ARTICLE 14(3) OF THE Namibian Constitution states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.
The United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child both protect the family, and also require the state to protect children from harm.
Namibia’s key law on children, the Childcare and Protection Act 3 of 2015, is intended to safeguard children’s right to protection against abuse, neglect or other hardships.
It provides clear procedures to make sure children get the protection and assistance they need.
Yet the legal protections for our children are not always applied as robustly as they should be.
In Namibia we often praise our progressive laws, while at the same time criticise the ineffective implementation of such laws.
We must ask ourselves who is failing our children when it comes to implementing these laws that protect children’s rights, and what kinds of action we need to take to make them work in practice.
We have so many role-players: social workers, police officers, counsellors, legal professionals, medical personnel, church and traditional leaders, as well as parents, guardians and extended family members, who have a vital duty to safeguard children.
We should all be asking ourselves if we are doing enough.
The Childcare and Protection Act provides for a wide range of protective services, which are state interventions for children who are not receiving sufficient care or protection.
In rare cases, a social worker or a police officer can remove a child from their usual home as an emergency measure if the child is at serious risk of harm, before formal investigation and court proceedings take place.
Safeguards for such removals include immediate notice to the child’s parent or guardians if they were not present, and a review of the removal by the children’s court within just a few days.
As another precaution, the law says a police officer or a social worker who abuses removal powers would have to undergo disciplinary proceedings.
If a child appears to be in need of help, a social worker must investigate. If the social worker finds the child is actually in need of protective services, the social worker must advise on the most appropriate services in the best interests of the child, which could include removing the child from their usual home as a last resort.
The law also provides procedures for changes to custody, guardianship and access, and for obtaining guardianship of a child whose parent or guardian has died without making any arrangement for this.
But removing children from the family home or taking away parental powers are drastic steps.
This means family problems which endanger children should be addressed through support, supervision and assistance to the family if possible, with removal of the child from the family being a last resort.
It also means that issues of custody, guardianship and access must be addressed with the utmost care.
The ‘best interests’ concept is the cornerstone of any of these decisions.
Some people speak of ‘best interests’ as though this is just a subjective opinion about what is best for a child, which can be formed without considering in detail the child’s actual situation and needs.
On the contrary, the law provides a list of clear and concrete factors which must be considered by social workers and other role-players before making decisions about children.
The first step is to look at the child: What is the child’s age, sex, maturity and stage of development?
What are the child’s personal characteristics? For instance, a change in home or school circumstances may be harder for a child who is very shy.
What is the state of the child’s intellectual, emotional, cultural and social development? This should include a consideration of the things that are particularly important to the child – which could be anything from church attendance to participation in a particular sport.
Does the child have any special needs, such as a disability or a specific learning challenge? The child is always the starting point and the centre of the enquiry.
The second step is to consider the child’s background and circumstances.
Who has been caring for the child up to now? What kind of relationship exists between the child and other significant people in the child’s life, including parents, other caregivers, extended family members, or anyone else who is important to the child?
Children usually need to maintain connections with their family and extended family, as well as their culture and traditions. And what about brothers and sisters? It may be desirable to keep siblings together in one household, or one sibling may be posing a danger to another.
Thirdly, social workers and courts must consider the position of the parents. What is the attitude of the child’s mother and father towards the child?
Have the parents been trying their best to exercise their parental responsibilities and rights with the child’s welfare in mind? Does the mother, the father or any other caregiver involved have the capacity to provide for the child’s needs? If not, is there some support that would correct his problem, such as training in parenting skills or help with substance abuse?
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