24th March 1996

Competing parents: where do children go?

Years ago, a certain popular daily newspaper used to carry a monthly supplement titled "Mother and Child". Pictures of a cherubic baby and an adoring mother graced the cover while the contents of the supplement focused on pre and post pregnancy care, what food the mother should give to the child and what clothes she should buy for her child. Thus behold the mother in her important role as physical career of the child.

But to what extent is the mother really allowed to take part in decision making as regards other aspects of her child's life? Does our law confer equal parental rights upon the mother as upon the father? Do both parents have a joint parental responsibility towards their children? Discussion on these issues have formed part of a growing debate regards reform of our child laws by academics, lawyers and social workers. They point out that the time is ripe for a comprehensive overall evaluation of Sri Lanka's child laws so that Sri Lanka's international obligations under the convention on the Rights of the Child could be satisfied.

Recent amendments to the Penal Code which attempted to address certain troublesome issues relating to women also focused upon children to a significant extent. Abused, abandoned, deserted and illegally adopted children were given wider protection under the law. New offenses such as cruelty to children, trafficking in children, possessing publications and indecent photographs of children were created and the law provided for an enhanced punishment for child offenders.

But these law reforms addressed only the penal aspects of our laws. Much more needs to be done if Sri Lanka's' child laws are to be brought in line with the convention on the Rights of the Child.

Modern law as set out in the international convention emphasizes the notion of the individual personality of the child. It is specifically stated that children are citizens in themselves and should be treated as such. Importantly, the convention states that, "In all action concerning children... the best interests of the child shall be a primary consideration."

As children are not capable of enforcing their own rights, it is left to adults to enforce rights on their behalf. Thus, the idea of "best interests of the child" acts as a guideline to enforcing these rights. This means that what is important in issues like custody and adoption is what is good for the child rather than a natural right of a parent over a child. The convention also sets out the notion of joint parental responsibility towards their children and points out that neither the father nor the mother should be given preferential rights over each other in this respect.

Both these concepts of best interests of the child and joint parental responsibility are fundamental to the convention and - represents its underlying philosophy.

Sri Lanka ratified the convention on the Rights of the Child in 1990 and subsequently signed the Global Plan of Action for Children in 1991. By doing so, child law in Sri Lanka ceased to be of pure domestic concern. We are now obliged to ensure that our law corresponds to international norms. Accordingly, Sri Lanka presented its initial report on measures taken to implement provisions of the convention to the monitoring committee set up under the convention which met in Geneva mid last year. A further report is due in another five years time.

"Towards Change" talks with Sharya de Soyza, authority on family law and former Dean of the Law Faculty, University of Colombo on the need to initiate further changes in our laws so as to bring them in line with international norms.

Q. In what way does the convention on the Rights of the Child perceive the identity of a child in law?

A. The child is looked upon as having rights separate to and distinct from both the father and the mother. Article 18 of the convention states that parents have common responsibilities for the upbringing and development of a child. Where appropriate, the state is required to give assistance to parents and legal guardians in the performance of their child rearing responsibilities.

The convention proceeds on the basis that it is not safe to assume that parents are always the best judge of what is good for the child. While normally this is the case, in some instances this principle breaks down. Thus, parents in the throes of a divorce, for example are not so inclined to take the interests of a child into consideration. Sometimes, children are even used as bargaining chips by warring parents.

Thus, while the convention stresses the need to respect the role played by parents in an ongoing family, where the parents are unable to fulfill this duty, the state and the law must ensure that the best interests of the child are given primary importance.

Q. In what way does the domestic law measure up to these norms?

A. Our general law which is a mixture of Roman Dutch and English laws embody a strong notion of parental rights rather than the best interests of the child, the family is treated as a unit in which there is a hierarchy of rights and duties. The father is given a preferential right over the mother in custody battles. Both the father and the mother are given preferential rights over third parties, as for example when adoptive parents fight the natural parents for custody of the child.

In both cases, the child's interests are not treated as paramount, but are assimilated in the claims of competing adults.

This is in complete contrast to the convention which sees the family as a group of individuals with conflicting rights but over which the right of the child has primary importance. Parental rights are looked at in the context of child welfare and not the other way around.

Q. How have our courts reacted to these issues?

A. A court facing a custody issue is well aware of the best interests of the child. But a judge is hampered when he also has to deal with the traditional notion of the preferential right of the fathers.

