Inter jurisdictional movement and relocation of children: The Republic of Botswana
A Report by Rita Keevil of Armstrongs, Botswana and a Member of the IAFL
Botswana is blessed with a very cosmopolitan society and the issue of the movement of minor children often comes up, as does the question of how the Courts here will assist if a child is brought into our jurisdiction without the consent of the other parent. It is a thorny and emotive and scary issue for parents who fear the loss of their children.
We have a three tier Court structure with the Magistrates Court being the lower court, the High Court being the Court of unlimited jurisdiction and the Court of Appeal being the superior Court and Court of last resort.
Our law is derived from the Common Law which is founded on Roman Dutch Law, precedent and statute.
In the more than 50 years since Botswana’s independence our Courts have built a substantial body of precedents. They are however, guided by international decisions where our law is not settled. Judgments from regional and Commonwealth jurisdictions are of particular guidance value.
Our High Court is the upper guardian of all children within its jurisdiction regardless of the nationality, domicile or place of ordinary residence of the child.
A minor child is, in terms of the
Children’s Act, a child under the age of 18 years. Various other statutes also fall into the matrix of our law on children.
There are 4 firmly established relevant principles in our law:
- The interests of the child are the paramount, but not sole, consideration,
- a child may not be removed from her home / established environment without a Court Order, unless the status quo is inimical to her best interests and a temporary Order is made,
- a child may not be removed from the jurisdiction without the consent of the remaining parent unless there is a Court Order allowing the removal. To so remove a child is a criminal offence in terms of the Children’s Act. Section 114. It is also prohibited by the Abolition of Marital Power Act.
- No person may take the law into his or her own hands.
When the remaining parent does not consent, consent to remove a child must be sought from the High Court with its overarching jurisdiction or by a Magistrate’s Court as the Children’s Court in terms of the Children’s Act.
Botswana is a member of the comity of nations which has through the United Nations promulgated the
United Nations Convention on the Rights of the Child (
UNCRC). This is a legally binging international instrument which incorporates the rights of the child and has as one of its cornerstones the best interests of the child.
Botswana signed and acceded to the
UNCRC on 14
th March 1995 and on so doing became bound by its terms.
Our Court of Appeal has 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."
On acceding to the UNCRC, and in fulfilment of our obligations under the convention, we amended our
Children’s Act in order to domesticate the values and principles of the Convention on the Rights of the Child. That Act embodies the Bill of Rights for children in Botswana. Section 5 states: “
A person or the court performing a function or exercising a power under this Act shall regard the best interest of the child as the paramount consideration” and proceeds to set out factors to be taken into account to determine “best interests”.
Among these are the importance of stability and the likely effect on her of any change or disruption in her circumstances.
“
Custody” and “
ordinarily resident with” or “
primary residence” are terms that tend to be used interchangeably but all refer to the day to day care, control and home of a child.
The domicile of a minor child is considered to be the place with which the child is most closely connected and is generally assumed to be the child’s place of residence.
Just as a child may not be removed from our jurisdiction without the consent of both parents, a child may not be brought into this jurisdiction or remain here without the consent of both parents.
. That that consent is couched in a “Travel Affidavit”, a requirement fairly recently introduced in an effort to stem child trafficking. These Affidavits generally set out the destination and return date of the child.
While Botswana is not a signatory to the Hague Convention on Child Abductio, our Courts will not countenance unauthorised removal of a child from any jurisdiction or place of residence and take a robust view of such conduct. Our Courts will order the return of children removed improperly from any jurisdiction.
If a child is not returned to her jurisdiction of domicile or settled residence against the will of one parent, that parent may apply to our High Court for an Order for the return of the child. With prompt action, such an application could be made on the basis of urgency.
The effective defence to such an application would be to prove that the return of the child would be inimical to her best interests which would require the balancing of the best interests of the child, (and to an extent to the interests and good faith of the removing parent) against the legal principles which prohibit self help.
The authorities will assist in enforcing an Order for the return of a child. Wilful failure to obey a Court Order constitutes contempt and may be punished by committal to prison.
Foreign judgments are registrable and enforceable in Botswana.
So, how does this all work in reality?
The provision of consent to travel is recognised by our as open to abuse between warring parents and is a card often played without consideration of the child’s best interests.
An Order allowing one parent to travel with a child without the other’s consent may be a blanket Order dispensing with the requirement for the parent’s consent or may specify duration and destination of travel.
It is important to note that travel to Botswana, by any means, invariably requires transit through another African country and this transit route should be accommodated in the consent or the Court Order.
If a parent is unreasonable in withholding consent for relocation, a parent may seek an Order that she does not require the other’s consent to relocate, in the best interests of the child. The best interests of the child in such circumstance are seen by our High Court as tightly interwoven with the interests of her primary caregiver.
The IAFL is hosting a webinar on 5th February in conjunction with the Commonwealth Lawyers Association exploring "Hot Topics in Family Law in Africa". Please click
here for further information
