PROTECTION OF THE RIGHTS/ WELFARE OF THE CHILD BY THE FAMILY COURT

Being comments presented by Mrs Folasade Adetiba*

@ The Good Home Quality Service Advocacy Scheme Awards Event Held on 6th Feb 2015 at Terra Kulture, Lagos                              

A:Background:

  1. Why “Rights” for the Child”:  Observance and Protection of all categories of “Human Rights” have attained the status of international best practice.
  2. Emergence: Nov 1989- UN General Assembly adopted the Convention on the Rights of the Child a; July 1990- OAU Assembly of Heads of States and Governments adopted the AU Charter on the Rights of the Child b; 1991 and 2000, Nigeria signed both instruments a and b; 2003- Nigeria domesticated the UN Convention through the enactment of the Child Rights’ Act 2003c and in May 2007, the Child Rights Law came into existence in Lagos State; “CRL”.

B: Before 2003

  1. Prior to 2003, the protection of the Nigerian Child was covered by the Children and Young Persons Act, “CYPA” which dwells more with criminal process administration where a child is involved.

C: A new Child Protective System under the CRL

 

  • The CRL defines a new child protective system and allowsopportunities for the participation of children in matters that concern their rights and welfare; rights which were not present in the CYPA.
  • The law covers every subject that involves the welfare of a child, including adoption, fostering, taking into protective custody; creation of Special Units within the Police Force to take care of welfare of children etc.

D: Rights of a Child under the CRL

  • Under Sections 3 -15 of the CRL, the rights which are accorded to a child include: the right to life, right to a name, right to freedom of association, right to privacy, family life, freedom of movement, right to free compulsory and universal basic education, special protection where needed; parental care and protection; right to rest and leisure and to engage in play and recreational activities appropriate to his age; right to enjoy the best attainable state of physical, mental and spiritual health; as well as the right to be protected from willful, reckless, negligent harm or injury during and after the birth of the child etc.

 

E: Prohibitions created in favour of the Child under the CRL

 

  1. Sections 20 -31 contain prohibitions which include marriage or betrothal of a child, exposure to the use of or distribution of narcotic drugs, buying, selling or hiring a child, having sexual intercourse with a child whether or not the offender is aware of the age of the child, or whether the child consented or not; and no child shall be recruited into any of the branches of the Armed Forces in the Federation, or get involved in any military operations or hostilities.

 

F: Domestication of the Act by States of the Federation and Implementation

 

7.1So far in Nigeria, 23 States as well as the FCT have passed the legislation into law in their respective jurisdictions. However actual implementation is poor in most of the said 23States.

 

  • In Lagos State, the level of implementation is quite commendable. Family Court Lounge

G: The Family Court and Enforcement of the Child’s Rights

8.1 All the rights contained in the CRL can be enforced by the Family Court created under Section 138 of the CRL. No other court has jurisdiction to handle cases involving a child. This engenders quick attention to matters affecting the child, as well as enables the emergence of a new and desirable specialization area of practice in Child’s Rights.

8.2 The Family Court exists at 2 levels, as a Division of the High Court; and as a Magistrates’      Court, at the Magisterial level.

8.3 The Family Court sits as a Judge and 2 assessors. The assessors are appointed by the Hon CJ and sworn together with the Judge as members of the Family Court. Assessors are senior professionals with experience in   matters relating to children, especially in the area of child psychology and education. With their wealth of experience, the court is able to adjudicate on issues involving children from less technical approach; making the process friendlier and easier for the child’s participation.  In matrimonial proceedings, the child is shielded as far as possible from the rancor between the parents.

8.4 The Family Court has unlimited jurisdiction to hear and determine (a) any civil proceeding in    which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim in respect of a child is in issue; and (b) any criminal proceeding involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by a child or against a child or against the interest of a child.

 

H: Best Interest of the Child is paramount

  1. In any proceeding in the Family Court, the best interest of the child is given paramount consideration; the court ensures all parties adhere to this principle. Cases involving children are given precedence over other matters in the Family Court. Also the proceedings are conducted in an atmosphere of understanding, adopting as far as possible reconciliatory and a problem- solving approach.

 

I : Guardian ad Litem: A child has unfettered opportunity to approach the Family Court to enforce his rights under the CRL. The Court is empowered to appoint a legal practitioner as “guardian ad litem” to represent the best interests of the child where it deems it fit to do so. Also the Office of the Public Defender is available to take up protection and defence of the child’s rights.

J:  INTERFACE WITH CHILD INSTITUTIONS.

The Family Court does not interface directly with child institutions such as schools and orphanages. The interface is through the following bodies:

  1. The Ministry of Women Affairs and Poverty Alleviation,
  2. Ministry of Youth and Social Development,
  3. Office of the Public Defender
  4. NGOs who focus on Children Issues and Welfare
  5. The Child Protection Network, which is a national body with offices in several States of the Federation.
  6. The Specialized Children Police Unit created by the CRL, which consists of police officers who frequently or deal exclusively with children or who are primarily engaged in the prevention of child offences.

Through these bodies, any school or other child institution can report the incidence of any child offences, and these bodies may apply to the Family Court for investigation of the circumstances through a Child Assessment Order and also for an Emergency Protection Order for the child.