VIRTUAL RESEARCH ASSISTANT PROJECT
RESEARCH BRIEF PROVIDED:
It involved the question whether an unmarried father has any say or ought
to be consulted in the adoption of his child. It is an opportunity to
continue the discourse on permissible grounds of discrimination and an
opportunity to revisit the reasoning in Mmusi and Others v Ramantele and
Another, particularly the so called rule of practice that courts should be
slow to determine issues on constitutional grounds when it is possible to
do so on non-constitutional grounds.
COUNTRY
Botswana
DATE COMPLETED
3 November 2014
CONTENTS
I.
Introduction ......................................................................................... 3
II. The Mey Case ....................................................................................... 4
III.
Whether the applicant is entitled to the relief sought? ......................... 9
Unmarried Fathers in the 2009 Children’s Act ....................................... 10
The best interests of the child ................................................................ 25
Discrimination ....................................................................................... 30
Inhuman and degrading treatment ......................................................... 42
Right to a fair hearing ............................................................................ 44
IV.
Non-constitutional grounds .............................................................. 47
The Mmusi/Ramantele Decisions .......................................................... 47
In the High Court - Mmusi .................................................................. 49
In the Court of Appeal - Ramantele ......... Error! Bookmark not defined.
V. Concluding remarks ........................................................................... 55
2
I.
INTRODUCTION
To take the power of interrogating the Constitution away from the High
Court (a superior court of record with unlimited original jurisdiction to hear
and determine any criminal and civil cases under any law) is tantamount to
leaving the people of a nation waiting for Superman to solve their very real
problems. In this instance the applicant, Mr. Geofrey Khwarae is challenging
section 4(2)(d)(i) of the Adoption of Children Act, insofar as it does not
require his consent for the adoption of his child just because she was born
out of wedlock. Mr Khwarae does not have time to wait for Superman, his
daughter’s future lies in the balance and there is a very real possibility that
the adoption process that may have been commenced without his
consultation and/or consent could proceed and thereby permanently
remove his hope to access his child. The applicant has framed his petition to
the Court in terms of the Constitutionality of the section concerned and
seeks to establish the rights of unmarried fathers to be granted equal
recognition in the matter of consenting to the adoption of their children.
Not all unmarried biological fathers will have a functional relationship with
their child; but denying loving, functional fathers the opportunity to legally
formalise their parental relationship is patently unfair to the children and
men involved. “If an unwed father is ignored or given much less protection
in the adoption process than other parents, his challenge to this treatment
forces the Court to identify what elements in parent-child relationships
make them worthy of constitutional protection. Only then can the Court
3
decide whether the unwed father's interests are entitled to protection.”1 In
her analysis of court decisions on the issue, Buchanan summarised the
prevailing tendency as follows: “unwed fathers who are presently exercising
or have in the past exercised custodial responsibilities for their children
have a constitutional interest in retaining the relationship established by
their exercise of custody, and this interest is equivalent to the interests of
other parents in their children.”2
II.
THE MEY CASE
In Mey v. July (the Mey case),3 the respondent Joshua July, the biological
father of the little girl referred to as Angel, improperly obtained a High Court
order declaring Angel to be a child in need of care when he discovered that
her adoptive mother (a South African national) sought to leave the country
with her. The child was removed from her home and placed amongst
strangers at Child Line Botswana. The respondent was then given
supervised access to the child, privileges that he had not previously enjoyed
since he had no ongoing interaction with the child prior to that time. As a
result of his appeals to the court, the little girl known as Angel was removed
from her parents and her brother. Yet, as Lesetedi JA rightly pointed out: “it
was never shown at any stage that these interim orders and the removal of
Elizabeth Buchanan (1984) “The Constitutional Rights of Unwed Fathers Before and After
Lehr v. Robertson” 45 Ohio State Law Journal 313, 318.
1
2
Buchanan, n1 above, 333.
3
CACGB-134-13, High Court Case No. UAHGB000072-12 (unreported).
4
the child from its legal parent or her guardian was in the best interest of the
minor child.”[Para 47].
It is noteworthy that Lesetedi JA mentions the lack of a bond or relationship
between the respondent and his biological daughter.
“[I]t is evident from the respondent’s affidavit … that he
had no bond with Angel who was now four years old. He
had only seen the child once or twice in its first year of life
but had not seen the child at any stage thereafter. … He
had at no time assisted the appellant in any way in
upbringing the child… he never took any legal steps to
assert a right of access to the child until the last moment
when he heard that the appellant was relocating from the
jurisdiction.” [Para 13].
In terms of his application for the rescission of the adoption the court
correctly pointed out that Mr July would have had to show that “he was a
parent of the child as contemplated under Section 8(1)(a) of the [Adoption]
Act and secondly, that the order of the adoption should not have been made
without his consent. As pointed out earlier, the Adoption Act did not require
his consent, so that the second requirement could not be shown. Since he
based his rights on the Children’s Act No. 8 of 2009, he still had to show
that he was a parent whose consent was required in terms of that Act.”
[Para 60]
The Court pointed out that:
"Under section 121 of the current Children's Act, the
repealed Act is deemed for those purposes to have been
valid and to continue until the adoption was finalized.
5
Under the repealed Act there is no definition of a parent
and in terms of the common law the consent of the father
of a child born out of wedlock has no parental rights over
that child. The new Children's Act No. 8 of 2009 does not
in any of its provisions require the consent of the
biological father of a child born out of wedlock to be a
condition precedent to the adoption of the child. The Act
gives such father greater rights of involvement in the
child's upbringing and outlines in detail his duties. To that
extent it does not conflict with or override the Adoption
Act. What flows from the Children's Act of 2009 is that the
father would now expect to be consulted if he had
hitherto involved himself in the life of the child. His
views and the nature and extent of his involvement in the
child's welfare and upbringing would then be factors to be
taken into account in deciding the totality of every
relevant consideration whether the adoption would be in
the child's best interests." [Para 61, emphasis added].
The court determined that the only recourse (aside from showing that he
had locus standi in terms of law to bring the rescission of adoption
application if his consent were necessary before the adoption order was
made) would have been for the respondent to set out why the adoption was
to the detriment of the child. None of these averments were made in the
affidavits and for that reason alone he ought to have been non-suited to
seek the reliefs he sought.
The court ruled that in all matters involving the welfare of minor children
“the court should always be astute to ensure that there are always
compelling reasons, not mere unsupported allegations by a party to the
litigation who has not yet established a prima facie right to custody of the
child, advanced to interrupt the child’s present situation or circumstance. A
6
matter such as the present requires to be approached with caution to avoid
the abuse of the judicial process by a litigant to gain an unfair advantage
over another party for reasons which have little to do with the best interests
of the minor child.” In closing the ruling the court referred once again to the
lack of parental interest that the respondent had shown prior to launching
the “purported appeal”:
“for three years the respondent remained supine and
made no attempt to assert his legal rights to have access
to and bond with the minor child. This was the time at
which the child was opening its eyes to the world, and for
the respondent to later after the passage of several years
seek to assert his rights on urgency, thereby disrupting
the child’s ordered life for his own convenience without
demonstrating that the child’s then situation was
anything but well ordered and stable, was opportunistic
and an abuse of judicial process.”[Para 78]
In this way the Court of Appeal once more underscored the primacy of the
best interests of the child. However, the Court also introduced the possibility
for an unmarried father to assert and obtain recognition of his legal rights
as a parent. In essence the Court relies upon the enhanced role awarded to
fathers under the Children’s Act of 2009, which would not have been
applicable to the respondent whose matter commenced prior to the Act. In
its lieu the Court points to the lack of an effort to forge a relationship with
his daughter. This view is suggestive of the approach that the American
Courts have taken in establishing that where the unmarried father can show
that there was a relationship with the child, there arises a right to
parenthood that is worthy of constitutional protection.
7
“When unwed fathers have voluntarily failed to perform
the custodial responsibilities that give rise to
constitutional protection for parental rights, the state need
not consider their interests because they are not of
constitutional stature. Sometimes, however, the father
does develop a relationship with his child that evidences
a full commitment to all parental responsibilities, but
cannot assume all of the responsibilities because the
mother's interests conflict with his. Such a father cannot
rely on a claim to equal treatment because his relationship
with his child is not the same as that of other parents.
Nevertheless, consideration of the values underlying
constitutional protection for parent-child relationships
leads to the conclusion that such a father's relationship is
a protected one.”4
The key distinction between the Mey case and the Khwarae situation is that
the adoption proceedings in the Mey case were commenced before the
Children's Act of 2009 came into force. The respondent had attempted to
rely upon the definition of parent provided in the 2009 Act as the grounds
for seeking relief, in an attempt to show that his consent was required for
the adoption to take place. The Court decreed that this approach was
erroneous for two reasons: firstly that the adoption proceedings commenced
in early 2009, before the commencement of the Children's Act on 19 June
2009; and secondly, under the Children's Act of 2009 he could be consulted
if he was involved in the child's life but his consent was still not required.
[Paras 61-62].
The Court reiterates the lack of the need for the unmarried father’s consent
for an adoption to occur and avers that instead that the Children’s Act
4
Buchanan, n 1 above, 351.
