As regards the custody o illegitimate children, the Affiliation Act provides that where ‘an order has been made under that act against the putative father for payments in respect of a child, the court may at the time of making such order or from time to time thereafter, appoint some other person other than the mother to have the custody of the child if the court is satisfied that the mother is not a fit and proper person to have the custody of such a child or if the mother dies or becomes of unsound mind or is in prison . It further provides that the putative father of the child have the custody of the same if he so applies. Further, the constitution provides that the women have a right to acquire and retain custody … of children. This means that whenever the court is deciding on the issue of custody of the children, it should bear in mind that women have a right not to be discriminated against on the basis of gender and as such, if it is in the best interest of the child that the custody should be granted to the mother, the court should do so without discrimination.
However, the parental rights to custody of the child ceases when the child attains majority or where he marries or as a result of a court order.
THE LAW RELATING TO ACCESS TO CHILDREN
The right of access is of practical importance when physical possession of the child is with someone else. For instance, after divorce and the child has his home with one parent. The object is to enable the parent and child to keep in touch with each other by allowing periodical visits at specified times. For example, between stated hours each Saturday or Sunday or holidays for longer periods. The right to access is given to the parent who is not granted custody of the children in divorce, nullity or judicial separation proceedings. The welfare of the child should remain the paramount consideration however, and access will be refused if the parent is not the fit and proper person to see the child at all. In the case of C v C, the mother was refused the right of access because she was suffering from manic-depressive psychosis and as such, she was not a fit person to see the child at all. In other cases, the court will refuse or discontinue the right of access although the parent is not in any way unfit person to have access to the child. Thus in B v B, the mother had divorced the father because of cruelty and was awarded custody of the son. On the father’s application for access, the mother gave evidence that the son was wholly unwilling to continue his visits to the father, which he disliked. The son was interviewed and accepted that he did not want to be in contact with his father. The court held that in determining whether a divorced parent not having custody should have access, the prime concern is welfare. Accordingly, notwithstanding the general rule that it was the basic right of every parent to have access to his child, in certain exceptional cases such as those in the current case, the court may order that access be discontinued, although the parent was not in any way unfit person to have access to the child.
ACCESS AT CUSTOMARY LAW
At customary law, in both matrilineal and patrilineal systems of family law, a parent has an unrestricted right of access to his or her children because the termination of the marriage does not sever the relationship that has been created by the defunct marriage.
ACCESS AT STATUTORY LAW
Under statutory law a parent’s right of access to his, her child is restricted, or it can denied. In the case of Roberts v Roberts, the wife petitioner applied for maintenance for herself and the two children of the marriage. The husband applied for access to the two children because an order, the petitioner had been granted an unconditional custody of the children. On the application for access to the children, Mead, J., ordered that the respondent should have access to the children of the marriage and that he should be permitted to take the children to his house during normal school periods on two afternoons in every week then on a Saturday and Sunday, and to have the children with him during each of the three school holidays at Easter, the long holiday and Christmas period of half of each holiday. Likewise in the case of Pentony v Rennie the High Court of Rhodesia dissolved the marriage between the parties , and the custody of the only child of the marriage to the respondent . Since the dissolution of the marriage, the applicant stayed in Rhodesia and the respondent stayed in Malawi. On the applicants application for access to the child, Mead, J., held that an order for reasonable access of the plaintiff to the child at seven days notice would be granted and that the child would be required to visit her father in Salisbury at least twice a year. These cases illustrate the fact that the parent who is not awarded custody of the child at statutory law is restricted in his right of access to the child.
HOW CUSTODY OF CHILDREN AND ACCESS AFFECTS PARENT’S RIGHTS AND OBLIGATIONSTOWARDS CHILDREN
Issues of custody and access arise in cases of divorce, judicial separation and nullity of marriage. The award of custody means ‘sole’ custody and divests the unsuccessful parent of the custodial rights respecting the child. This means that custody or access affects the parent’s rights and obligations towards their children in that only those parents who have the custody of or access to the children can exercise their rights and obligations over the children. Both at customary law and statutory law, a parent who has the custody of the child and the parent who has access to the child at the time the child is visiting him or her , has the obligation to maintain the child , that is he or she must provide for the child with all the necessaries like shelter , food , clothes and medical care . In addition, under customary law in the patrilineal system of family law, the parent who has custody has the obligation to pay lobola for the male child when the child intends to marry. It is a misdemeanor for the parent to neglect to provide it with food , clothes , bedding and other necessaries .
