Children and the Law (1)

This is the first of 3 parts of the article on children and the law. It highlights some of the important aspects of the law most relevant to protecting the rights of children.

When I mentioned to a work colleague that I was writing an article on children’s rights and wanted to know which aspects he thought I should highlight, he laughed and said that children have no rights, they don’t feed themselves and should do what they are told. Of course, he was joking. We all know that children have rights. It’s just that because children do not seem to have a direct or strong voice of their own on matters that concern them, their rights tend to be downplayed until something extreme happens.

Children’s rights are actually part of the fundamental human rights and freedoms enshrined in the 1992 Constitution of Ghana. Other laws such as the Children’s Act (Act 560), the Criminal Offences Act (Act 29), the Juvenile Justice Act (Act 653) and the Labour Act (Act 651) further explain and specify the law regarding children to ensure that the rights of children are given special attention. It is therefore important that we have a better understanding of the scope of the protections that our laws provide for children and our roles as adults in ensuring children get what is due them.

First, what is the legal definition of a child? Both the 1992 Constitution and the Children’s Act define a child as a person below the age of 18years. In other words, Ghanaian law considers a person below the age of 18years as a child. That makes a person of 18years and above an adult. The law has placed persons below the age of 18years (children) in a special category because in the eyes of the law, such persons do not have the maturity (or capacity) to be responsible for the legal implications or consequences of their actions or in-actions and need to be protected. It is by this age distinction that a child is legally barred from voting, from acquiring a national identification number, from entering certain types of contracts, from driving or obtaining a license to drive, from holding property by themselves, from marrying and from representing themselves in court etc.

The law goes further to state that in all matters involving or concerning children, the best interest of the child should always be the deciding factor. This requirement is called the Welfare Principle, stated in section 2 of the Children’s Act.

Welfare principle

1. The best interest of the child shall be paramount in a matter concerning a child.

2. The best interest of the child shall be the primary consideration by a Court, person, an institution or any other body in a matter concerned with a child.

What is the best interest of the child is a question of fact and is to be decided by any body, institution or person (including parents, family members, educators, judges etc.), that is dealing with any matter involving or concerning a child. Therefore, while the interest and convenience of persons such as parents, family members, etc. may be important, the ‘best interest of the child’ must always remain paramount and override any other interest in any matter where a child is concerned.

General Rights and duties

Ghana is signatory to the United Nations Convention on the Rights of the Child (UNCRC) and bound by international law to implement the terms of the convention. In addition, the country’s 1992 Constitution outlines the scope and enforcement regime of the rights of children in Ghana.

Among others the Constitution provides that;

• every child has the right to the same measure of special care, assistance and maintenance as is necessary for its development from its natural parents, except where those parents have effectively surrendered their rights and responsibilities in respect of the child in accordance with law;

• every child, whether or not born in wedlock, is entitled to reasonable provision out of the estate of its parents;

• the care, maintenance and upbringing of children is the natural right and obligation of parents and must be undertaken in cooperation with such institutions as Parliament may, by law, prescribe in such manner that in all cases the interest of the children is paramount;

• every child has the right to be protected from engaging in work that constitutes a threat to his health, education or development.

• a child should not be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

• no child should be deprived by any other person of medical treatment, education or any other social or economic benefit by reason only of religious or other beliefs.

These children’s rights together with others such as the right to non-discrimination; right to education and social activity; the right to a name and nationality; a right to parental property and the right to be protected from exploitative labour, torture, and degrading treatment are to be respected by all. It should be noted that the parents of a child are the primary or main duty bearers when it comes to the rights of children. The duty comes with ‘natural rights’ which may not be taken away from them without cause or through lawful channels.

Enforcing the rights of children

How does a child claim its rights or enforce them if they are not considered as adults who are mature enough to engage in certain lawful activities including represent themselves in court? This is an extremely important issue, especially when those who should naturally ensure that the child’s rights are maintained are the ones violating the rights.

Well, the law makes provision for this. Generally, a parent, guardian or relative who is also an adult can act on behalf of a child. Most of the time one parent bears the burden of another who is violating the rights of a child by not providing care or maintenance, or by refusing to pay for a child's education, or by neglecting a child, or by abusing a child etc. In such a case, that parent or guardian is entitled to take any legal action against the other for those violations. In some cases where the circumstances dictate, a probation officer or social worker is authorised to take up the duty.

In any case, an adult who becomes aware that a child’s rights are being violated, is duty bound to report or alert the relevant authorities for the matter to be investigated or addressed. Ordinarily, the social welfare centres, district assemblies, police stations or even district courts can be approached for direction. The Commission on Human Rights and Administrative Justice (CHRAJ) also receives reports and acts on the violation of the rights of children. A lawyer can also be consulted. Where a matter has to be taken to the courts on behalf of a child however, a parent, guardian or relative is required to act through a lawyer and not by themselves. This is to reduce the chances of a child being taken advantage of by a relative or known person and to ensure that the child’s interests are competently represented under the law.

Children are probably the most vulnerable group of persons in society. They rely on us to protect their rights. The second part of this article will deal with issues of parentage, maintenance, care and custody of children.