8
confers a right to have been consulted where the father was involved in the
child’s life. It is this second point that has been raised by the Attorney
General. It is opined that the Court’s position highlights the existence of due
process rights that are established under the provisions, objectives and
spirit of the Children’s Act. The nature and the scope of the father’s right to
be consulted must be explored. Even when the minimum acceptable
standard is consultation, this consultation must be in good faith and with
the intention of substantially addressing the concerns of the unmarried
father whose child’s future is at issue.5
III.
WHETHER THE APPLICANT IS ENTITLED TO THE
RELIEF SOUGHT?
The applicant is challenging Section 4(2)(d)(i) of the Adoption of Children
Act, insofar as it does not require his consent for the adoption of his child
just because she was born out of wedlock. In his arguments, the applicant
seeks to rely upon three constitutional protections – freedom from
discrimination (section 15); freedom from inhuman and degrading treatment
under (section 7); and, the right to a fair hearing (section 10(9)). His second
argument is that section 4(2)(d)(i)
of the Adoption Act conflicts with the
Children’s Act of 2009 and based on the terms of the Children’s Act, Section
Internationally Courts have debated the right to consultation within the context of
Aboriginal lands and have held that the right to be consulted may in some cases require the
full consent of the Aboriginal peoples whose lands are at issue (see Delgamuukw v. British
Columbia [1997] 3 S.C.R. 1010; Sonia Lawrence & Patrick Mackelm (2000) “From
consultation to reconciliation: Aboriginal rights and the Crown’s duty to consult” 79
Canadian Bar Review 252)
5
9
4(2)(d)(i) should require the father’s consent to adoption subject to the best
interest of the child.
UNMARRIED FATHERS IN THE 2009 CHILDREN’S ACT
The progressive drafting of the Children's Act of 2009 recognises the
unmarried father as a parent and accedes that there is a relationship
between him and his offspring - with the exception of those children sired
through rape or incest. The current Children’s Act with its enhanced
acknowledgment of the parental role of unmarried biological fathers would
seem to suggest that some biological fathers hold protected rights regarding
the parent-child relationship. Especially as seen from the perspective of the
child and their best interests which are to be considered paramount in all
decisions concerning children.
The Children’s Act defines the parent to include biological parents (no
distinction is made on the basis of marital status) with the exception of
those biological fathers whose children were sired through an act of rape or
incest with the biological mother. The stated objectives of the Act include
acknowledgement of the “primary responsibility of parents … to care for and
protect children, and to support and assist them in carrying out that
responsibility.” 6 The issue of discrimination arises in the context of the
child, the guiding principles of the Children’s Act prohibit decisions or
actions whose result or likelihood is to discriminate against the child on the
basis of their parents or any other status – this prohibition feasibly extends
6
Section 4(d).
10
to discrimination upon the basis of so-called illegitimacy. The guiding
principles also vest the primary responsibility for safeguarding and
promoting the child’s wellbeing in the hands of the parents.7
The Act contains a Bill of Child Rights to supplement the rights set out in
Chapter II of the Constitution. These rights include the right to a birth
certificate indicating the name and particulars of the biological father
“whether the child is born in or out of wedlock.”8 Most powerful in relation
to Mr Khwarae is the right enshrined in section 13 of the Children’s Act: the
child’s right to know and be cared for by both biological parents; and the
corresponding duties that the Act places upon the biological parents under
section 27: the primary duty being to care for and maintain a child.
Section 28 goes further and outlines the rights of every parent, including
those of the unmarried father, these rights (subject to the best interests of
the child) include the right to: have the child live with them; be involved in
the child’s upbringing; and to participate in court and other proceedings
relating to his child. The Children’s Act has established that the unmarried
father may no longer be categorically excluded from the legal definitions of
"parent" and thus must participate in legal proceedings concerning the
future of his child.
Although there has been some speculation as to the relevance of
comparative case law in deciding local cases, there is much to be learned
7
Sections 7(a) & 7(c).
8
Section 12(4)
11
from the ways in which Courts around the world have grappled with similar
judicial cases. Whilst keeping clear consideration of the local context within
which the facts of the case arise. Currently, unmarried fathers in England
receive
protection
only
when
they
embrace
fatherhood
or
express
commitment to their children’s mothers. The general rule is that where a
family tie exists between parent and child, then the state must act in a
manner that allows that tie to be developed. Failure to do so will amount to
a breach of article 8 of the European Convention on Human Rights (the
European Convention).
Article 8 of the European Convention recognises the right to respect for
family life. The European Court of Human Rights (ECHR) has interpreted the
fundamental right of Article 8 to be access of a family member to children,
opining that “the mutual enjoyment by parent and child, as well as by
grandparent and child, of each other’s company constitutes a fundamental
element of family life, and domestic measures hindering such enjoyment
amount to an interference with the right protected by Article 8 of the
Convention.” In other words, Article 8, incorporated into English law,
protects parents’ and grandparents’ access to children.9
There are a number of cases that illustrate the point in relation to
unmarried fathers and adoption. In Keegan v Ireland10 an unmarried couple
living together planned to have a child. Shortly after the child was conceived
Maragaret Ryznar (2009) “Two to tango, one in limbo: A comparative analysis of
fathers’rights in infant adoptions” 47 Duquesne Law Review 89, 102.
9
10
(1994) 18 EHRR 342.
12
the relationship broke down. The father saw his baby once. The child was
placed for adoption without his knowledge or consent. He applied to be
appointed the child’s guardian, but by the time his application came to be
decided the child had formed bonds with the prospective adopters and could
not be moved without damage to her welfare. The ECHR considered that the
relationship between the parents, and hence between the father and child
had the hallmark of family life. The state was required to act in a manner
calculated to enable the tie between parent and child to be developed. Legal
safeguards were required to render possible the child’s integration with her
family. The Court held that secret placement of a child for adoption
amounted to an interference with the father’s right to respect for family life.
No reasons relevant to the welfare of the child had been advanced to justify
such a departure from the principles that governed respect for family ties.
S. v The Adoption Board:11 the Court held that in establishing whether family
life exists as between a natural father and his child it is apparent that the
Court will adopt a pragmatic approach in identifying the necessary personal
ties. If this relationship exists, a very high threshold must be reached to
demonstrate that those ties have been extinguished by subsequent events. If
a natural father who enjoys family life with his child is deprived of any
participation in adoption proceedings this may or may not result in a finding
of a breach of Article 8. It will have to be established, in the context of the
specific case, whether such a decision to exclude him was “in accordance
with the law”, pursued a “legitimate aim” and whether it was “necessary in a
11
[2009] IEHC 429.
13
democratic society”, in the sense of being a proportionate measure in the
circumstances. It is clear that a child’s interests may override that of a
natural parent.
It appears that in the U.K. a high threshold must be met before the
participation of a natural father is ruled out. The first step is to determine
whether family life under Article 8 of the Convention exists as between the
father and the child. A balancing exercise is then undertaken weighing the
rights of the mother, father and the child or children of that relationship. It
is clear that there may be instances where it would be inappropriate to
notify him or to join him to the proceedings. However, these instances
appear to be extreme cases. 12
In Re H; Re G (Adoption: Consultation of Unmarried Fathers),13 in the first
case, the parents had had a relationship, including cohabitation, which had
lasted for several years and the father had shown continuing commitment to
the elder child. The father was therefore entitled to respect for a family life
with the child under Art 8(1) of the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950. The court held that to
place the child for adoption without notice to the father would prima facie be
in breach of this right, and in accordance with Art 6(1) and under r 15(3) of
the Adoption Rules 1984, the father should be given notice and made a
respondent with the opportunity to be heard. In contrast, in the second
case, the facts were less strong. The parents had never cohabited and their
12
13
S. v The Adoption Board [2009] IEHC 429, para 8.14
[2001] 1 FLR 646.
14
relationship did not have sufficient constancy to show de facto family ties.
Consequently, the relationship did not come within the concept of family life
within Art 8 and the father therefore had no right to respect for family life. It
was not necessary for him to be given notice or joined as a respondent to the
proceedings.
The English Courts placed significance on the relationship
between the parents to establish the existence of family ties.
The United States Supreme Court has protected fathers’ legal rights mostly
through the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. Although the parent-child relationship is therefore recognised
to merit protection, this protection is conditioned on certain specific
circumstances that trigger it.14 The legislative response to the conundrum
has been to establish putative father registries, state-specific databases that
allow men to register the names of their sexual partners so as to receive
notification if these women both become pregnant and place their babies for
adoption.15 Generally in the USA, the father's status as the biological parent
of the child is not enough to grant him a protected parental interest. He
must also have displayed, at the earliest possible moment, an interest in
taking responsibility for his child, and he must have acted upon that
interest in a timely manner. Essentially, he must have established a
relationship with the child to the greatest extent possible under the
14
Ryznar, n 9 above, 90.
15
Ryznar, n 9 above, 95.
15
circumstances. It is this parent-child bond and nothing less that, according
to the Court, deserves constitutional protection.16
The Courts in the United States have grappled with the question of the
rights of putative fathers. In the 1972 case of Stanley v. Illinois, 17 Joan
Stanley lived with Peter Stanley intermittently for 18 years, during which
time they had three children. When Joan Stanley died, Peter Stanley lost not
only her but also his children. Under Illinois law, the children of unwed
fathers become wards of the State upon the death of the mother.