On the other hand, both at statutory and at customary law, the parent who has custody of the child has custodial rights over the child. These rights include the power to control education, the choice of religion, the administration of the infant’s property, entitlement to veto the issue of a passport and the entitlement to withhold consent to marriage. He or she also has the right to consent to medical treatment affecting the child and to chastise the child. Under the patrilineal system of law ,he or she has the right to accept marriage payments (lobola)in respect of the intended marriage of his or her daughter.
- THE RELEVANCE OF AFFILIATION OF CHILDREN
Affiliation is an act or condition of being affiliated, allied, or associated with another person or body . Affiliation of issue is hence the alliance or association or union or attachment of issue to a particular clan is for life and at customary law , rules relating to the granting of affiliation of issue are more or less predetermined by the prevailing custom.
AFFILIATION AT CUSTOMARYLAW
MATRILINEAL SYSTEM
Upon the termination of the marriage, the children are usually affiliated to the clan of their mother. In Mkandawire v Mkandawire, the marriage between the parties was contracted in accordance with the matrilineal system of the central region. The wife was granted a decree of divorce because her husband had treated her with cruelty. The husband claimed that the issue of the marriage should be affiliated to his clan. The National Traditional Appeal Court dismissed his claim holding that, on the question of the children, where the marriage is contracted under customary law of a matrilineal society, the custody of the children is granted to the mother. If, however, the spouse permits or the maternal uncle permits, the children in question may be affiliated to the clan of the father. At any rate, the father can determine his children’s secular and religious education. Dr J.O. Ibik wrote that the husband is not entitled to the custody of the children of the marriage although he may determine the education and training with the consent of their maternal uncle … nowadays … there is an increasing tendency to allow a father to exercise the natural rights of a parent over his children.
It is very difficult for a father of an illegitimate child to win his affiliation. As a general rule that where a man and a woman cohabit in an irregular union, the children will be affiliated to their mother’s clan. In Kasasi v Bakaimani, the putative father of an illegitimate child wanted the child to be affiliated to his clan. The relevant customary law was that of the matrilineal system in the southern region. The court said,
“In conclusion, we would like to state that in the circumstances of this case,
the appellant is not entitled at customary law of the southern region to the
custody of the child unless he is allowed to take the child by the respondent
or her uncle.”
The above quotation states that the exception to the general rule and it is to the effect that the putative father of the child can have the child affiliated to his clan if the mother of the child or his maternal uncle allows him to do so.
To whichever clan the child is affiliated to, the father is supposed to maintain him. In Manchichi v Manuel the National Traditional Appeal Court stated obiter that where a man and a woman have issue as a result of an irregular cohabitation, the man is supposed to maintain the children in question because the welfare of the children is not affected by the illegality of the irregular union.
PATRILINEAL SYSTEM
Upon the termination of the marriage the children of the marriage, if any , are generally affiliated to the patrilineal clan . In Mzimba and Karonga districts however, the party found responsible for the breakdown of the marriage loses the affiliation of the children of the marriage. The case of Karambo v Sichali is to the effect that in Karonga District the party at fault, loses both dowry and custody of children on the dissolution of the marriage.
On the other hand, illegitimate children cannot be affiliated to the patrilineage because there is no marriage between the parties. They are affiliated to the clan of their mother. Unlike the issue of an irregular union in the matrilineal system, the father of the children of an irregular union in the patrilineal is under no duty at all to maintain the children. In Njanje v Mhango , the parties had one issue of their irregular union. The traditional court refused to make an order providing for the maintenance of the child of the union by the respondent after finding that there had not been a valid marriage between the parties because the correct formalities had not been complied with. The National Traditional Appeal Court affirmed the judgment of the lower court and held that at customary law in lobola paying societies, the man cannot be compelled to maintain the of an irregular union.”
