The Concept of ‘Best Interest of Child’ in Sri Lanka

 Family Law DEVELOPMENT OF THE CONCEPT ‘BEST INTEREST OF CHILD’ IN SRI LANKA Question: Evaluate the development of concept ‘Best Interest of Child’ in one of the following jurisdictions.

1. South Africa.
2. India.
3. Sri Lanka.
4. United Kingdom.

CONTENT 1.Introduction 1.1The Child 2.Custody, Guardianship, and Parental Power 2.1Parental Power 2.2Custody and Guardianship 3.The Best Interests of the Child in Sri Lankan Context 3.1Concept 3.2Impediments 4.Conclusion DEVELOPMENT OF THE CONCEPT ‘BEST INTEREST OF CHILD’ IN SRI LANKA

1.Introduction

This document will discuss the concept of Best Interest of Child in Sri Lanka in brief. Usually, children were only supposed to be seen but not to be heard where their views and interests did not take in to consideration. Such inherent thoughts about the status of the children in our society have made them in danger of physical, psychological, emotional, and sexual abuses. Without any fault on their hand they suffer a lot due to the thinking pattern of the society. By the time the governments prevailed time to time though they understood this situation didn’t make essential legal arrangements to protect the rights of the children considering the International conventions on children and other facts. Though it is so, the courts make a range of decisions which affect on children, to determine the custody, guardianship, safety, and to terminate the parental rights by judicial interpretation of some international standards and some statutes of the country. Whenever a court makes such a decision, it must consider whether that decision is in consistent to the “best interests” of the child.

1.1The Child

Definition of term "the child" is essentially important in discussing the ‘Best Interest of Child’. Oxford Dictionary defines ‘the Child’ as, ‘a young human being below the age of puberty or below the legal age of majority’.[1] Convention on the Rights of the Child (CRC) has defined the term ‘child’ as a person who is under the age of 18 years[2]. Legal Age of Majority in Sri Lanka is defined in the ‘Age of Majority Ordinance Number 02, 17 of 1989 of Sri Lanka’ as ‘Eighteen years made the legal age of majority’.[3] Though there is no particular definition for the term of ‘best interests of the child’, generally it gives out the meaning as, the consideration that a court commence when deciding what sort of services, actions, and orders will serve on a child in best and also who is best suited to take care of a child. ‘Best Interests of a Child’ is determined by the courts, considering number of facts related to a particular child’s conditions and the parent’s or guardian’s status and his/ her capacity as parent, to the child’s safety and well-being.[4]

2.Custody, Guardianship, and Parental Power

When it discussed the concept ‘Best Interest of Child’, foremost concepts to be discussed are Custody, Guardianship, and Parental Power of children.

2.1Parental Power

This concept denotes the connection between parents and children and that connection or the relationship is based on the rights and duties of both parties. Parental power concept varies with the time and the place due to cultural and religious reasons and also due to law and legitimacy despite of genuine needs of a child.

2.2Custody and Guardianship

The two concepts, Custody and Guardianship make out the foot path to their right to be take care till the age of majority, and also the parental power over children. The law has the challenge to make equilibrium between custody and guardianship of children. Custody and Guardianship are two different concepts and could be exercised either by an individual or by different persons. Custody is the right to keep the child physically where as guardianship doesn’t involve in physical control, it only making decisions about the aspects of child. In law the whether the child is mature enough to think, he or she is not authorized to state their view on, to whom from among the mother, father and a relative the custodianship or the guardianship him or her to be awarded. Though the child strongly opposes the person who is granted with him or her guardianship or custody the court cannot consider it, it can only offer the custody or guardianship o the person or persons who are authorised by the law.

3.The Best Interests of the Child in Sri Lankan Context

3.1Concept

This part of the answer will discuss how the rights of children recognized under the common law of Sri Lanka in the adjudications of issues related to custody and guardianship of children. Common Law of the country, Roman Dutch Law is unwritten on custody and guardianship issues, and as a result the answer can be constructed through judicial interpretations only. The term “best interests” largely expresses the well-being of a child. It is determined by an assortment of individual situation, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences. The Convention on Rights of the child (CRC) lays down that:

• The best interests must be the determining factor for adoption[5]
• Separation of a child from parents against their will[6]
• The best interests must be a primary consideration for all other actions affecting children [7]