Accordingly, upon Joan Stanley's death, in a dependency proceeding
instituted by the State of Illinois, Stanley's children were declared wards of
the State and placed with court-appointed guardians. Stanley appealed,
claiming that he had never been shown to be an unfit parent and that since
married fathers and unwed mothers could not be deprived of their children
without such a showing, he had been deprived of the equal protection of the
laws guaranteed him by the Fourteenth Amendment. The Supreme Court
held that the State of Illinois was barred, as a matter of both due process
and equal protection, from taking custody of the children of an unwed
father, absent a hearing and a particularised finding that the father was an
unfit parent. The Court concluded, on the one hand, that a father's interest
in the "companionship, care, custody, and management" of his children is
"cognizable and substantial," at 651-652, and, on the other hand, that the
State's interest in caring for the children is "de minimis" if the father is in
Karin Dwelle (2002) “Adoption without consent: How Idaho is treading on the
constitutional rights of unwed fathers. Comment” 39 Idaho Law Review 207, 215.
16
17
405 U.S. 645 (1972).
16
fact a fit parent, at 657-658.18 Stanley’s primary role in the upbringing of
the three children in question was a crucial component in establishing the
existence of a protected interest. Thus highlighting the importance, in the
Court's estimation, of the already established parent-child relationship.19
In another key US case on the matter, Quilloin v. Walcott the issue was the
constitutionality of Georgia's adoption laws as applied to deny an unwed
father authority to prevent adoption of his illegitimate child. The child was
born in December 1964 and had been in the custody and control of his
mother, appellee Ardell Williams Walcott, for his entire life. The mother and
the child's natural father, appellant Leon Webster Quilloin, never married
each other or established a home together, and in September 1967 the
mother married appellee Randall Walcott. In March 1976, she consented to
adoption of the child by her husband, who immediately filed a petition for
adoption. Appellant attempted to block the adoption and to secure visitation
rights, but he did not seek custody or object to the child's continuing to live
with appellees. Although appellant was not found to be an unfit parent, the
adoption was granted over his objection.
The Appellant contended that even if he was not entitled to prevail as a
matter of due process, principles of equal protection required that his
authority to veto an adoption be measured by the same standard that would
In Stanley the dissenting judgement of Mr Chief Justice Burger pointed out that the
Supreme Court had decided the case on an issue that was never raised in the lower courts
“No due process issue was raised in the state courts; and no due process issue was decided
by any state court” at 659.
18
19
Dwelle, n 16 above, 215.
17
have been applied to a married father. In particular, appellant asserted that
his interests were indistinguishable from those of a married father who is
separated or divorced from the mother and is no longer living with his child,
and therefore the State acted impermissibly in treating his case differently.
The Supreme Court held that
... the appellant's interests are readily distinguishable
from those of a separated or divorced father, and
accordingly believe that the State could permissibly give
appellant less veto authority than it provides to a married
father.
Although appellant was subject, for the years prior to
these proceedings, to essentially the same child-support
obligation as a married father would have had, compare §
74-202 with § 74-105 and § 30-301, he has never
exercised actual or legal custody over his child, and thus
has never shouldered any significant responsibility with
respect to the daily supervision, education, protection, or
care of the child. Appellant does not complain of his
exemption from these responsibilities and, indeed, he
does not even now seek custody of his child. In contrast,
legal custody of children is, of course, a central aspect of
the marital relationship, and even a father whose
marriage has broken apart will have borne full
responsibility for the rearing of his children during the
period of the marriage. Under any standard of review, the
State was not foreclosed from recognizing this difference
in the extent of commitment to the welfare of the child.
For these reasons, the court concluded that the relevant laws, as applied in
this case, did not deprive appellant of his asserted rights under the Due
Process and Equal Protection Clauses.
18
In the case of Caban v. Mohammed,
20
the appellant, Abdiel Caban,
challenged the constitutionality of § 111 of the New York Domestic Relations
Law (McKinney 1977), under which two of his natural children were adopted
by their natural mother and stepfather without his consent. Section 111 of
the N. Y. Dom. Rel. Law (McKinney 1977) provides in part that "consent to
adoption shall be required as follows: . . . (b) Of the parents or surviving
parent, whether adult or infant, of a child born in wedlock; [and] (c) Of the
mother, whether adult or infant, of a child born out of wedlock. . . ." The
statute makes parental consent unnecessary, however, in certain cases,
including those where the parent has abandoned or relinquished his or her
rights in the child or has been adjudicated incompetent to care for the child.
Absent one of these circumstances, an unwed mother has the authority
under New York law to block the adoption of her child simply by withholding
consent. The unwed father has no similar control over the fate of his child,
even when his parental relationship is substantial—as in this case. He may
prevent the termination of his parental rights only by showing that the best
interests of the child would not permit the child's adoption by the petitioning
couple.
The Supreme Court found the statute to be unconstitutional, as the
distinction it invariably makes between the rights of unmarried mothers and
the rights of unmarried fathers has not been shown to be substantially
related to an important state interest. The court took the view that genderbased distinctions "must serve important governmental objectives and must
20
441 US 380 - Supreme Court 1979.
19
be substantially related to achievement of those objectives" in order to
withstand judicial scrutiny under the Equal Protection Clause.
“Even if unwed mothers as a class were closer than
unwed fathers to their newborn infants, this
generalization concerning parent-child relations would
become less acceptable as a basis for legislative
distinctions as the age of the child increased. The present
case demonstrates that an unwed father may have a
relationship with his children fully comparable to that of
the mother. Appellant Caban, appellee Maria Mohammed,
and their two children lived together as a natural family
for several years. As members of this family, both mother
and father participated in the care and support of their
children.[7] There is no reason to believe that the Caban
children—aged 4 and 6 at the time of the adoption
proceedings—had a relationship with their mother
unrivaled by the affection and concern of their father. We
reject, therefore, the claim that the broad, gender-based
distinction of § 111 is required by any universal
difference between maternal and paternal relations at
every phase of a child's development.” At 389.
The Supreme Court held that the effect of New York's classification was to
discriminate against unwed fathers even when their identity was known and
they had manifested a significant paternal interest in the child. “The facts of
this case illustrate the harshness of classifying unwed fathers as being
invariably less qualified and entitled than mothers to exercise a concerned
judgment as to the fate of their children. Section 111 both excludes some
loving fathers from full participation in the decision whether their children
will be adopted and, at the same time, enables some alienated mothers
arbitrarily to cut off the paternal rights of fathers. We conclude that this
undifferentiated distinction between unwed mothers and unwed fathers,
20
applicable in all circumstances where adoption of a child of theirs is at
issue, does not bear a substantial relationship to the State's asserted
interests.” At 394.
In Lehr v. Robertson,21 the question presented was whether New York has
sufficiently protected an unmarried father's inchoate relationship with a
child whom he has never supported and rarely seen in the two years since
her birth. The appellant, Jonathan Lehr, claimed that the Due Process and
Equal Protection Clauses of the Fourteenth Amendment, as interpreted in
Stanley v. Illinois, and Caban v. Mohammed, gave him an absolute right to
notice and an opportunity to be heard before the child may be adopted. The
Court disagreed. The State of New York maintains a "putative father
registry."22 The court took the view that a man who files with that registry
demonstrates his intent to claim paternity of a child born out of wedlock and
is therefore entitled to receive notice of any proceeding to adopt that child.
Before entering Jessica's adoption order, the Ulster County Family Court
21
463 US 248 - Supreme Court 1983.
The putative father registry is a state level legal option for unmarried males to document
through a notary public any female they engage with in intercourse, for the purpose of
retaining parental rights for any child they may father. “Despite how reasonable this system
might sound, the putative father registry has a number of significant flaws. First of all, few
men are actually aware that such registries even exist and are, thus, unlikely to avail
themselves to the “protection” they afford. More problematic, however, is the fact that the
registries are state specific. Thus, to adequately protect himself, the putative father must
know not the state in which the mother resides but the state where the she plans to give
the child up for adoption. As discussed below, a mother can simply flee her state of
residence and travel to another state to surrender her child for adoption. Unless the
putative father actually registered in that specific state, he will not be entitled to notice of
any adoptions concerning the child. Additionally, any ability he might have had to challenge
the adoption is now permanently foreclosed.” Michael J Higdon (2014) “Marginalized fathers
and demonized mothers: A feminist look at the reproductive freedom of unmarried men”
Legal Studies Research Paper Series, Research Paper #234, 20.
22
21
had the putative father registry examined. Although appellant claimed to be
Jessica's natural father, he had not entered his name in the registry.
In addition to the persons whose names are listed on the
putative father registry, New York law requires that notice
of an adoption proceeding be given to several other
classes of possible fathers of children born out of wedlock
— those who have been adjudicated to be the father,
those who have been identified as the father on the child's
birth certificate, those who live openly with the child and
the child's mother and who hold themselves out to be the
father, those who have been identified as the father by
the mother in a sworn written statement, and those who
were married to the child's mother before the child was
six months old. Appellant admittedly was not a member of
any of those classes. He had lived with appellee prior to
Jessica's birth and visited her in the hospital when
Jessica was born, but his name does not appear on
Jessica's birth certificate. He did not live with appellee or
Jessica after Jessica's birth, he has never provided them
with any financial support, and he has never offered to
marry appellee.