AFFILIATION AT STATUTORY LAW
Under the affiliation Act, a bastard child is an illegitimate child or a child conceived and born outside wedlock. The Affiliation Act is an attempt to ensure parental care for the child in cases of illegitimate children. The Act gives the mother the right to apply to the court either before birth or within twelve moths from the birth of the child, to have the alleged father adjudicated putative father by a magistrate court. If the application is successful, the putative father is ordered to pay for the maintenance and education a sum of money not exceeding K250for a month or a lump and final sum of K3000. To That effect is the case of Khoza v Mulenga where the respondent brought affiliation proceedings in the Resident Magistrate’s Court, claiming that the appellant was adjudicated to be the father of the respondent’s children and was ordered to pay a monthly sum in respect of each child. The High Court dismissed the appellant’s appeal against the decision of the lower court and held that the order for maintenance was not excessive as he alleged in his appeal and it affirmed that he was the putative father of both children dismissing his allegations that he was not the father of the second child. The Affiliation Act impliedly provides that custody is prima facie given to the mother of the illegitimate child. The Actprovides that whenever under the Act an order has been made against the putative father for payments in respect of a child, the court may appoint some other person to have custody of the child of the child of the court is satisfied that the mother is not a fit and proper person to have custody of such child or if she does or becomes of unsound mind or is in prison and furtherthe court may also grant the custody of such child to the putative father if he applies for the child’s custody. This in effect means that the illegitimate child is affiliated to its mother’s clan in normal circumstances under statutory law in Malawi except where (as stated above)
HOW AFFILIATION AFFECTS THE CHILD’S RIGHTS AND OBLIGATIONS
The basic point is that it is to the clan the child is affiliated to that he she owes his or obligation and it is to that same clan that the child exercises his or her rights. Since at customary law, the child is affiliated to its mother’s clan, it is to the same clan that it owes its rights and obligations. The constitution prescribes that all children, regardless of the circumstances of their both, have a right to a name, family and nationality. Children have a right to know and be raised by their parents that their health, education, physical, mental, spiritual and social development should be protected. To such end, children should be protected from economic exploitation or any treatment work or punishment that is likely to be “prejudicial or hazardous.”
Affiliation affects the child’s rights in that, it is his or her mother’s clan that is under an obligation to accord the child or any member of her clan has the duty to name the child. In addition, the mother’s relative has the duty to raise the child in a family. It is also incumbent upon the mother and her clan to protect the child from economic exploitation or any treatment, work, or punishment that is or is likely to be prejudicial to the child’s health, education, physical, mental, spiritual and social development.
Likewise, affiliation affects the child’s obligation in a similar way in that the child owes its obligations to its mother or its mother’s clan and not to its father or to its father’s clan. For instance, the child is under an obligation to render domestic services to its mother or its mother’s relative in whose custody it is placed.
At statutory law, where the custody of the child is granted to the father, under the Affiliation Act as stated above, the child will be affiliated to its father’s clan and hence the child will owe his rights and duties to his father. Where the custody of the child remains with the mother, the child will be affiliated to her clan and he or she will owe the mother his rights and obligations.
IV. RIGHTS AND OBLIGATIONS TOWARDS THE ADOPTED CHILD
Adoption is the process by which the legal relationship between a child and his natural parents is severed and re-established between the child and a third party or parties. It is impossible to adopt a child without a court order. A mere agreement whereby a parent seeks to transfer his rights and duties to someone else in ineffective for this purpose.