In some instances this right has been displaced by a court and a father denied custody. The court has the power to do this in their role as upper guardians of the child. But our courts have said that they can do this only on strong and compelling reasons. As a result under present Sri Lankan law, the legal scales are tilted towards the father to an extent inconsistent with our international obligations.

Q. Sri Lanka went before the committee on the Rights of the Child in June last year to report on implementation of its obligations under the convention. Did these matters come up for discussion?

A. The committee was specially concerned about the lack of articulation of the best interests of the child principle in our national laws.

Q. What do you suggest should be done to rectify the situation?

A. There has to be a strong statutory embodiment of this concept so that every judge in the country knows that in a dispute involving a child, there is one criterion that stands above everything else and that is the best interests of the child. The preferential right of the father should be laid to rest as an antiquated notion long displaced in other legal systems.

What happens now is that though the best interests of the child are considered, it depends on the whims and fancies of individual judges. Instead, the law should set down certain definite guidelines that should be followed by every judge who would then have a more structured discretion rather than total discretion in these matters.

Q. The convention on the Rights of the Child also talks about the joint responsibility of the parents in bringing up a child. Do our laws reflect this principle?

A. Article 18 of the convention emphasizes joint parental responsibility. This is a fundamental tenet of the convention. But there is no similar article in our children's' Charter which translates the convention into local standards. In Article 19 of the Charter, the statement that parents have a joint responsibility towards their children is absent.

Q. Do you think that this omission is deliberate?

A. Yes. It reflects the whole trend of our laws. For a long time, our legal system operated on the basis that it is the father who has the paramount right in relation to the legitimate child.

He has the decisive say in all matters relating to the upbringing of the child. In actual fact and practice, though joint decision making is the rule rather than the exception in Sri Lankan families, our law does not reflect this. It is the father who is legally entrusted with the right of determining the lines on which a child's religious and secular education ought to proceed. It is the father who administers the property of the child, and assists the child to contract and litigate.

The mother's legal responsibilities come into operation only if the father is dead or incapacitated.

Q. What about the duty of support for a child?

A. Our law imposes a primary obligation of support on the father. This is also contrary to the convention which clearly imposes a duty of support on both parents. Thus, though the parental duty of support and a child's right to receive support is firmly entrenched both in our General Laws and Special Laws, the focus has to be shifted to keep up with modern trends.

Q. Is the situation different as regards the illegitimate child?

A. Yes. In the case of extramarital or illegitimate children, the mother is given preferential rights. A duty of financial support could be imposed on the father but he does not have any say in the upbringing of such a child, even if he wants to. Our courts have generally held that in these cases, a father has to put forward strong and compelling reasons even to have access to, or custody of his illegitimate child.

These concepts are totally archaic and out of tune with modern law. Moreover, the practice of linking only the mother with a child born out of wedlock offends the non-discrimination principle in international law.

Whether a child is legitimate or extramarital, what should be emphasized is the joint parental responsibility of both parents towards such a child.

Q. Are there any other instances where our law falls short of standards specified by international law?

A. Article 5 and Article 12 of the convention makes reference to the evolving capacities of a child. While parents should provide direction and guidance to children, this must take into consideration the views of children once they have achieved a certain level of maturity. What this concept requires us to concede is that a young person does not remain completely under parental control until he or she magically acquires independence on his or her eighteenth or twenty first birthday as the case may be. It requires the court to be sensitive to the fact that children ought to have a say in decisions that effect them. The committee on the Rights of the Child in examining Sri Lanka's report last year commented that the views of the child are not sufficiently taken into account within the family, the school or the juvenile justice system.

Q. From the above discussion, it appears to be plain that Sri Lanka has departed from its international obligations in quite a significant manner on the domestic level. Normally, when a state disagrees with certain norms in international conventions, they make reservations to this effect when ratifying that particular convention.

However, in this case it is remarkable that Sri Lanka has made no reservations to the convention even though quite a number of other states made appropriate reservations. Can you comment on this?

A. This practice of unreservedly accepting the convention and all it entails on the international plane and then doing something quite different domestically is unethical. It is a matter of regret that this dual standard is followed whether intentionally or unintentionally.

Sri Lanka's approach to reforming child laws requires a closer scrutiny of relevant international norms. While it has to be conceded that we have repaired some of the more obvious shortcomings in our laws with the recent amendments to the Penal Code, there is no doubt that the state has to focus on issues discussed earlier if our child law is to develop as a whole rather than as a response to some public outcry.

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