Family’s battle to reunite continues
21 April 2021 | Justice
The Namibian High Commission in Pretoria on Tuesday briefly shut the door to Namibian Phillip Lühl after he tried to submit a formal application for travel documents for his baby daughters Maya and Paula Delgado Lühl.
Lühl had approached the High Commission a day after Namibian High Court judge Thomas Masuku faulted the lack of an official application as the grounds on which he felt the court could not yet interfere with Home Affair’s refusal to allow the twins to come home.
Instead of being assisted, Lühl was told he “must deal directly with the ministry in Windhoek”.
After a flurry of back and forth enquiries, Lühl was given permission on Wednesday morning to submit the formal application to the Pretoria High Commission after all, following instructions from a government attorney. The application will be couriered to Windhoek for consideration.
Meanwhile, legal experts have criticised Masuku’s judgment, underlining that his ruling failed to take the best interest of the children into account. Instead they say he focused on the lack of a proper paperwork trail.
“A birth certificate issued in SA is proof of parentage. No DNA test is required. The children are Namibian and they ought to come home. The court lost itself in forms instead of dealing with the real substance of the matter. The best interest of the children should have prevailed and not the process of the application for emergency travelling documents,” a well-respected lawyer, who declined to be named for the article, said on Wednesday.
She added that the minister had made it very clear they would refuse an application. “What else is required from the parent when the Minister has everything he needed to say yes to the request?” the lawyer said.
She added that “Namibian courts are not mindful of their constitutional obligation to enhance constitutional rights by paying full attention to the values of the Constitution. Instead our courts are often caught up in legal compliance and thereby undermines the rights of litigants.”
Lawyer Eben de Klerk yesterday agreed that the court “failed in its duty as upper guardian of all minors”.
The Legal Assistance Centre (LAC) described the ruling as “disappointing and disturbing”, and said the court has “neglected its primary legal duty to safeguard the best interests of the children”.
The LAC underlined that “the reality is that Paula and Maya are being discriminated against because of the sex of their parents.”
The LAC team underlined that the case “at the end of the day, is not a gay rights issue so much as a child rights issue. The twins have every right to spend the early days of their lives with both of their loving parents. It is surely in the best interests of the twins and their older brother for the family to be together.”
De Klerk said the the infants have been left in a “deplorable position” and it is not difficult to “suspect that the sex of the parents played a pivotal role in both government's failure to provide travel documents, as well as the ruling in this matter.”
He added: “If so, it is indeed a sad day in our country for both government and our courts being unwilling to protect our constitutional right not to be discriminated against on grounds of sex, in this case also at the expense of minors.”
The LAC also argued that despite the courts focus on the procedures not followed, the ministry has made it “crystal clear” before and during court proceedings, they would not issue the papers to allow the twins to travel home unless a paternity test is undertaken.
Child protection specialist Veronica Theron said the most important aspect to consider in the case is the “best interest of the two children”, emphasising that the circumstances around their birth and parentage should not be the primary issue.
Theron said Namibia’s robust child care and protection act provides that all children “have the right to be cared for and loved by both parents”.
She warned on Wednesday that the first 1 000 days in a newborns life is crucial to their short and long-term development, and to attachment and bonding. She said it is worrying that they are being kept apart from one of their parents, which could impact their future attachment and bonding development.
“Children do not ask to be here. They cannot be punished for their existence and the views of others about their parents. It is in the best interest of a child to be with the parents.”