THE LAW OF ADOPTION UNDER THE ADOPTION OF CHILDREN ACT
In Malawi, the institution of adoption is wholly a statutory creation. It is created by the Adoption of Children Act. The law of adoption as stipulated in the Act as to who may adopt a child is that any person may be authorized by a court order to adopt the infant so long as he is over twenty-five years and not less than twenty-one years older than the infant in respect of whom the application is made.But where the applicant and the infant are within the prohibited degrees of consanguinity, the court may, if it thinks fit, make an adoption order notwithstanding that the applicant is less than twenty-one years older than the infant.However, a sole male applicant will not be allowed to adopt a female infant unless there are circumstances in the opinion of the court, which satisfy the making of such order. The essence of this prohibition is to guard against the danger of sexual corruption of the female child. Where the sole applicant is a married man or woman, the court may require that the consent of the wife or husband of the applicant be obtained.The object of this rule is to preserve family peace and harmony by ensuring that both spouses accept the adopted child.
On who may be adopted, the Adoption of Children Actprovides for the adoption of infants, that is, persons under the age of twenty-one years. It is an essential prerequisite to the making of an adoption order that both the applicant and the infant to be adopted must be resident in Malawi. Residence connotes some degree of permanence. On the issue of consent, an adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant.Parental consent is made essential for adoption because of the serious legal consequences which adoption brings on the relationship between an infant and his natural parents.
On jurisdiction, the court having lawful jurisdiction to make adoption orders under the Adopted Act is the High Court. At the option of the applicant, a court of a Resident Magistrate or of a Magistrate of 1st Grade also has the lawful jurisdiction to make adoption orders.The function of the court in the adoption of children procedures is that in every adoption order, the court must be satisfied that every person whose consent is necessary under the Adoption Act and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made. In the case of any parent, he or she must understand that the effect of the adoption order is to permanently deprive him or her of his or her parental rights.The consents should be in writing and they must be attested by one witness. Before making the adoption, order the court must also be satisfied that the order if made will be made for the welfare of the infant, having regard to the age and understanding of the infant.The court must also establish that the applicant has not received or agreed to receive any payment or other reward in consideration of the adoption order, unless the court otherwise sanctions.It shall also be unlawful for any adopter or for any parent or guardian except with the sanction of the court to receive any payment or other reward in consideration of the adoption of the infant.
THE LEGAL EFFECTS OF ADOPTION
The legal effects of the adoption are that upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents or guardian of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished and all such rights, duties and obligations shall rest in and be exercisable by and enforceable against the adopter in lawful wedlock.The effect of the adoption order is therefore twofold.
First, it severs all parental rights and obligation between the infant and his natural parents.
Second, and of great importance, it establishes the legal relationship of parent and legitimate child between the adopter and the adopted infant. The adopted child thereafter stands in relation to the adopter as a child born in lawful wedlock. In respect of the custody, maintenance and education of the infant, the adopter or adopters, of the child are husband and wife, he or she or they are in the position of his natural parent(s).
RIGHTS AND OBLIGATIONS OF PARENTS TOWARDS THE ADOPTED CHILD
As already, stated above, the legal effect of the adoption orders is that; it severs alal parents rights and obligations between the infant and his natural parents and establishes the legal relationship of parent and legitimate child between the adopter and the adopted infant. This means that the parent can exercise all the parental rights and duties exercisable by a parent over a natural child or over the adopted child. For instance, the parent has the right to physical possession of the child, the right to inflict moderate and reasonable corporal punishment for the purpose of correcting the child or punishing an offense, the right to the child’s domestic services and the right to consent to the child’s marriage. On the other hand, the parent is under an obligation to maintain the child by providing it with food, clothes and shelter, to secure the secular and religious education of the child and to physically protect the child from abuse.
ADOPTION AT CUSTOMARY LAW
Cases of adoption under customary law rarely exist. This is because, traditionally, children are regarded as a gift from God hence parents are most reluctant to part with their child or to lose all parental rights and obligations. In other cases where the parents of a child are too poor to undertake its maintenance, members of the extended family usually take the child to ensure the continued family membership of the child.
V. PARENTAL RIGHTS AND OBLIGATIONS: COMPARATIVE ANALYSIS AT CUSTOMARY LAW AND STATUTORY LAW
PARENTAL RIGHTS
Parental rights are the sum total of the rights of the parent or parents in and to the child as well as the rights of the child in and to the parent or parents.