The court took a strong position upon this lack of parental interest:
The difference between the developed parent-child
relationship that was implicated in Stanley and Caban,
and the potential relationship involved in Quilloin and this
case, is both clear and significant. When an unwed father
demonstrates a full commitment to the responsibilities of
parenthood by "com[ing] forward to participate in the
rearing of his child," Caban, 441 U. S., at 392, his interest
in personal contact with his child acquires substantial
protection under the Due Process Clause. At that point it
may be said that he "act[s] as a father toward his
children." Id., at 389, n. 7. But the mere existence of a
biological link does not merit equivalent constitutional
protection. The actions of judges neither create nor sever
22
genetic bonds. "[T]he importance of the familial
relationship, to the individuals involved and to the society,
stems from the emotional attachments that derive from the
intimacy of daily association, and from the role it plays in
`promot[ing] a way of life' through the instruction of
children . . . as well as from the fact of blood relationship."
Smith v. Organization of Foster Families for Equality and
Reform, 431 U. S. 816, 844 (1977) (quoting Wisconsin v.
Yoder, 406 U. S. 205, 231-233 (1972)).
The significance of the biological connection is that it
offers the natural father an opportunity that no other male
possesses to develop a relationship with his offspring. If
he grasps that opportunity and accepts some measure of
responsibility for the child's future, he may enjoy the
blessings of the parent-child relationship and make
uniquely valuable contributions to the child's development.
If he fails to do so, the Federal Constitution will not
automatically compel a State to listen to his opinion of
where the child's best interests lie. At 261-263.
In this case, the Court clarified that it was not assessing the constitutional
adequacy of New York's procedures for terminating a developed relationship.
Appellant had never had any significant custodial, personal, or financial
relationship with Jessica, and he did not seek to establish a legal tie until
after she was two years old. Instead they were concerned only with whether
New York has adequately protected his opportunity to form such a
relationship. The existence or nonexistence of a substantial relationship
between parent and child is a relevant criterion in evaluating both the rights
of the parent and the best interests of the child. Because the appellant, like
the father in Quilloin, had never established a substantial relationship with
his daughter, the New York statutes at issue in this case did not operate to
deny appellant equal protection.
23
In the US jurisprudence, “Constitutional protection for a parent's right to
maintain a relationship with his or her child does not derive from some kind
of parental possessory right existing in a vacuum. Rather, the protection is
inextricably entwined with the parent's constant responsibility to care for
the child.” 23 In each of these cases, the father's status as the biological
parent of the child was not enough to grant him a protected parental
interest. He must also have displayed, at the earliest possible moment, an
interest in taking responsibility for his child, and he must have acted upon
that interest in a timely manner. Essentially, he must establish a
relationship with the child to the greatest extent possible under the
circumstances. It is this parent-child bond and nothing less that, according
to the Court, deserves constitutional protection.24
The parent's constitutional right to be with, provide for, and control their
child is closely linked to the parent's duty to provide for the child's physical
and emotional needs. According to Buchanan, the term "custody" has been
used to describe this intermingling of rights and duties. In her analysis, she
concludes: “that the Constitution particularly protects the custodial rights of
biological parents who perform custodial responsibilities has been stated as
a fact and explained in terms of tradition and natural right. That the
Constitution continues to protect parent-child relationships even when
parents no longer perform custodial responsibilities also has been stated as
a fact and has been explained as a recognition that the emotional
23
Buchanan, n 1 above, 319.
24
Dwelle, n 19 above, 215.
24
attachments that arise during a custodial relationship are worthy of
protection even when the custodial aspect of the relationship no longer
exists. Thus, parents who live with, provide for, and form emotional
attachments with their children perform the social function of caring for
children, and their interests are worth protecting. Under this analysis,
unwed fathers who have custodial relationships with their children are
parents whose interests are worth protecting.”25
... argues that the Supreme Court was correct to ground parental rights in a
combination of biology and nurture. In order to determine whether an
unmarried biological father has the right to consent to the adoption of his
offspring, the law should look at his actions with respect to both the
potential child and the mother during her pregnancy as well as after the
birth. Parental rights cannot be decided without considering the complex
web of relationships involved in procreative activity.26
THE BEST INTERESTS OF THE CHILD
The supremacy of this standard has been clearly established in the
legislation and in judicial decisions concerning children, including those
born out of wedlock. In Macheme v Ndlovu
27
the Appeal Court upheld the
judgement of Dingake J dated 6 October 2008 finding the respondent
entitled to certain periods of access to Lorako Macheme, a male child born
on 10 April 2003, of whom the appellant was the mother and the respondent
25
Buchanan, n 1 above, 323.
Mary L Shanley (1995) “Unwed fathers’ rights, adoption and sex equality: GenderNeutrality and the Perpetuation of Patriarchy” 95(1) Columbia Law Review 60, 77.
26
27
(CACLB 035/08) [2009] BWCA 49.
25
is the father. Lord Coulsfield JA (with Tebbutt JP and Foxcroft JA
concurring) held that "the primary standard to be applied in all questions of
guardianship of or access to children, whether their parents are married or
unmarried, is that of the best interests of the child." In Mfundisi v. Kabelo,28
Chatikobo J held: "The predominant approach, shared by all the cases,
seems to be that the illegitimacy of the child is not the compelling reason for
denying access by its father. Rather it is the interest of the child which must
predominate. See also S v. S 1993 (2) S.A. 200 (W) A and B v. S 1993 (2) S.A.
211 (W). In my view, the mere fact that a person is the natural father of his
illegitimate child creates sufficiently close kindredship such as should make
it highly desirable that the father be granted access to the child to enable a
bond of affinity to develop. Any notion of such a father being regarded as a
stranger to his own child is anachronistic and detrimental to the interests of
the child."
The Children’s Act stipulates guiding principles to be used in determining
the best interests of the child. These principles include taking into account
the capacity of the child’s parents to care for and protect the child; and, the
importance of stability and the likely effect on the child of any change or
disruption in the child’s circumstances. 29 Furthermore, no decision or
action shall be taken that would result in the discrimination against any
child on any status, including family; and, the parents of a child have the
28
2003 (2) BLR 129 (HC).
29
Section 6.
26
primary responsibility of safeguarding and promoting the child’s wellbeing.30
In South Africa, the Children’s Act 38 of 2005 contains an extensive list of
factors to be considered when determining the best interests of the child,
including: the nature of the personal relationship between the child and the
parent; the attitude of the parents or specific parent towards the child and
their exercise of parental responsibilities and rights in respect of the child;
and, the likely effect on the child of any separation from either of the
parents.
31
“Section 21 of the Children’s Act awards parental rights and
responsibilities to (in essence) two groups of unmarried fathers as of right.
The first are fathers who were living with the mother at the time of the
child’s birth. The second are those who were not living with the mother, but
who fulfil specified criteria: the father must have consented or successfully
applied to be identified as the child’s father or paid damages under
customary law (which have the effect of identifying him as the child’s father);
he must have contributed or attempted in good faith to contribute to the
child’s upbringing for a reasonable period; and he must have contributed or
attempted in good faith to contribute towards the maintenance of the child
for a reasonable period.”32
30
Section 7.
31
Section 7, “Best interests of the child standard.”
Julia Sloth-Nielsen & Belinda Van Heerden (2014) “The ‘Constitutional Family’:
Developments in South African child and family law 2003-2013” International Journal of
Law, Policy and The Family 1, 14. With regards to adoption proceedings, the consent of the
unmarried biological father of a child is generally required with the exception of situations
where the father:
32
27
The ultimate test for each of the decisions that are taken concerning the
minor child in this and in every matter will be her best interests. The Court
and every decision-making body tasked with her matter must weigh all
choices against this standard. Furthermore, the standard is context-specific
and the court will be influenced to a large extent by the social, political and
economic conditions of Botswana. There is a danger that in using this
standard any rights that Khwarae and other unmarried biological fathers
may seek to rely upon will be defeated by the socio-economic benefits and
stability that adoption might proffer a child. However, this danger is
mitigated by the reinforced message in the Children’s Act that the parent is
to be supported and assisted in their efforts to care for the wellbeing of their
child – this includes granting them primacy in the queue for custodial
relationship with their children.
1. Is incompetent to give consent due to mental illness;
2. Has abandoned the child;
3. Has abused or deliberately neglected the child;
4. Has consistently failed to fulfil his parental duties during the last twelve months;
5. Has been divested of his right to consent by an order of the court; or,
6. Has failed to respond to the notice of adoption within 30 days of service of the
notice.
In the exceptions as laid out in section 236(1) of the Act, his consent is not required (where
the child was born from rape or an incestuous relationship and) unless he has
acknowledged that he is the father of the child. There are four ways whereby a person can
acknowledge that he is the biological father of a child:
1. By giving written acknowledgment that he is the biological father of the child
either to the mother or the clerk of the children’s court before the child reaches
the age of six months;
2. By voluntarily paying maintenance in respect of the child;
3. By paying damages in terms of customary law; or
4. By causing particulars of himself to be entered into the registration of birth of
the child in terms of the relevant sections of the Births and Deaths Registration
Act, 1992
28
The Children’s Act recognises a child as an individual and a member of a
family and a community, with rights and responsibilities appropriate to his
or her age and stage of development. The question of custody and access
affects the future of the child; it therefore seems logical that the views of
children should also be considered in these matters. However, the court
should obviously be able to distinguish between those cases in which the
cchildren of more mature age have shown decided opinions of their own
about where they should live, and those in which one parent is indulging
and encouraging them in the role in which they have been cast, as
adversaries of the other parent in court battles.33 There have been various
approaches used to involve the child’s voice in the decision-making process:
family reports by social workers; reports from child experts (psychologists or
therapists); judicial interview with the presiding judge in chambers; and in
rare instances calling upon the child to give testimony in open court. In
giving meaning to the principle of the best interests of the child, the court
may wish to consider eliciting input from the child involved: bearing in mind
that contemporary understanding of children’s psychological, emotional and
cognitive development should inform the ways in which judges elicit and
evaluate children’s perspectives.34 Even if a child is not considered to have a
clear preference about custody or the adoption process, the child may have
perspectives about family relations that may assist the court in its decision-
Frans Mashilo Mahlobogwane (2010) “Determining the best interests of the child in
custody battles: should a child's voice be considered?” 31(2) Obiter 232, 237.
