Family crushed by court ruling on baby girls

19 April 2021 | Justice

Windhoek • [email protected]

In what has been described as a judicial cop out, a Namibian High Court judge on Monday refused to set aside the Ministry of Home Affairs’ decision to deny issuing travel documents to six-week old twins Maya and Paula Delgado Lühl.
The three-week wait for the judgment ended in shock and devastation for Namibian Phillip Lühl and husband Guillermo Delgado, who had hoped to reunite their family this week.
High court judge Thomas Masuku said the urgent application to bring back the twins was rejected, in part, because it would be “judicial overreach” to intervene with the home affairs ministry’s decision.
He admitted in his full judgment that the decision was made with a “very heavy heart, understanding as I do, that it involves the issue of minor children and what the applicant’s counsel referred to as their possible statelessness.”
Masuku explained that the Ministry of Home Affairs had never received an official application to issue the travel documents, only a letter, and this was at the crux of the matter before the court. “If the court issues an order to compel the Minister, without him having had an opportunity to deal with the application in the normal course, that may be detrimental as the court would issue the order in the dark, without the Minister having brought his mind to bear on the merits of the application. This would certainly result in judicial overreach, which would be a subversion of the doctrine of separation of powers.”
He said the application before him was asking the court to “usurp the functions of the Minister”, in the absence of an official application.
Masuku added that only if there is disgruntlement with the minister’s decision after an official application was finalised, would the court be able to review the decision and set it aside. “That threshold was not reached in this particular matter. I would, for that reason, be loath to interfere at this stage, where there is no application before the Minister, and consequently, no decision made by him on the particular application or that of the legislature.”

Major blow
“It’s of course a major blow and a major disappointment,” Lühl said during a call from South Africa, where he has been since the birth of his twin daughters via surrogacy in March. He said the family will review the full reasons for the judge’s decision before deciding on the way forward.
“In the meantime, it really comes as a shock to many, especially within the larger picture of very harsh resistance to make any progress in terms of equal rights for all,” he added.
Delgado, surrounded by family and friends, said he was deeply saddened by Masuku’s decision. “We were hopeful. What we requested was in the best interests of our children, and it seems that it was not a reasonable request. I am sad and disappointed.”
He said their case had clearly become very sensitive and that the judgment reflected that. “If you think about it, we are not asking for something outrageous; it's a humanitarian request. The fact that this cannot be decided, does not make any sense to me, as a father.”

Overreach questioned
“The judge said he doesn’t want to overreach, but what then do we have courts for? That is precisely what the courts must be. To weigh up the different rights; how fundamental they are. Can they just be thrown out the window because we don’t like the sexual orientation of that couple?” labour and human rights expert Herbert Jauch said after the ruling was handed down.
He added that the judgment’s impact on the rights of the three children of the couple is even more devastating. “There are now three absolutely innocent children who would have had a very comfortable, settled life in Windhoek; their lives all thrown in turmoil.”
Both the twins and their two-year-old toddler brother, all born via the same surrogate, are legally the children of both Delgado and Lühl as per South African birth certificates, where surrogacy is a valid and lawful process subject to court approval.
Jauch added: “I do not understand how a judge can say ‘I don’t want to overreach’. Now who must then adjudicate on a matter like this? It hasn’t done any justice to the family and has not helped clarify this fundamental human rights question.”
Jauch added that the judge’s decision is a deep blow to Namibia’s reputation as a country that protects and upholds the equal rights of all its citizens.

The applicants’ lawyer, Unomwinjo Katjipuka-Sibolile, said the reasoning was “unfortunate.”
She explained that Namibian courts are “the last line of defence if the executive doesn’t uphold your basic constitutional rights. It is the court you turn to. For the court to refuse to act, is very disappointing.”
She underlined that at the time the judgment had not been made public yet, the reasons behind the decision were not yet clear. However, she underlined that at its most basic, the case revolved around the rights of children.
“The bottom line is that it’s in the best interests of the children to be with their family, and the present situation cannot prevail.”
Katjipuka-Sibolile said the judgement is endorsing the Home Affairs’ stance which is keeping the family apart. “The court doesn’t want to overreach, whatever that means. We will have to study the judgment. But the court clearly is satisfied with keeping the status quo: namely a family that is apart.”

Ndiilo Nthengwe of the Namibia Equal Rights Movement emphasised that the judgment reflects Namibia’s “selective morality issue”. She said the ruling showed that Namibia continues to uphold the moral compasses of a predominately conservative, patriarchal, oppressive and homophobic society.
“We are lagging behind. This case, which has not been seen in any country, has shown the world how we treat LGBTQ families.”
Omar van Reenen, also of the Namibia Equal Rights Movement, said it is “sad that the court hasn’t stood on the right side of history and upheld the constitutional mandate of Article 10 – that every Namibian is equal before the law”.
He added that the best interests of the children, which are supreme to any other interests, were also not upheld.
Despite the turmoil in the aftermath of the ruling, Delgado said he was humbled by the widespread support and solidarity he and his family received from Namibians during this fight.
“That’s in line with my experience of living in Namibia for almost 11 years. People are friendly; they have this humanity that we have seen throughout the years.”

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