At customary law, the parent has the right to the custody of the child. This right, however, depends on which type of marriage one is talking about. In matrilineal marriages, the mother has the right to the custody of both legitimate and illegitimate children. However, his right is not absolute since the father of a legitimate child can have custody of the same if the mother or his maternal uncle so permits.
On the other hand, in matrilineal marriages, the father has the right to custody of his legitimate children. It is only in Mzimba and Karonga where if the marriage between the parties is dissolved due to the fault of the husband, he loses custody of the children to the wife.In the case of illegitimate children, the mother has the right to custody of the children.A right to the custody of the children also exists at statutory law. This right is however different under the two systems of law because at statutory law, the parents have an equal right to custody of a legitimate child and the court grants the custody of the child to either parent with regard to the child’s welfare and best interests. At customary law, the custody of the child is granted depending on the rules prevailing in the patrilineal and matrilineal systems of law respectively.
The right to custody is also different with regard to illegitimate children. At statutory law, the mother has the right to the custody of an illegitimate child but the father can exercise his rights by applying to the court.
At customary law, under the patrilineal system of law where the payment of lobola is essential for the validity of a marriage, the father has the right to receive lobola for the female children.This right is non-existent at statutory law where there is no need for bride-payments in order to validate an intended marriage.
At customary law, under both the patrilineal and matrilineal systems of law, the parent who loses the custody of the children has an unrestricted right of access to the children.Also a right of access to the children by a parent who loses custody of the same, also exists at statutory law but it is different from the similar right at customary law in that such a parent has a restricted right of access to the children.
At customary law, the parents have the right to receive damages in respect of their children. These damages can be ‘chapamusana’ that is damages payable by a man to the parents of a girl following elopement of the man and girl. Such a right does not exist at a customary law.
At statutory law as well as at customary law, a parent has the right to administer reasonable punishment for the purpose of correcting a child whenever he does a wrong or he misbehaves. This right is similar at both systems of the law because it is legitimate at both systems of laws to chastise a child.
At a statutory law, both parents of a legitimate child and the mother of an illegitimate child have the right to the domestic services of the child while he resides with them. The services can also be of a contractual nature. This right is not enforceable but it is an actionable tort to do an act wrongfully depriving a parent of his child’s services. In the case of Mvula v Chinjala, the plaintiff father claimed damages against the respondent for seducing his daughter and thereby impregnating her. The father submitted that because the respondent had seduced his daughter, he had been deprived of her services.
Skinner, C.J. held that the plaintiff father was entitled to recover damages for the loss of services for there was proof that her pregnancy had prevented her from continuing to cook and wash for the family as she had done before.
This parental right is similar to the parental right to services at customary law but they are different in that; at customary law, it is not an actionable tort to do an act wrongfully depriving a parent of his child’s services.
Further, the parent has the right consent to medical treatment.A similar right exists at customary law. Under both systems, the parent should consent to medical treatment for the child since the child is not old enough to understand the nature of the treatment or operation. If the parent gives his consent, the medical practitioner should have an absolute defense to a charge of assault.
At statutory law, the parents have the right to a child’s name. A legitimate child takes his father’s surname. If either parent (or any one else) tries to change the child’s surname without the other’s concurrence, the latter may apply for an injunction to restrain him.
At customary law, there is also such a right. A legitimate child takes his father’s surname.
At both statutory and customary law, the parents have the right to determine the child’s religious upbringing. Often this right goes hand in hand with the right of custody.The right is similar in that, at both statutory and customary law, the parents have the right to determine the religious upbringing of the child but the welfare of the child is the first and paramount consideration.
At both statutory and customary law, the parents have the right to consent to their children’s marriages. The right differs greatly, at statutory law, both parents have this right but in the patrilineal system of customary law, only the father has the to consent to the child’s marriage. In the matrilineal system of customary la, none of the parents has this right. It is the child’s maternal uncle has that right.
At statutory law, the parents have the right to veto the issue of a passport.At customary law, a similar right exists. At customary law, and at statutory law, the parents have the right to administer a child’s property. This right includes the parents’ right to receive and recover in his own name for the benefit of the child, property to which the child is entitled.