33
34
Mahlobogwane, n 33 above, 241.
29
making. 35 In this instance the court may be able to gain clarity on the
bond/relationship between Khwarae and his daughter, and that between the
child and the suggested adoptive parent, as seen from her perspective.
DISCRIMINATION
The question that falls to be determined is whether section 15 of the
Constitution allows discrimination on the ground of marital status. Khwarae
contends that the Adoption Act discriminates between him on the basis of
marital status. He is essentially attempting to overcome the marital
presumption that awards parenthood and the rights and the related
responsibilities to married men automatically. Khwarae has assumed
parental duties and held himself out as the child’s father but is precluded
from establishing his legal paternity because he is unable to rebut the
marital presumption. The marital presumption—that the husband of a
child’s mother is the child’s legal father, regardless of whether he is the
child’s biological father—has its roots in old English common law:36
The purpose of the marital presumption is to preserve
familial integrity by ignoring an out of wedlock dalliance.
From an efficiency perspective, the marital presumption
has merit, because the child’s legal father is readily
identified. Unfortunately, a strict application of the
presumption may render some loving, biological and
functional fathers as legal strangers to their children.37
35
Ibid, 244.
Melanie B Jacobs (2012) “Overcoming the marital presumption” 50(2) Family Court
Review 289, 290.
36
37
Jacobs, n 36 above, 290.
30
According to Jacobs, strict adherence to the marital presumption that does
not permit a biological (and, more importantly, a functional) father the
opportunity to rebut the presumption represents one piece of what she calls
the paternity riddle: some willing, ready, and able fathers are denied the
opportunity to legally establish and/or preserve their parental relationship
because of an outdated doctrine. Rather than emphasising parentage by
marriage or parentage by genetics, she proposes that we should emphasise
parentage by function and intention. She suggests that integrating these
newer doctrines within the old paradigm will yield better results for children
and their parents.38
There is need to closely examine the possible impact of the marital
presumption throughout the legislation. Times are changing and with those
changes are marked shifts in the traditional configuration of families. Many
young couples are living together responsibly without being legally married.
It is no longer so shameful in most communities for an unmarried woman to
show her pregnancy or keep her child: “In so complex a society, it is more
difficult, but no less essential, that democratic values prevail. The primary
value is the worth of the human person. It is consistent with this value that
the rights of one person may not be overruled without a hearing, even in the
interests of one more needful. Thus, it follows that the father of the child
born out of wedlock should be considered as a concerned individual.” 39
38
Jacobs, n 36 above, 295.
Rita Dukette & Nicholas Stevenson (1973) “The Legal Rights of Unmarried Fathers: The
Impact of Recent Court Decisions” 47(1) Social Service Review 1, 14.
39
31
The position of the Attorney General is that Section 15(3) is not violated
because the applicant is simply complaining that he is being discriminated
by virtue of being unmarried as opposed to a married man. Consequently, it
is argued that he cannot complain that he is being discriminated on the
basis of sex. However, the underlying feature in section 15 of the
Constitution of Botswana is the failure to treat all persons equally where no
reasonable distinction can be found between those favoured and those not
favoured.40 “The crucial part of this is subsection 3 ... [i]t apparently lists a
fixed category of proscribed distinctions, made with reference to 'race, tribe,
place of origin, political opinions, colour or creed . . .' ... the weakness with
this fixed category approach is that it puts pressure on the courts, in cases
of groups marginally outside the fixed categories, to stretch their powers of
statutory interpretation to its limits.” 41 However the courts have made it
clear that neither the categories nor the derogations contained in section 15
are immutable. In Attorney-General v Dow42 Amissah JP suggests general
guidelines for expanding these categories:
If the categories of groups or classes mentioned in section
15(3) are but examples, where does one draw the line as
to the categories to be included? Of course, treatment to
different sexes based on biological differences cannot be
taken as discrimination in the sense that section 15(3)
proscribes. With regard to the classes which are
protected, it would be wrong to lay down any hard and
fast rules. The vulnerable classes identified in sections 3
Charles Manga Fombad (2004) “The Constitutional Protection against Discrimination in
Botswana” 53(1) The International and Comparative Law Quarterly 139, 141.
40
41
Fombad, n 40 above 143.
42
Appeal Court, 1994 (6) BCLR 1.
32
and 15 are well known. I would add that not only the
classes mentioned in the definition in section 15(3), but,
for example, the class also mentioned in subsection (4)(d),
where it speaks of “community” in addition to “race” and
“tribe” have to be taken as vulnerable. Civilised society
requires that different treatment should not be given to
people wholly or mainly on the ground of membership of
the designated classes or groups.... The only general
criterion which could be put forward to identify the
classes or groups is what to the right thinking man is
outrageous treatment only or mainly because of
membership of that class or group and what the comity of
nations has come to adopt as unacceptable behaviour.
If these guidelines are adopted then it would require examining the
differentiation between married and unmarried men in light of the
provisions of the Adoption Act and determining whether the laws as they
stand represent outrageous treatment or treatment that has been deemed
unacceptable internationally.
In this analysis however, the court would need to be cautious and cognitive
of the very real differences that exist in the lived realities of women and men
as parents. Granting formal equality to unmarried men that expands their
role over the decision-making process concerning their biological children
would have to be achieved in such a manner as to avoid further burdening
women who in practicality bear the brunt of child-rearing duties. Allowing a
blanket differentiation that applies to unmarried biological fathers would
appear to be unacceptable in terms of the progressive realisation of equality
rights for all: it is suggested that the answer lies in a case-by-case
evaluation of the intentional or functional unmarried fathers and an
33
interpretation of the Children’s Act that ensures a bona fide participatory
role in decision making.
An argument has been raised on the grounds of the differentiation between
biological mothers and biological fathers in the relevant laws. It was
essentially brought to the pleadings by the Attorney General who sought to
rely upon the terms of customary law, whereby a child born out of wedlock
belongs to the mother’s family and argued that this is a position that was
also applicable under common law with parental rights and responsibilities
over a child being acquired by birth in lawful wedlock.43
According to Louw, various reasons can be found for the law's preferential
treatment of mothers as legal parents:
(a) It promotes legal certainty. Since, unlike paternity,
maternity could always be established with certainty, it
made sense to allocate parental responsibilities and rights
to the biological mother. In this way, the legal parentage
of the child could, at least as far as the mother was
concerned, be determined whatever the marital status of
The Attorney General argues that in terms of Botswana customary law, a child born out
of wedlock belongs to the mother’s family. The child of an unmarried woman belongs to her
mother’s home. This is a position that reflects the common law, whereby the father of an
illegitimate child had no rights regarding his offspring, and the child lacked the rights
normally bestowed upon a legitimate child, such as the right to inherit from his parents.
The development of customary law came into focus in the Mmusi case, and the present case
presents another opportunity for the court to examine the intent and content of customary
laws. Amissah JP in the Dow case:
43
“Our attention has been drawn to the patrilineal customs and traditions of the Botswana
people to show, I believe, that it was proper for Parliament to legislate to preserve or advance
such customs and traditions. Custom and tradition have never been static. Even then, they
have always yielded to express legislation. Custom and tradition must a fortiori, and from
what I have already said about the pre-eminence of the Constitution, yield to the Constitution
of Botswana. A constitutional guarantee cannot be overridden by custom. Of course, the
custom will as far as possible be read so as to conform with the Constitution. But where this
is impossible, it is custom not the Constitution which must go.”
34
the child's parents. Paternity, as well as legal paternity,
could then be determined with reference to a certain
objectively determinable fact – maternity.
(b) It gives effect to the importance of the mother's
contribution to the child who, in the opinion of the
Constitutional Court in Fraser v Children's Court, Pretoria
North: ... has a biological relationship with the child whom
she nurtures during the pregnancy and often breast-feeds
after birth. She gives succour and support to the new life
which is very direct and not comparable to that of a
father.
(c) Lastly, the automatic allocation of parental
responsibilities and rights to the unmarried mother
affords the mother, as primary caregiver, a certain degree
of autonomy as far as decisions regarding her child are
concerned. This protects her (and, as a consequence,
presumably also the children born out of wedlock) from
the unwarranted and sporadic interference by
"irresponsible" fathers of such children44
She points out that in this manner mothers are entrusted with full rights
and responsibilities because they can give birth whilst fathers are subjected
to a screening process where they have to show necessary commitment to
either the mother or the child. Then and only then will the law accept and
expect them to assume legal rights and responsibilities. Louw argues that
despite the fact that the automatic allocation of parental responsibilities and
rights to all mothers serves a rational purpose, the unfair impact of such an
allocation may still result in unfair discrimination.45
Anne Louw (2010) “The constitutionality of a biological father’s recognition as a parent”
13(3) PER/PELJ 156, 164.
