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Lesotho[1] [print]

Last edited: November 2005

 

Summary and Analysis

 

Currently, there is no law in Lesotho that explicitly affords children an opportunity to be heard in child protection proceedings.[2]  The only legal protection instrument for abused and neglected children is the Children's Protection Act of 1980 (CPA), which provides for the best interests of the child in cases in which children are neglected or in need of care.[3]  Under the Act, a police officer, probation officer, parent, guardian or any other person having custody of a child may bring a child to a Children's Court to determine whether the child is in need of care, and such children may be placed in designated spaces for protection.[4]  The Children's Court is empowered by section 10 and subsections (a), (b), (c), (d) and (e) to recommend what is in the best interest of the child in need of care.  Where a parent subjects a child to abuse, neglect or abandonment, a child may be removed from the parents and State intervention may be provided through foster care, adoption or guardianship.  This process is normally facilitated through social inquiry reports compiled by social workers and probation officers and placed before a judge to make an appropriate order.  The High Court remains the upper custodian regarding children's rights and welfare.[5]

 

In determining whether or not an adoption should be granted, the best interests of the child is the paramount consideration.  In situations where the immediate parents of the child are dead, the law requires that the guardian of the child must give the requisite consent.  If the child is 10 years of age or over, the child's consent may be material.  Consent given to an adoption must be in writing and set out the names of the adoptive parents.[6]

 

In circumstances where proof and evidence are adduced that the child suffered assault, illtreatment, neglect, abandonment or exposure that caused the child unnecessary suffering and injury, this shall be contrary to the best interests of the child, and in such situations, a parent or guardian who subjects a child to such illtreatment is guilty of an offence and liable to a fine or imprisonment (sect. 18 (1), Children's Protection Act).[7]

 

Although the Children's Protection Act stipulates that decisions shall be made considering the best interests of the child, a 2000 report by the NGO Coalition for the Rights of the Child, Save the Children UK, indicates that the policy of considering best interests is not enforceable in court and is not adhered to in practice.[8]  According to the report, there is no clear government policy or practice in place to determine when it is in the best interest of the child to be removed from her/his family environment; rather, decisions are made on an ad hoc, case by case basis.[9]  The Department of Social Welfare (DSW) does not have a legal mandate to determine whether a child is in need of care; this power is vested instead in the police and probation, confusing legal responsibilities.  Even though in theory the courts should make the decision whether it is in the best interest of the child to be separated from the parents, in practice many of these cases never reach the court and the decision is made solely by DSW.[10]  As separation from parents is usually because of divorce, family breakdown or conflict, children are not adequately represented in such situations and there are no mechanisms for them to make their feelings and opinions known.[11]  Once children are placed in alternate care, the social welfare system has inadequate resources to provide family support and most children are placed in the care of NGOs without any proper legal process, system of review or appeal, or mechanism for complaint.[12]  Placement is based on availability of NGOs' services not on the needs of the child.  Moreover, there are limited and inadequate mechanisms of review for children placed in alternative care, whether placed there by the court or not; those mechanisms available are not accessible to children themselves, and are not properly utilized.

 

The Committee on the Convention on the Rights of the Child has also expressed concern that traditional practices and attitudes in Lesotho have limited the implementation of the right of children under the CRC to express their views and to participate in decision-making processes. [13] The Committee has further expressed concern that the evidence of children is not given appropriate weight in courts of law, that the principle of the best interests of the child is not respected, and that the situation is aggravated by the limited implementation of children's right to be heard asserted by Article 12 of the CRC.

 

Responding largely to these concerns is a proposed bill the Children's Protection and Welfare Bill[14] currently under consideration by the Parliament of Lesotho, that is meant to consolidate and reform Lesotho's laws relating to the protection and welfare of children and to extend, promote and protect the rights of children as defined in the CRC and the 1990 African Charter on the Rights and Welfare of the Child.  The Act represents the country's aspirational position on children's right to be heard in child protection proceedings, among other rights.[15]

 

The Children's Protection and Welfare Bill provides, in pertinent part, that a child has a right to legal representation in any legal proceedings.  A legal representative appearing on behalf of a child under the act must allow the child to give independent instruction on the manner in which the case is to be conducted, encourage informed decision-making by the child by explaining possible options and the consequences of decisions, and ensure that the child is able to communicate in his/her language, utilizing an interpreter where necessary. 

 

The Bill affords the child the right to express his/her opinion freely and to have that opinion taken into account in any matter or procedure affecting the child.  The opinion of the child shall be given due weight in accordance with the age and maturity of the child.  The Children's Court may not make a decision about the placement of a child in need of care or protection without giving the child an opportunity to attend the proceedings and be heard.  Ultimately, however, the best interests of the child shall be the primary consideration for all courts, in any matter concerning a child. 

 

Related Sources of Law (In Order of Authority)

 

Statutes

 

Children's Protection Act (No. 6) of 1980[16]

 

International Law

 

United Nations Convention on the Rights of the Child (CRC)[17]

 

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.

 

Regional Agreements

African Charter on the Rights and Welfare of the Child (ACRWC)[18]

Article 4: Best interests of the child

1. In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.

2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate laws.



Endnotes

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

[2] Email from Dr. Itumeleng Kimane, Senior Lecturer, National University of Lesotho, and member, Lesotho Law Reform Commission, to Theresa Sgobba, law student, Yale Law School (Oct. 31, 2005, 03:50:59 EST)(on file with Yale Law School).

[3] Committee on the Rights of the Child, Initial reports of States parties due in 1994, Addendum: Lesotho, ¶ 59, U.N. Doc. CRC/C/11/Add.20 (Jul. 20, 1998), available here, and also as .pdf Document, and also as Word Document.

[4] Id.

[5] Id., para. 120.

[6] Id., para.135-137.

[7] Id., para. 62.

[8] NGO Coalition for the Rights of the Child, Save the Children UK, Complementary Report on the Implementation of the UN Convention on the Rights of the Child in Lesotho 4 (2000), available here, and also as .pdf Document, and also as Word Document.

[9] Id. at 17

[10] Id.

[11] Id.

[12] Id. at 3.

[13] Committee on the Rights of the Child, Concluding observations of the Committee on the Rights of the Child: Lesotho, ¶ 27, U.N. Doc. CRC/C/15/Add.147 (Feb. 21, 2001), available here, and also as .pdf Document, and also as Word Document.

[14] Children's Protection and Welfare Bill 2004 (relevant excerpt), available here, and also as Word Document.

[15] Email from Dr. Itumeleng Kimane, supra note 1.

[16] Currently unavailable.

[17] United Nations Convention on the Rights of the Child, A/RES/44/25 (1989), entered into force Sept. 2, 1990, available at http://www.ohchr.org/english/law/crc.htm.

[18] African Charter on the Rights and Welfare of the Child, CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999, available at http://www.africa-union.org/.

 

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