At statutory law, the parents also have a right to represent a child as a ‘next friend’ in all court proceedings where the child is a party except cases involving child protection or the upbringing of the child.
PARENTAL OBLIGATIONS
At statutory law, the parents have the duty to maintain their children. The parents have the duty to provide their legitimate children with necessities like food, clothes, shelter, and medical care. In the case of illegitimate children, the mother has the obligation to maintain the children. Where the father is adjudicated to be the putative father of an illegitimate child, and thereby ordered to pay maintenance, he has the obligation to maintain the child. A similar duty exists at customary law. But is different in that, under the patrilineal system of law, it is the father that has the duty to maintain the children. Under the matrilineal system of law, in the past, the husband had no rights of custody and control over the children of the marriage, including the duty to maintain the child. These rights and the duties to maintain were vested in and exercisable by the children’s maternal uncle. These days, especially in the urban areas, where virilocal residence is predominant, there is an increasing tendency to allow a father to exercise the natural rights of a parent over his children. However, the customary law in the matrilineal system of law is still the same. The father has no duty to maintain his children.
The parents also have the duty to protect the child. This duty applies both at customary law and at statutory law. The parents are supposed to protect the child against physical or mental injury. The constitutionactually provides that children are entitled to be protected from economic exploitation or any treatment that is, or is likely to…be harmful to their health or to their physical, mental, or spiritual or social development. A parent should also take adequate steps to secure its moral welfare.
The parents also have the duty to secure the secular and religious education of their children. This duty is applied both at customary law and at statutory law. Parents have the duty to send their children to school and to provide them with secular education. At customary law, the duty is different in that; under the matrilineal systems of law, it is the father that has the duty to send the children to school and, under the matrilineal systems of law, it is the maternal uncle that has the duty to send the children to school.
Lastly, the parents have the duty to name the child.The children have the right to be named hence; the parents have the corresponding duty to name them. The duty applies at both customary and at statutory law to both legitimate and illegitimate children.
VI. CONCLUSION
This paper has been concerned with a comparative survey of parental rights and obligations towards their children at customary law and at statutory law in Malawi. It has been shown that a parent is a natural father or mother of a legitimate child, or an adoptive father or mother or a putative blood father of an illegitimate child. On the other hand, a child is any person under 16 years of age. Further, the parental rights and obligations differ based on whether they are governed by statutory law or the matrilineal system of customary law or the patrilineal system of customary law.
Custody has been defined as the whole bundle of rights and powers vested in a parent. Under the matrilineal system, the custody of both legitimate and illegitimate children is granted to the mother but the father may have custody of the same if the wife or the maternal uncle so permits. Under patrilineal system, custody of legitimate children is granted to the father, except in Mzimba and Karonga districts where the party responsible for the breakdown of the marriage, loses custody of the children. At statutory law, the custody of the children is decided by the court, taking into account the overriding consideration of the welfare of the child.
At customary law, a parent has an unrestricted right of access to his or her children. At statutory law, the right is restricted by the court and in some cases it may be denied if its in the best interest of the child to do so. Custody or access affects a parent’ rights and obligations to their children in that; it is the parent who is granted custody of the same or the right access to the children that can exercise the rights and obligations over the children. Affiliation of children is the attachment of the children to a particular clan. Under the matrilineal system of law, the legitimate and illegitimate children are affiliated to their mother’s clan except where the mother or the maternal uncle allows that the children should be affiliated to their father’s clan. Under the patrilineal system of law, legitimate children are affiliated to their father’s clan except in Mzimba and Karonga districts where the party responsible for the breakdown of the marriage loses the affiliation. The illegitimate children are affiliated to their mother’s clan. Under statutory law, the illegitimate child is affiliated to his mother’s clan except where the father applies for his custody. Affiliation affects the child its obligations in that it is to the clan that the child is affiliated to that he owes his rights and duties.
Adoption is a statutory creation. Its effect is to sever parental rights and obligation between the child and his natural parents and it establishes the legal relationship of parent and legitimate child between the adopter and the adopted child. The rights and obligations of parents towards the adopted child are the same as those of a natural parent towards the natural child. For example, the right to physical possession or the obligation to educate. Adoption does not exist at customary law.