44
45
Louw, n 44 above, 165.
35
On the other hand, some authors contend that the arguments for unmarried
biological fathers to invoke the principle of gender-neutrality are deeply
flawed since they mask a form of male domination under the language of
equality rights. Whilst on the other hand, arguments that privilege maternal
autonomy that rest upon the unmarried mother and fathers different
biological and social relationship to the foetus during pregnancy may
produce unfair results in some cases and enhance the empowerment of
women at the cost of reinforcing gender roles that vest the primary caregiving role for children only with the woman. It is important to bear in mind
that formal equality, as far as parental roles are concerned, will not create
substantive equality for women who may suffer even more if fathers are
automatically given parental responsibilities and rights. The focus of this
argument is on the mother's diminished autonomy as a result of having to
share parental responsibilities and rights with the father of the child. The
concern is that while mothers will still deal with the daily task of parenting,
fathers will acquire the right to interfere with the parenting decisions.46
Shanley concludes that in order to have a right to consent to the adoption of
his child, the unmarried biological father must have acted to assume
responsibility for the child from the earliest possible moment.
47
For Shanley
what is crucial is that parental rights be grounded in specific manifestations
of care, and of demonstrations of parental responsibility.48 Buchanan argues
46
Louw, n 44 above, 166.
47
Shanley, n 26 above, 77.
48
Shanley, n 26 above, 90.
36
for the rights of unmarried fathers but rights that “do not depend on claims
by unwed fathers for equal treatment with other parents whom the state
may favor. The rights derive, rather, from an independent consideration of
the fundamental rights of all parents in their relationships with their
children.”49 Such rights would be recognisable in Botswana, regardless of
the provisions of sections 3 and 15 of the Constitution. These rights are
conferred by the Children’s Act in its expansion of the Constitution. The
articulated goals of the Children’s Act include promoting the wellbeing of
children, families and communities in Botswana; and, acknowledging the
primary responsibility of parents and families to care for and protect
children
AND
to
support
and
assist
them
in
carrying
out
that
responsibility.50
In the South African case of Fraser v. Children's Court Pretoria North and
Others51 the question of the constitutionality of S 18(4)(d) of the Child Care
Act 74 of 1983 was referred for determination to the Constitutional Court in
terms of s 102(1) of the Constitution. S 18(4)(d) of the Child Care Act 74 of
1983 provided that a children’s court to which application for an order of
adoption is made shall not grant the application unless it is satisfied that
consent to the adoption has been given by both parents of the child, or, if
the child is illegitimate, by the mother of the child only. The Court held that
the discrimination entailed by the section could not be justified. It unfairly
49
Buchanan, n 1 above, 382
50
Section 4.
51
[1997] ZACC 1.
37
discriminated against the fathers of certain children on the basis of their
gender or their marital status. Every mother was given an automatic right to
withhold her consent to the adoption of the child while this right was denied
to every unmarried father. An order declaring the section unconstitutional
was made whereas order was made to allow the section to survive pending
correction by parliament.
Mahomed DP pointed out that:
The effect of section 18(4)(d) of the Act is that the consent
of the father would, subject to section 19, be necessary in
every case where he is or has been married to the mother
of the child and never necessary in the case of fathers
who have not been so married. In the context of certain
laws there would often be some historical and logical
justification for discriminating between married and
unmarried persons and the protection of the institution of
marriage is a legitimate area for the law to concern itself
with. But in the context of an adoption statute where the
real concern of the law is whether an order for the
adoption of the child is justified, a right to veto the
adoption based on the marital status of the parent could
lead to very unfair anomalies. The consent of a father,
who after his formal marriage to the mother of the child
concerned, has shown not the slightest interest in the
development and support of the child would, subject to
section 19, always be necessary. Conversely a father who
has not concluded a formal ceremony of marriage with the
mother of the child but who has been involved in a stable
relationship with the mother over a decade and has
shown a real interest in the nurturing and development of
the child, would not be entitled to insist that his consent to
the adoption of the child is necessary. The consent of the
mother only would, subject to section 19, be necessary
even if the only reason why the relationship between the
38
couple has not been solemnised through a marriage is
that the mother refuses to go through such a ceremony,
either on the ground that she has some principled
objection to formal marriages or on some other ground.
[Para 26].
… A child born out of a union which has never been
formalised by marriage often falls into the broad area
between the two extremes expressed by the case where
he or she is so young as to make the interests of the
mother and the child in the bonding relationship obvious
and a child who is so old and mature and whose
relationship with the father is so close and bonded as to
make protection of the father-child relationship equally
obvious. There is a vast area between such anomalies
which needs to be addressed by a nuanced and balanced
consideration of a society in which the factual
demographic picture and parental relationships are often
quite different from those upon which “first world”
western societies are premised; by having regard to the
fact that the interest of the child is not a separate interest
which can realistically be separated from the parental
right to develop and enjoy close relationships with a child
and by the societal interest in recognising and seeking to
accommodate both.[Para 29]
In addition section 15(4) contains a claw back clause specifying that the
protections of section 15 do not extend to any law that makes provision with
respect to adoption or other matters of personal law. The Attorney General
argues that in this instance, we are dealing with adoption, one of those
instances specifically prohibited by Section 15 (4) (c). However, the
derogations listed in section 15 are not beyond reproach and have to be
tested against the parameters set out in the umbrella provision of section 3.
39
Lesetedi JA reiterated the holding in Dow that a derogation as contained in
section 15(4) does not permit unchecked discrimination which is not
consistent with the core values of the constitution, stating:
“Where there is a derogation the Court must closely
scrutinize it, give it a strict and narrow interpretation and
test whether such discrimination is justifiable having
regard to the exceptions contained in Section 3 of the
Constitution. It is only when the Court is satisfied that a
discrimination passes that test that the Court can find
that the derogation is constitutionally permissible.
... the derogations contained in Section 15(4) of the
Constitution are not unchecked. They must be rational
and justifiable either as being intended to ensure that the
rights and freedoms of any individual do not prejudice the
rights and freedoms of others or as being in the public
interest.” 52
If the distinction between men based upon their marital status is
determined to be discriminatory then it falls to interrogate whether the
derogation concerning adoption is rational and justifiable.
The Children’s Act changes the distinction made between married and
unmarried men as suggested in the relevant section of the Adoption Act
because it allows for consultation of the biological father, especially where
the father in question has taken on the rights and duties that accord to a
parent. The Children’s Act reverses the traditional common law and even
the customary law position that considered the unmarried mother as the
52
Ramantele case, paras 71-72.
40
sole responsible parent, and establishes the requirement that the unmarried
father be involved in any decision-making processes regarding his children.
In the words of Mahomed DP in the Fraser case: “What is evident from the
modern legislative and judicial responses to the problems associated with
adoption is the recognition of the fact that in determining the rights of
fathers to withhold their consent to the adoption of their children it may be
too simplistic merely to draw a distinction between married and unmarried
fathers, and it may equally be too simplistic to discriminate between the
mothers and fathers of children born in consequence of a union not
formalized by marriage. Unmarried fathers, by the acceptance of their
paternity and parental responsibility, may often be qualified to make the
most active inputs into the desirability of such an adoption order and in
certain circumstances they may legitimately wish to withhold their consent
to such an adoption order. It is equally evident that not all unmarried
fathers are indifferent to the welfare of their children and that in modern
society stable relationships between unmarried parents are no longer
exceptional. The statutory and judicial responses to these problems are
therefore nuanced having regard to the duration of the relationship between
the parents of the children born out-of-wedlock, the age of the child sought
to be given up for adoption, the stability of the relationship between the
parents, the intensity or otherwise of the bonds between the father and the
child in these circumstances, the legitimate needs of the parents, the
reasons why the relationship between the parents has not been formalised
41
by a marriage ceremony and generally what the best interests of the child
are.” [Para 43].
The Court is now tasked with striking a balance between recognising those
unmarried fathers who wished to assume an active role as parents yet not
giving rights to others who had not shown such commitment. If a protected
right arises based upon genetics alone then it would confer significant power
to even a sperm donor, there ought to be more to it than that. Protecting the
substantive rights of women would meet the test of section 3 of the
Constitution as advanced by Amissah JP in the Dow case and reinforced in
the more recent decision by the Appeal Court in the Ramantele ruling for
upholding the applicable derogation under section 15.
INHUMAN AND DEGRADING TREATMENT
Generally used to capture levels of human suffering that do not amount to
torture, treatment or punishment amounts to cruel, inhuman and degrading
treatment (CIDT) when it involves mental and physical ill-treatment that has
been intentionally inflicted by, or with the consent or acquiescence of, the
state authorities. CIDT refers to “ill-treatment that does not have to be
inflicted for a specific purpose, but there does have to be intent to expose
individuals to the conditions which amount to or result in the ill-treatment.