By the Article 30 of CRC right of a child to be nurtured in culture of his or her is enforced[8], but by this the concept of the best interest of child restricts to cultural contexts which make uncertainty. Sri Lankan laws on custody and guardianship of children also adopt an extreme cultural relativist situation when it considering the above right declining human rights of children. The aspects of physical psychological, social and many other reasons which sets out the best for a child is decided by parents in most cases. Though it is so children’s lives are not measured as a private subject of the parents alone, the state (the Magistrate Court) interferes as the upper guardian of all minors. It is the court’s responsibility to have sufficient understanding of the particular situation and requirements of the child when deciding what is best for him or her, so to that the court has to listen to the child in order to understand the situation and to give a judgement which will not make any ambiguities or absurd situations. Since every person has a right to partake in the court proceedings that affects to his or her life this would keep the child’s rights not infringed.[9], [10] Since Sri Lanka is a dualistic country, without an enabling statute passed in the Parliament the Convention on Rights of Children (CRC) does not directly become a domestic law on the agreement itself. But such a statute never passed by the Parliament in respect of the CRC, hence the convention become in to power only through the judicial interpretation. Though the Sri Lankan Constitution guarantee the Fundamental right of equality before the law and equal protection before the law to all the citizens, the judgments given in the cases which dealt with custody and guardianship of had more favour in the social and cultural aspects protecting the concept of parental power and preferential right of farther, than the rights of the child. The common law of the Island which is based on the principles of English law and Roman Dutch law does not have any codified version of laws in relationship to the matters of custody and guardianship, the procedures for issues relating to such matters are elaborated in the Civil Procedure Code[11]. Also the Tsunami (special provisions) Act[12] provides direction on substantive and procedural matters relating to adoption, guardianship and custody of children, who were affected due to the natural disasters and has introduced the concept of further care. As it mentioned above in the Island it is mostly consider the parental power and preferential right of the farther in deciding the custody or the guardianship of a child. Supreme Court in the judgement of Ivaldy V Ivaldy[13] mentioning the preferential rights of a farther over his children pronounced that, the father could not be disadvantaged of his preferential right to guardianship and custody if no danger is there to child’s life, health or morals. Also in the decided case Madulawathie V Wilpus[14] the courts held that, so long as the bond of matrimony subsists, the father, as the natural guardian, has the preferential right to the custody of a child born of the marriage, and Siva Supramaniam J. quoted in the judgement that, “In an application of this nature for the custody of a child, the paramount consideration is the welfare of the child. It is settled law that, subject to that consideration, so long as the bond of matrimony subsists, the father, as the natural guardian, has the preferential right to the custody of a child born of the marriage.” In the case of Weragoda V Weragoda the Court has keeping away the principle of preferential right took the side of the concept of best interest of the child and held that, the instances laid down in Ivaldy V Ivaldy are only a few examples of special grounds upon which the court can interfere with father’s preferential right, and that the paramount consideration of the court in custody disputes should be the welfare of the child.[15] This decision was followed in few cases decided later such as Fernando V Fernando[16] and Kamalawathie V de Silva[17]. The Sri Lankan judgements in favour of the concept of best interest of child was ascended above the concept of parental power when the Court of Appeal given its decision on Jeyarajan v. Jeyarajan[18] holding that, the paramount consideration in custody disputes should be the best interest of the child. This shows that the Sri Lankan courts considering the rights of the children in local and international contexts has given its foremost place to the concept of best interest of child keeping away the rights of parents and others though there is a lack of legislative guidelines and laws to determine how the courts should decide the best for the child. If such laws and guidelines were there it would give a comprehensive guideline or a margin to the judiciary to decide the best for the children.

3.2Impediments

The significance of considering the best interest of the child has been recognized in year 2005 in the International Covenant on Civil and Political Rights Act (ICCPR).[19] But putting Sri Lanka in an International responsibility, the ICCPR Act and the Civil Procedure Code of Sri Lanka does not indicate how the best interest of the child should be ensured.[20] In Sri Lankan courts the children are heard depending on the judges’ view, but as the Sri Lankan court procedure is an adversarial system, the atmosphere of the courts is not mush friendly to the children to express his or her ideas freely as per the rights given by the Constitution and Convention on Rights of Children.

4.Conclusion

It is difficult to bring up the rights of children in a context like Sri Lanka where by the culture plays a crucial role in guiding the children according to the customs and traditions of the parents or else adults. Courts also in most of the time given the decisions giving more favour to such customs and etiquettes despite of the interest of the child where as it cannot be accepted as such actions violate the human rights. Hence the children who are victims of the custody and guardianship disputes, depending on their maturity and capability should be granted to express their views regarding the decisions against their life. And also the court procedure in such cases must be in a child friendly manner in order to allow the child to express his or her thoughts freely. Since the children are the future of our country the law of the country must have proper provisions to protect their future. Concept of the Best Interest of Child should be enforced by a statute in order to make guidelines for the courts to act in the cases dealt with the children’s custody and guardianship despite of their culture, race, age, and gender. 1 RESTRICTED

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[1] Oxford Dictionaries, 'Definition of child in English' (https://www.oxforddictionaries.com/ 2014) <https://www.oxforddictionaries.com/definition/english/child> accessed 02 August 2014 [2] Convention on the Rights of the Child 2 September 1990 s 1 [3] Age of Majority 1989 s 02 [4] Children’s Bureau, USA, 'Determining the Best Interests of the Child' [November 2012] Child Welfare Information Gateway , p 34 [5] Convention on the Rights of the Child 2 September 1990 s 21 [6] Convention on the Rights of the Child 2 September 1990 s 09 [7] Convention on the Rights of the Child 2 September 1990 s 03 [8] Convention on the Rights of the Child 2 September 1990 s 30 [9] CRC Art.12, General Assembly Resolution A/RES/S-27/2,(2002) ‘A world fit for Children’ Para 7(9) [10] SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia, 2002. [11] Ss.620, 621, & 622 of the Civil Procedure Code No. 2 of 1889 provides for custody, maintenance, and education of minor children. [12] No. 16 of 2005 [13] (1956) 57 NLR 568 [14] (1967) [15] (1961) 59 CLW 59 [16] (1968) 70 NLR 534 [17] (1961) 64 NLR 252 [18] (1999) 1 Sri LR 113 [19] International Covenant on Civil and Political Rights Act No.56 of 2007, s.5(2) [20] Articles 9 and 12 of ICCPR Act

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