At both statutory and customary law, the parents have the right to custody of the legitimate children. At statutory law, both parents have the equal right to custody but under the matrilineal system of law, the mother has the right to custody and under patrilineal system of law, the father has the right to custody of the children.
Both at customary law and at statutory law, parents have a similar right to the services of the child.
Both at customary law, And at statutory law, the parents have the similar right to consent to medical treatment given to their child.
At both customary law, and statutory law, the father has the right to the child’s name. The illegitimate child takes after the mother’s name.
At both customary law and statutory law, the parents have the right to determine their child’s religious upbringing.
At both customary and statutory law, the parents have the rights consent to their children’s marriage. This is different at customary law because in matrilineal system of marriage, the parents do not have the right to consent to the child’s marriage, it’s the maternal uncle’s right to consent to the marriage of the child and in patrilineal system of marriage, it is only the father that has the right to consent to a child’s marriage.
Both at statutory and at customary law, the parents have a similar right to veto the issue of a passport.
Further, under both systems of law, the parents have the right to administer their children’s property.
At statutory law, the parent has the right to represent the child as a “next friend” in all court proceedings.
At customary law, in the patrilineal system of law, the father has the right to accept lobola in respect of his daughter. Further, at customary law, the parents have the right to receive damages in respect of their children for example; chapamusana.
These rights do not exist at statutory law.
Parents also have parental obligations over their children. At statutory law, the parents have the right to maintain the legitimate child, in the case of illegitimate children; the mother has the duty to maintain him. In matrilineal systems, the maternal uncle has the duty to maintain the legitimate child and in patrilineal system, the father has the right to maintain the child. In the case of illegitimate children, in matrilineal system of law, both parents have the duty to maintain the child. In the case of illegitimate children, in matrilineal system of law, both parents have the duty to maintain the child. In the patrilineal system, only the mother has this duty.
Both at customary law and at statutory law, the parents have the duty to protect the child. Further, they have the duty to secure the secular and religious education of their children and the duty to name the child.
It is the view of this paper that; many improvements should be made to the law that has been discussed above because of what I have observed from my study.
For instance, under customary law, when deciding who should be granted the custody of the children, the court should regard the welfare of the child as the overriding consideration instead of just following the strict rules of custom despite the fact that there is a threat of physical or moral harm to the child.
Secondly, it has been observed that the parents’ duty to educate their children is not enforceable. This duty should be enforceable. For example; In United Kingdom under the Education Act of 1996,sections 37,39,40 and 40(A), the parents who fail to perform their duty to send their children to school, or whose children fail to attend school regularly are liable to be prosecuted.
Another area that needs reformation is the law that governs affiliation of issue in the patrilineal system of law. It has been observed that the father of the children born out of an illegitimate union is not compelled to maintain the children. The result is that; the whole burden of upbringing and caring for the children falls on the unfortunate woman. This is uncalled for because; it is not many mothers who can afford to maintain and care for their children.
Further, although by S5 of the affiliation Act, the putative father of an illegitimate child was ordered to provide as monthly maintenance of K24 per month now is ordered to pay K250 per month as amended by Act number 30 of 1997 my observation is that the money is still insufficient. The law should provide that the amount of money to be paid as maintenance should not be fixed but should be determined by the court with regard to the means of the putative father.
The Affiliation Act should also be amended generally. It has been observed that the rights of the child under the constitution are restricted. They should be re-enacted and they should be as in the United Nations Convention on the Rights of the Child.
It should also be expressly enacted that the court in deciding cases concerning the custody of children, should regard the welfare of the children as the first and paramount consideration. In applying the welfare principle, the court should have regard to the danger involved in uprooting a child from a familiar environment, the parents’ conduct, the religious and secular education, the child’s age and sex. The court can also take into account accommodation, health and the views of an older child.