Exposing a person to conditions reasonably believed to constitute illtreatment will entail responsibility for its infliction. Degrading treatment
may involve pain or suffering less severe than for torture or cruel or
inhuman treatment and will usually involve humiliation and debasement of
42
the victim. The essential elements which constitute ill-treatment not
amounting to torture would therefore be reduced to:

Intentional exposure to significant mental or physical pain or
suffering;

By or with the consent or acquiescence of the state authorities
It is often difficult to identify the exact boundaries between the different
forms of ill-treatment as this requires an assessment about degrees of
suffering that may depend on the particular circumstances of the case and
the characteristics of the particular victim. In some cases, certain forms of
ill-treatment or certain aspects of detention which would not constitute
torture on their own may do so in combination with each other. Ill-treatment
is, however, prohibited under international law and even where the
treatment does not have the purposive element or, as far as degrading
treatment is concerned, is not considered severe enough (in legal terms) to
amount to torture, it may still amount to prohibited ill-treatment.”53
The Courts in Botswana have dealt with cases on this ground, mainly within
the context of imprisonment and the death penalty, and it has been
established that: “what constitutes inhuman and degrading punishment has
been defined as punishment which though not necessarily cruel, does not
Physicians for Human Rights (2010) “PHR Toolkits: Cruel Inhuman & Degrading
Treatment & Punishment (CID)” <http://phrtoolkits.org/toolkits/istanbul-protocol-modelmedical-curriculum/module-1-international-legal-standards-overview/torture/cruelinhuman-degrading-treatment-punishment-cid/> (accessed 29 October 2014).
53
43
accord with human dignity.”54 As to the gravitas of the proscribed actions,
the Court stressed that the “... elements of torture, and inhuman or
degrading punishment or other treatment are pregnant with meaning and
are powerful concepts reaching down to the very depths of a person’s
humanity and to his right not to be treated in a manner which robs him of
his human dignity and worth.”55 In order to show that he has been made to
suffer “inhuman or degrading punishment or other such treatment,”
Khwarae would have to show that he was intentionally exposed to mental or
physical suffering and that this intentional exposure was committed by or
with the acquiescence of state authorities. Failing which, his prayer under
section 7 ought to be unsuccessful.
RIGHT TO A FAIR HEARING
Khwarae further contends that that Section 10 (9) of the Constitution has
been violated by permitting the adoption to proceed, while he has a court
order permitting him visitation and other privileges and that this would
tantamount to taking away those rights without giving him a fair hearing.
The scope of a natural father’s right to be heard and to be notified in respect
of the adoption of his child must be explored. It is arguable that the right of
an unmarried father to be consulted in the event of adoption implies and
amounts to a right to the opportunity to be heard. Since a biological father
is legislatively entitled to be consulted before the proceeding that will result
Per Lesetedi AJA in Motlhabane and Another v S (CLCLB-107-09) [2010] BWCA 27 (28
January 2010) para 12.
54
55
S v Ndou (CLCLB-029-08 ) [2008] BWCA 60 (24 July 2008) para 59.
44
in the termination of his relationship with his child, the state may not
completely disregard the father's interest. At the least, the state must take
into account the father's argument that it would not be in the child's best
interests to terminate his relationship with the child, and the state may
terminate the relationship only on a finding that it would be in the child's
best interests to do so.56
The biological connection between the unmarried father and the child,
whilst not creating automatic parenthood, provides the opportunity for men
to step forward and father their children. The legislature in recognition of
the changing implications of parenthood has expanded the laws to formally
recognise the unmarried father as a parent and to support him in fulfilling
this role. In the words of Justice White in Lehr v. Robertson “The intangible
fibers that connect parent and child have infinite variety. They are woven
throughout the fabric of our society, providing it with strength, beauty, and
flexibility. It is self-evident that they are sufficiently vital to merit
constitutional protection in appropriate cases.”57
Furthermore, under the Children’s Act, the parents shall be given an
opportunity to participate in decision-making processes under the Act that
are likely to have a significant impact on the child’s life, processes such as
adoption, and are to be given adequate information as well as complaint or
56
Buchanan, n 1 above 346.
57
See n 21 above, para 256.
45
review procedures.58 In McMichael v UK59 Scotland encountered difficulties
under the European Convention for the Protection of Human Rights and
Fundamental Freedoms when it did not afford an unmarried father access to
documents before the children’s hearing. This was held to be a breach of
article 8 (respect for family life) because it did not allow him to be involved in
the decision-making process to a degree sufficient to protect his interest.
The current provisions of section 4(1)(d)(i) of the Adoption Act have serious
consequences for the unmarried biological father alone. The Court must
clearly and unequivocally elaborate the meaning of consultation as provided
for under the 2009 Children’s Act: does consultation entail the opportunity
to withhold consent? If not then it does not qualify as a meaningful
involvement in the decision-making process and instead becomes an empty
provision that does nothing to alleviate the potential consequences for the
unmarried father and his biological child. It is further suggested that
consultation in some cases may even require that the father grants his
consent to the adoption proceedings. The deciding factor will be the best
interests of the child, and the prior established relationship or bond between
the two would necessarily be relevant and ought to be factored in to the
decision making process. The consultation requirement ought to be
calibrated accordingly. That leaves the Court in the Khwarae decision with
58
Sections 7(e) & 7(f).
59
(1995) 20 EHRR 205.
46
an opportunity to flesh out broad parameters of this requirement, including
practicalities relating to the who, when and how of consultation.60
On the presented facts, Khwarae has established the existence of a
relationship between him and his child that entitled him to be consulted
before the commencement of adoption proceedings. The Children’s Act and
the Constitution both protect and provide him with the right to have an
opportunity to be heard. The Attorney General contends that the applicant
is permitted and should correctly approach the court for an appropriate
order where section 10(9) of the Constitution is applicable. However, it is
unclear why the present court is not able to be seized with the matter? The
right to be given adequate information as well as complaint or review
procedures is encompassed in the Children’s Act and in the constitutional
provision that the applicant seeks to rely upon.
IV.
THE MMUSI/RAMANTELE DECISIONS
The High Court decision in the Mmusi case was broadly lauded as a
landmark decision in advancing women's rights in Botswana. Jonas
suggests that the Mmusi decision takes over from where Dow left off in
“pushing back the frontiers of emancipation for the women of Botswana,
Africa and the world.” 61 The main critique levelled against the Mmusi
decision is that there was no satisfactory discussion and resolution of the
60
Lawrence & Patrick, n 5 above, 258.
Obonye Jonas (2013) "Gender equality in Botswana: The case of Mmusi and Others v
Ramantele and Others" 13 African Human Rights Law Journal 229, 230.
61
47
tension between sections 3 and 15 of the Constitution. The second critique
is the position that the court erred in opining that there is no room for
public opinion in constitutional interpretation.62 In contrast, Fombad takes
issue with the attempt to strike down a rule of customary law, suggesting
instead that "... courts, when interpreting a rule of customary law, should,
where it appears to conflict with – or actually conflicts with – the
fundamental rights provisions in the constitution, strive to interpret and
develop rather than strike down the rule of customary law." 63 Fombad's
discussion of the Mmusi decisions is not as relevant to the present case
since his primary train of thought revolves around the role that the courts
ought to play in the development of customary laws.
Whatever the criticism levelled against the High Court judge for his handling
of the Mmusi decision, the judicial activism that he exhibited in his handling
of the case shone a powerful beam on the way that custom can be
misappropriated to thwart the advancement of equality rights in society. The
case opened the gate for engaging and enhanced interrogation of the role
that the Constitution can play in shifting women’s lived realities.
Furthermore, the inclusion of international case law and legislation in the
discussion only served to strengthen the position that no country is an
island free from the changes that occur in the international community
within which it exists.
62Jonas,
n 61 above; Chiara Van Ingen & Tshegofatso Phala (2014) " Homophobia in African
law" Without Prejudice 54;
Charles Manga Fombad (2014) "Gender equality in African customary law: has the male
ultimogeniture rule any future in Botswana?" 52:03 The Journal of Modern African Studies
475, 483.
63
48
In the High Court decision of the Mmusi case, the court took a firm stance
upon the necessity for the courts of law, as the conscience and voice of
contemporary society, to do their part towards the achievement of gender
parity. The learned judge opined that the justices of the court must “assume
the role of judicial midwives and assist in the birth of a new world struggling
to be born, a world of equality between men and women as envisioned by
the framers of the Constitution.” [Para 217].
It was held that the right to protection of the law contained in section 3 of
the Constitution leads to the principle that all laws must treat all people
equally save as may legitimately be excepted by the constitution; and that
section 3 is a standalone provision from section 15:
“I am conscious of the argument advanced by the
respondents that I must apply section 15 to the dispute
and not section 3(a) of the Constitution. I am unable to
understand the logic of such argument. Section 3(a) is a
substantive section that confers rights. It is distinct from
section 15. If a litigant, as in this case, chooses to proceed
in terms of section 3(a), and succeeds to meet the
requirements of the said section, then his/her challenge is
entitled to succeed.”
This decision was deemed problematic both in the higher court and in the
literature that has since developed on the famous case. Jonas observes that:
“It appears that the Constitution of Botswana gives a right with one hand
and takes it away with the other. Whereas the Constitution prohibits
discrimination in some of its clauses, it entrenches discrimination in other
provisions. Thus, a conflict arose in the case. This tension can only be
49
settled by the application of the doctrine of harmonisation, which requires
that the provisions of the Constitution must be interpreted in a manner that
ensures their peaceful coexistence.”64
Lekgowe refers to the unresolved and continuing tension as a missed
opportunity, the High Court having “failed to interrogate the purpose of and
the distinction between Section 3 and Section 15:
“If not improbable, it is extremely unlikely that the framers
of the Constitution would have framed two provisions, put
them separately, in the same Constitution, dealing with
the same subject matter, the other one, simply being a
perfect reflection of the other. Interrogating the purpose of
and distinction between Section 3 and Section 15 would
had the benefit of, if not making sound the reasoning of
the Court, then at least revealing the reasons why the
Court chose to apply Section 3(a) and not Section 15(1).
