintenance made in favour of the step-child.
Granted, in the consent paper there is an order relating to educational welfare of the step-children...,.
I note, that, in the consent order, there is no provision for monetary maintenance for the minor children, but, that does not take away the legal obligation of the applicant to maintain the minor children in addition to the payment of all educational costs.
The first respondent is equally under such an obligation and the law relating to maintenance makes it clear that each party must contribute according to their own means - see Dawson v Ushamba HH335-14.
The first respondent cannot be faulted for travelling to Mt Darwin to scout for business opportunities.
