Father faces uphill in custody battle

Protecting children’s rights

12 May 2019 | People

Ingrid Husselmann Children’s Advocate “The deciding factor will always be in the best interest of the child.”

Walvis Bay • Leandrea Louw

A local man claims that social workers are discriminating against fathers fighting for the custody of their children.

James Martin* has been in a lengthy court battle to gain full custody of his 9-year old daughter. He says her mother wants to move to Windhoek, and take his daughter along. However, “her entire support system is in Walvis Bay. My daughter has told me countless times that she does not want to move. It’s not fair to uproot a child in the middle of the year and let her live with people she barely knows.”

Martin says he has approached both government and private social workers who told him even before scrutinizing the evidence that children in these cases usually go to the mother. “One social worker even laughed at me. They’ve already judged me as an unfit parent without looking at the evidence.”

Initial arrangements

Martin says that he and his ex-wife made an arrangement in August 2017 that his daughter would stay at his house after school, and that he could see her every second weekend. “I’m not saying that she is an unfit mother. This is about the wellbeing of my child. My daughter has asked me countless times to fight for her, so that’s what I am doing. I have a friend fighting for support money from her ex, and here I am doing the opposite – I’m providing for my child, but the law is tying my hands.

“Every day somewhere a child is hurt or murdered by someone they love, and I know I can protect my child. How many fathers suffer in silence with the same plight? How many have given up?”

According to Margret Richter, senior social worker responsible for child welfare in the Erongo region, there should be valid, legal reasons to remove a child from the custody of a parent.

“I cannot comment on the reactions of the social workers as I do not have all information. But the law is clear on custody and access where both parties have rights. Still, a parent has the right to move within the boundaries of Namibia without losing custody.”

She said that if someone feels they are not being treated fairly by social workers, a supervisor should be approached. “Going to the media won’t help your case or sort out your problem. Custody is never an easy process, but the best interest of the child should be the most important aspect, and not the interest of the parent.”

‘No discrimination’

Ingrid Husselmann, children’s advocate in the office of the Ombudsman, said that the laws aiming to protect children do not allow for discrimination against fathers. “Service providers like social workers would be wrong to advise a father that custody is always awarded to the mother without taking other factors into consideration. If there is an issue with social workers, approach a supervisor.”

Husselmann reiterated that both parents have equal rights and responsibilities regarding their children. “Where parents are not married or divorced, they must decide which parent will care for the child on a daily basis. The parent without custody has an automatic right to access. If the parents cannot agree, the children’s court will decide. The deciding factor will always be in the best interest of the child. A social worker report is required in all cases involving questions of custody, guardianship or access,” she said.

According to Husselmann, the Child Care and Protection Act 3 of 2015 (which came into operation on 30 January 2019) makes the best interest of the child the key consideration. “Since decisions regarding the care and protection of children are often complicated, the best interest standard aims to reduce conflict and simplify decision-making. The best interest standard is part of the Convention of the Rights of the Child and the African Charter on the Rights and Welfare of the Child. Namibia is party to both these agreements.”

Child participation

Husselmann says that the Child Care and Protection Act recognises the importance of child participation and sets out children’s rights and responsibilities. “Children of sufficient age, maturity and stage of development must be given an opportunity to express an opinion about decisions which affect them. Such views must be given an appropriate degree of consideration bearing in mind the child’s age and maturity. This is important because children, like adults, have thoughts and feelings, responsibilities and opinions and should not be treated like objects to be argued over.”

She encouraged children, parents, members of the public or adults responsible for children to contact the children’s advocate at the office of the Ombudsman regarding any issues relating to the physical and emotional wellbeing of a child or children in general (a child is a person under the age of 18). Also visit their Facebook page or website, or call 061 2073111 or send an SMS to 20401.

*Name has been changed.