Simply because the Applicant elected to proceed under
Section 3, such an election was neither a hindrance nor a
bar to the Court probing its legitimacy. 65
Lekgowe then suggests an alternative interpretation of the relationship
between the contentious sections:
“It is submitted that the difference between Section 3 and
Section 15(1) is that Section 15(1) guarantees the right to
non-discrimination and Section 3 guarantees fundamental
rights, without discrimination, or equality with regard to
the rights and freedoms set forth in the Constitution. Any
inequality with regard to anything that is not a
64
Jonas, n 61 above, 238.
Gosego Rockfall Lekgowe (2012) "Mmusi & Ors v Ramantele & Another: An opportunity
missed to begin the burial of Attorney General v Unity Dow?" 15 University of Botswana
Law Journal 81, 83.
65
50
fundamental right cannot be considered a violation of
Section 3. In terms of Section 3, even the right to nondiscrimination is conferred on every person in Botswana
without discrimination. To come under Section 3, a litigant
must allege that he or she is being denied one of the
fundamental rights and that it is being done in a
discriminatory manner that is, based on more or one of
the stipulated descriptions. Unlike a complaint under
Section 15(1), a complaint under Section 3 need not be
based on a discriminatory law. It will then be open to the
opposing party to plead that the case is affected by the
limitations of that right such as to allege that such denial
is in the public interest or it is being done for the purposes
of respecting the rights and freedoms of others.”66
Furthermore, the court rejected outright “any suggestion, no matter how
remote, that the court must take into account the mood of society in
determining whether there is a violation of constitutional rights as this
undermines the very purposes for which the courts were established.”67
Lastly, authors such as Fombad have been extremely critical of the use of
comparative foreign legislation and case law to assist in the adjudication of
Mmusi case. Although the author took more issue with how the
cases/constitutions were cited as opposed to whether or not there is a role
for “comparative human rights jurisprudence and international human
rights law in the determination of the claim.”68
In deciding Ramantele, The Court of Appeal took issue with the lack of
adequate evidence leading to a ruling on the constitutionality of a
66
ibid, 87.
67
Para 197. This is a position of the court that invited severe criticism from scholars.
68
Citing Jonas, n 61 above 229.
51
Customary Law and more generally with the judge’s method of deciding the
case on a constitutional ground:
“a court should not be too quick to consider the
constitutionality of a Customary Law unless it is
possessed of sufficient evidence regarding the existence
and content of such custom, its application and the
rationale thereof. Should a court do so, it is likely to find
itself making decisions which have got no contextual and
factual foundation, yet with far-reaching consequences. ...
The constitutional question did not advance the
determination of the case in any way. ... The wheels of
justice must not be mired and slowed by philosophical
and theoretical issues which do not advance the dispute
resolution process, nor by uncalled for piece-meal
determination of litigation. ... [W]here it is possible to
decide a case before the court without having to decide a
constitutional question, the court must follow that
approach.” [Para 37-40].
Yet, the court proceeded to set out the “proper constitutional analytical
process merely for guidance.” [Paras 51 & 58].
With specific reference to the relationship between sections 3 and 15 of the
Constitution, Lesetedi JA rejected the High Court’s finding that section 3
provided rights separate from section 15 and thus was not limited by the
exemptions outlined under section 15(4). Instead, Lesetedi JA held that
section 3 was an umbrella provision under which section 15 was
subordinate.69 Furthermore, Lesetedi JA noted that any limitations outlined
in section 15, among others, would themselves be limited by those outlined
in section 3. Thus, a court must assess whether the particular limitation on
69
Para 65.
52
a specific right under the Constitution is justifiable in that it either
prejudices the freedoms of others or is in the public interest. In particular he
stated that: “the derogations contained in Section 15(4) of the Constitution
are not unchecked. They must be rational and justifiable either as being
intended to ensure that the rights and freedoms of any individual do not
prejudice the rights and freedoms of others or as being in the public
interest.” [Para 72].
The Court also admonished the High Court judge for “traversing” issues that
do not directly arise from the case being dealt with, declaring that “[n]o
rebirth was called for in this case.” In conclusion the High Court decision
was set aside and replaced but its outcome retained.
It was suggested that in opting to deal with section 15 as a standalone
provision that the learned judge erred in his interpretation of the
Constitution. However, the interpretative method used in the Mmusi case
was reversed in the Appeal Court decision and replaced with an approach
that merely reiterated previous decisions on the issue without suggesting
new or varied ways of construing the relationship between sections 3 and 15
of the Constitution. The question that then arises is whether such an effort
is actually relevant to the decision in the Khwarae matter? If decided only on
the basis of section 15 as pleaded, the case would still implicate the
protection afforded by section 3 of the Constitution since a “piece-meal”
rendition of the protected liberties is not feasible in actuality – human rights
are interdependent and interrelated. Thus the section 15 right to be
53
protected from discrimination of necessity implicates the section 3 rights to
protection of the law.
V.
NON-CONSTITUTIONAL GROUNDS
In Ramantele the Court of Appeal admonished the learned judge for dealing
with the Mmusi decision on constitutional grounds when there were nonconstitutional remedies available to dispose of the matter. The Court must
not actively avoid the constitutional issues that are brought to it, in the
present matter it would be so unfair as to amount to a denial of justice if the
Court were to shy away from interrogating the constitutional considerations,
even if only to establish whether there actually are alternative legal grounds
available. In the area of protection of human rights, the courts have the
primary responsibility and duty of giving force and effect to the basic human
rights and fundamental freedoms enshrined in the Constitution. Under
Section 18(1) of the Constitution, if a person feels that any of the protective
clauses, that is, Sections 3 to 16 (inclusive) of the Constitution has been or
is being or is likely to be contravened in relation to him, he should apply to
the High Court for redress. Under subsection 2, clause (a) the High Court
has original jurisdiction to hear and determine such an application. 70
Furthermore it is trite law that the constitutionality of legislation does not
depend on whether the litigant has a satisfactory alternative remedy. The
whole point of the procedure is to measure the validity of the impugned
Melvin Mbao (1993) “Accountability in Government and realization of Human Rights in
Botswana” 12 Third World Legal Studies 59, 64.
70
54
section of the Adoption Act under the Constitution, and the Court cannot
therefore escape the constitutional issue.
The court must delve into constitutional questions of necessity when
weighing up the various interests in this matter. Especially in a case like
this where the father and the child have had a relationship and the father
has established an ongoing and definitive interest and involvement in the life
and welfare of the child. There are the child's rights to family and to know
and be raised by its biological parent that may trump the unclear rights of a
parent, especially those of the unmarried biological father. There is a
nuanced a delicate balancing act that the Court must engage in when the
state seeks to aid in permanently severing the ties between a parent and a
child, the Constitution is a strong manual in navigating such murky waters
as human relationships.
VI.
CONCLUDING REMARKS
The current Children’s Act with its enhanced acknowledgment of the
parental role of unmarried biological fathers would seem to suggest that
some biological fathers hold protected rights regarding the parent-child
relationship. Especially as seen from the perspective of the child and their
best interests which are to be considered paramount in all decisions
concerning children.
The ultimate test for each of the decisions that are taken concerning the
minor child in this and in every matter will be her best interests. The Court
55
and every decision-making body tasked with her matter must weigh all
choices against this standard. Furthermore, the standard is context-specific
and the court will be influenced to a large extent by the social, political and
economic conditions of Botswana. There is a danger that in using this
standard any rights that Khwarae and other unmarried biological fathers
may seek to rely upon will be defeated by the socio-economic benefits and
stability that adoption might proffer a child. However, this danger is
mitigated by the reinforced message in the Children’s Act that the parent is
to be supported and assisted in their efforts to care for the wellbeing of their
child – this includes granting them primacy in the queue for custodial
relationship with their children.
Protecting the substantive rights of women would meet the test of section 3
of the Constitution as advanced by Amissah JP in the Dow case and
reinforced in the more recent decision by the Appeal Court in the Ramantele
ruling for upholding the applicable derogation under section 15.
In order to show that he has been made to suffer “inhuman or degrading
punishment or other such treatment,” Khwarae would have to show that he
was intentionally exposed to mental or physical suffering and that this
intentional exposure was committed by or with the acquiescence of state
authorities. Failing which, his prayer under section 7 ought to be
unsuccessful.
The current provisions of section 4(1)(d)(i) of the Adoption Act have serious
consequences for the unmarried biological father alone. The Court must
56
clearly and unequivocally elaborate the meaning of consultation as provided
for under the 2009 Children’s Act: does consultation entail the opportunity
to withhold consent? If not then it does not qualify as a meaningful
involvement in the decision-making process and instead becomes an empty
provision that does nothing to alleviate the potential consequences for the
unmarried father and his biological child. It is further suggested that
consultation in some cases may even require that the father grants his
consent to the adoption proceedings. The deciding factor will be the best
interests of the child, and the prior established relationship or bond between
the two would necessarily be relevant and ought to be factored in to the
decision making process. The consultation requirement ought to be
calibrated accordingly. That leaves the Court in the Khwarae decision with
an opportunity to flesh out broad parameters of this requirement, including
practicalities relating to the who, when and how of consultation.
57