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Kingdom of Tonga[1] [print]

Last edited: December 2005

 

Summary and Analysis

 

The Kingdom of Tonga is an archipelago of 169 islands in the South Pacific with a population of just over 100,000.  The only Constitutional Monarchy in the South Pacific, Tonga became a party to the Convention on the Rights of the Child by accession on November 6, 1995.  Due to limited resources and difficulty obtaining data, the country has not yet reported to the United Nations on its progress under the Convention.  With the help of UNICEF, however, it is expected that the country will be able to submit an initial report by the end of 2006.  The Tongan Supreme Court has indicated that the Convention will only be enforced by the enactment of domestic legislation.

 

By enacting the Guardianship Act of 2004, the Tongan government did just that.  This statute-which remains the primary law governing child protective proceedings-specifies how children's voices are to be heard abuse and neglect proceedings. The Act gives the Court power to appoint guardians ad litem (Article 7) and law practitioners (Article 18) whenever allegations of abuse and/or neglect are raised in judicial proceedings.  In practice, the Court rarely, if ever, appoints an attorney to represent the child. Yet judges typically inquire into children's wishes during informal bench hearings, which take place privately in the judges' chambers.  In this sense, children usually have an opportunity to express their interests directly to the Court.  

 

Although the Court rarely appoints legal counsel for children in guardianship proceedings, it is standard practice for the court to appoint an attorney in the Solicitor General's office to act as a GAL in these types of cases.  After interviewing relevant parties-usually including the child if he or she is over four years old-the GAL will make a recommendation to the court on what steps should be taken to ensure the child's best interest.  There is no formal system in place for children who become "wards of the court" during and/or after abuse and neglect proceedings; typically, when children are removed they are placed with relatives.

 

Sources of Law (In Order of Authority)

 

Original Text

 

Statutes

 

Tongan Guardianship Act 2004, available here, and also as .pdf Document, and also as Word Document.

 

International Law

 

Kupu 12:

 

Kuo pau ko e ngaahi Fonua memipa kenau fakapapau'i ki he tamasi'i 'a ia 'oku malava ke ne fakahoko 'a 'ene fakakaukau pe 'a'ana 'a e totonu ke ne fakaha tau'ataina 'a e ngaahi fakakaukau 'a e tamasi'i kuo 'oatu ki ai 'a e mamafa totonu 'o fakatatau ki he ta'u motu'a mo e matu'outu's 'a e tamasi'i.

 

1.     Koe'uhi ko e taumu'a ko 'eni, kuo pau ki he tamasi'i ko ia ke 'oatu ki ai 'a e faingamalie ke fanongoa 'i ha ngaahi hopo fakamaau'anga pe fakangaue 'oku ne uesia 'a e tamasi'i, fakahangatounu pe 'ikai fakahangatonu, pe fakafou 'i ha fakafofonga pe ha sino totonu, 'i ha founga 'oku tatau mo e ngaahi lao founga 'o e lao fakalotofonua.

 

Interpretations

 

Guardianship Act of 2004 (July 29, 2004)

 

2. In this Act, unless the context otherwise requires-

"child" means a person under the age of 18 years and includes an unborn child;

"Court" means the Supreme Court of Tonga;

"custody" means the right to possession and care of a child;

"customary adoption" means the placement of a child according to custom and the transfer of parental rights of custody and control in the upbringing of a child;

"guardianship" means the custody of a child and the right of control, which includes rights, powers and duties in respect of that child and his upbringing, and "guardian" has a corresponding meaning.

 

General Powers of the Court

7. (1) The Court shall have power to make or revoke a guardianship order.

(2) The Court may, in respect of a child, appoint a guardian as sole guardian or in addition to any other guardian.

(3) The Court shall have the power to appoint a guardian ad litem in respect of a child in guardianship proceedings.

Wards of Court

8. (1) The Court may, upon application, order that any child be placed under the guardianship of the court, and appoint any person to be the agent of the Court either generally or for any particular purpose.

(2) An application under subsection (1) may be made by -

(a) a parent, guardian, or relative of the child;

(b) the Attorney General;

(c) by the child, who may apply without guardian ad litem or amicus curiae; or

(d) any other person, with the leave of the Court.

 

Welfare of the child paramount

15. (1) The Court shall regard the welfare of the child as the paramount consideration in any proceedings where any matter relating to the custody, guardianship or access to a child, or the administration of any property belonging to or held in trust for a child.

(2) The Court shall have regard to the conduct of any parent to the extent only that such conduct is relevant to the welfare of the child.

(3) In any proceeding under subsection (1), the Court shall ascertain the wishes of the child, if the child is able to express them, take account of them to such extent as the Court thinks fit, having regard to the age and maturity of the child.

Costs

17. In any proceedings under this the Court may make such order as to costs as it thinks fit.

Power of court to appoint counsel

18. In any proceedings under this Act, a Court may appoint a law practitioner to -

(a) assist the Court; or

(b) represent any child who is the subject of or who is otherwise a party to the proceedings.

 

Case

 

Tone v. Police, Supreme Court of Tonga, 2004[2]

The Supreme Court of Tonga noted that, Tonga acceded to the UN Convention on the Rights of the Child in December 1995.  It also pointed out that, though accession by a State to a convention indicates its willingness to be bound by the convention's terms, it will only be enforced by enactment of domestic legislation.  

International Law

 

United Nations Convention on the Rights of the Child[3]


Article 12:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

Local Contact Information

 

Gloria Guttenbeil, Attorney

Crown Law Office, Kingdom of Tonga

Phone: 011 676 24055

E-mail: ofisilao@kalianet.to

 

Additional Resources and Links

 

Jennifer Corrin-Care et al, Introduction to South Pacific Law (1999). 

 

Tonga Working on Initial Report on the Rights of the Child, Matangi Tonga Online, June 6, 2005, http://www.matangitonga.to/article/tonganews/youth/crc060605.shtml

 

 


Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] Tone v Police [2004] TOSC 36; AM 022-025 2004 (28th June, 2004) in the Supreme Court of Tonga, Appeal Jurisdiction, VAV'U Registry, available at http://www.paclii.org/to/cases/TOSC/2004/36.html, and also here, and also as .pdf Document, and also as Word Document.

[3] Convention on the Rights of the Child, art. XII, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc A/44/49 (1989) (accession by Tonga on Nov. 6, 1995). This is an official UN translation, available at  http://conventions.coe.int/Treaty/en/Treaties/Html/160.htm.

 

 

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