LEGAL FRAMEWORK ON CHILD

PROTECTION
INTERNATIONAL LAW NATIONAL LAW

• Convention on the Rights of • Namibian Constitution

the Child
• Combatting of Immoral
• Optional Protocol to the Practices Act 21 of 1980
Convention on the Rights of
the Child on the Sale of
• Combatting of Rape Act 8 of
2000
Children, Child Pornography
and Child Prostitution • Child Care and Protection Act
3 of 2015
• African Charter on the Rights
and Welfare of the Child
 FOUR GUIDING
PRINCIPLES OF THE
CRC & CCPA
 PRINCIPLES???
• Rules or laws that are permanent, unchanging, and universal in
nature
• represent an objective reality that transcends cultures and
individuals e.g. fairness, integrity, honesty.

“A principle is a natural law like gravity. If you drop something, gravity

controls. If I don’t tell you the truth, you won’t trust me; that’s a natural
law.”

- Stephan Covey
 1. NON- 2. BEST
DISCRIMINATION INTEREST OF
THE CHILD

4. LIFE,SURVIVAL
3. PARTICIPATION AND
DEVELOPMENT
 1. Non-discrimination

• No child should experience discrimination on account of any reason such

as race, religion, gender or disability
• No child should be discriminated against on account of his/her parents
race, religion, etc.
• Children born of unmarried parents should not experience discrimination
compared to children born of married parents
 2. BEST INTEREST OF THE CHILD

• Little consensus regarding what constitutes the

best interests of the child.
• Various constructs/principles emerged as primary
factors that courts can consider when making child
custody decisions.

Can the best interest of a child be determined as

an absolute certainty?
 CRITICISM

• Principle of the best interest of the child is subjective.

• Decisions often clouded by professionals’ own
cultural beliefs and perceptions of what is in the best
interest of a child, as well as a lack of knowledge
regarding children.

WHAT DO YOU THINK??

• The principle of “best interest of the child” not cast in stone.
• Historical, political, social, economic & other factors can be
incorporated in the determination of the child’s best interest.
• A case-by-case analysis should be done.
• Legislation provides a list of factors to consider when
deciding a matter affecting a child.
• List by no means exhaustive, but serves merely as a guiding
framework & should be used in a flexible manner
• Courts also tend to rely on previous judgments, so that there
is not always enough room for flexibility
 Child Care and Protection Act (3 of 2015)

“In all matters concerning the care, protection and

well-being of a child the standard that the child’s best
interest is of paramount importance must be applied”
 Child Care and Protection Act (3 of 2015)
GUIDELINES FOR ASSESSING THE BEST INTEREST OF THE CHILD

• The child’s sex, age, background, • The capacity of the caregiver to provide
maturity and level of development for the child’s physical, emotional,
• The child’s physical, emotional security, intellectual, spiritual, developmental
intellectual, emotional, social and and educational needs
cultural development • The importance of maintaining contact
• Any disability or chronic illness with family members – would a specific
• The nature of the child’s relationship change make it easier or harder to
with the parents, siblings and other maintain such contact?
relatives, and with any other people • The need to protect the child from harm
who are significant in his life • Any history of family violence against
• The attitude and behavior of the parents the child or any other family member
or any other caregiver • The need for a stable family
• View and opinions of a child environment
• Right of the child to know and be cared
for by his or her parents
Nature of the personal relationship The practical difficulty and expense of
between the child and other a child having contact with the
significant persons in the child’s life. parents

The attitude of each child’s parents The need to protect child from
towards the child and towards the physical or psychological harm
exercise of the parental
responsibilities and rights in respect Need to minimize further legal or
of the child. administrative proceedings in relation
to the child.
The desirability of keeping siblings
together
Likely effects on the child of any
change in child’s circumstances.
“The child’s preference is not always indicative of the ‘best
interest’ but an informed nature and intelligent opinion
carry substantial weight.” (Anderson & Spijker, 2002)
• The best interest of the child means considering the
child before a decision affecting his/her life is made.

• A child has the right to participate in matters

affecting his/her destiny (UNCRC, Art. 12)
 3. Child participation

• Children have the right to express their views in matters affecting them.
• These views should be given due weight in accordance with the child’s age,
maturity and stage of development.
• Views expressed by the child, verbally or non-verbally, must be given due
consideration.
• Every child has the right to choose not to participate in a matter
concerning him/her, but should be given all necessary information and
advice as would enable that child to make a decision on participation which
is in his/her best interests.
Principles to follow with respect to child participation ,
CCPA 5(3)
(a) the child should be informed of the (c) the child should be informed of the
circumstances under which s/he will be outcome of any decision-making
asked to express her/his views, of the process;
impact that his/her expressed views
will have on the outcome of any (d) the child should be given an
decision, and of services that can opportunity to complain if s/he feels
potentially be provided to the child; that his/her right to participate has not
been respected; and
(b) all necessary and reasonable
measures should be taken to ensure (e) the right of child participation
that the child is not punished or should be promoted in respect of any
victimized for expressing his/her views; child who may experience barriers to
participation for any reason, including
disability, language or any form of
discrimination.
 4. PRINCIPLE ON THE RIGHT TO LIFE,
SURVIVAL AND DEVELOPMENT

• PRE-NATAL DEVELOPMENT:
• Mothers need regular medical care, so if problems develop they can be treated as soon as
possible.
• Pregnant mothers must avoid all alcohol, smoking and drugs. They must be careful of
what medicines they take during pregnancy.
• Mothers should try to relax and enjoy the pregnancy and, if possible, use the opportunity
to grow together with the father of the child in anticipating this very exciting event – the
birth of a baby
• EARLY CHILD DEVELOPMENT
THIS Looks at how young children think and learn. Children learn through experiencing,
watching, copying and observing. They are born curious and want to understand things
about the world in which they live. Mediated learning helps children to learn new skills and
abilities. It is important to stimulate babies and young children in order to grow their minds.
We can do this by showing them books, colours, textures, by singing songs and interacting
with them.
• MIDDLE CHILDHOOD YEARS
• children attend school and develop many skills through this form of learning, but they are also
learning at home, in the family and with their friends.
• As they grow older, they also begin to be able to think more abstractly.
• Play is an important part of learning and development. Children process their emotions (feelings)
through play.
• During their primary school years and beyond, friendships are also very important and can be very
influential.
• Siblings can also play an important role in a child’s life. We should keep siblings together and make
sure that all children have friends.
• Bullying happens when someone with more power unfairly hurts someone with less power over
and over again. It is important to understand that bullying often takes place when children come
from difficult home situations – we can address these root causes by strengthening psychosocial
support towards both the bullied children and the children who are doing the bullying.
• ADOLESCENCE
• a young person faces many changes in his or her body.
• Social development and identity development become very important and we can try to
help the young person to feel part of a social group.
• We can develop healthy and constructive rites of passage to honour the development of
youth.
• We need to stand up against harmful practices like genital mutilation and early forced
marriages.
• Young people have positive energy which may be used to develop communities into better
places for all children and young people.
 THE UN CONVENTION
ON THE RIGHTS OF THE
CHILD IN BRIEF