1902,Cap 25.01 Laws of MW
The Constitution of the Rep. Of Mw (1994) S23
1969, Cap. 26.03 Laws of Mw Vol. IV
1949, Cap.26.01 Laws of Mw. Vol. IV
Employment of Women, Young Persons and Children Act
The Constitution of the Rep.of Mw (1994) S5
P.M. Bromley, Family Law (London: Butterworths, 1971) 4th Ed. at p304
[1969] 3 All E.R. 578 @585
P.J.Pace, Family Law (Longman Group U.K. L.T.D., 1971)
M. Chigawa, “Customary Law and Social Development: De Jure marriages vis- a- vis de facto marriages at customary law in Mw.” P27
Civ.App.Cas. No.35 of 1985, N.T.A.C. (Unrep.)
Civ.App.Cas. No. 35 of 1985, N.T.A.C. (Unrep.)
J.O. Ibik.The Law of Marriage and Divorce (London: Sweet and Maxwell, 1970)
Civ.App.Cas. No.111 of 1973, N.T.AC.(Unrep)
M.Chigawa, “Customary Law of Marriage and Social Development: De Jure marriages vis-à-vis de facto marriages at Customary Laws in Mw. p29
Civ. App.Cas. No. 54 of 1972, N.T.A.C., (Unrep.)
Civ. App. Cas. No.25 of 1977 N.T.A.C., (Unrep)
1902, Cap. 25.01 Laws of Mw. Vol. IV
1905, Cap. 25.04 Laws of Mw Vol. IV, S31
Divorce Act, Cap. 25.04 Laws of Mw Vol. IV S31
The Rights of the Child and Malawi with Emphasis on the Poor Child: An Agenda for Research. “Garton Sandifolo Kamchedzera” at pg 16
1948, Cap. 25.05, Laws of Mw. Vol. IV S 5(d) para (b)
1946, Cap. 26.02, Laws of Mw Vol. IV S 9(1)
Affiliation Act, 1946, Cap.26.02, Laws of Mw Vol IV S9(5)
The Constitution of the Republic of Mw (1994) S24 (1)(a) (iii)
P.M. Bromley, Family Law,(London, Butterworths,1971) p310
S.M. Cretney, Principles of Family Law, (London: Sweet and Maxwell, 1976) p315
P.M.Bromley, Family Law,(London ,Butterworths,1971)p310
(1971) 115 Sol Jo. 467
33.[1971] 3 All E.R. 682
Civ.Cas.No. 64 of 1975. H.Crt
Civ. Cas. No.179 of 1975 H.Crt
Law and Adjustment: Custody of children. P220
Penal Code Cap7.01 Laws of Mw Vol. 1
Blacks Law Dictionary pg 54
Civ. App.Cas.No. 35 of 1985, N.T.A.C. (Unrep.)
Civ.App.Cas.No. 111 of 1973, N.T.A.C., (Unrep.)
Civ.App.Cas.No. 1 of 1929, N.T.A.C.,(Unrep.)
Makawa v Mhango. Civ.App.Cas. No.91 of 1973 N.T.A.C.,(Unrep.)
Civ.App.Cas.No. 139 of 1978, N.T.A.C., (Unrep.)
Civ.App.Cas.No.58 of 1981,N.T.A.C., (Unrep.)
1946,Cap.26:02,Laws of Mw Vol. IV S2
Ibid S5 as amended by Act no. 30 of 1997
57. Ibid S5
ALR, Mw series, Vol 11 at p57
The Constitution of the Rep.Of Mw. S23
E.I.Nwogugu, Family Law in Nigeria,(Nigeria Heinemann Education Books( Nigeria), LTD1974) 1st Ed. p241
Cap.26:01 Laws of Mw Vol. IV
Adoption Act, Cap. 26:01,Laws of Mw, Vol IV S3 (1)(a)
Ibid (subordinate Courts) Rules S5
Blacks Law Dictionary. P.3004
Kasasi v Bakaimani, Civ.App.Cas.No.111 of 1973, N.T.A.C., (Unrep.)
Nyalongwe v Lungu Civ. App.Cau. No.25 of 1977 N.T.A.C., (Unrep.)
Njanje v Mhango Civ. App.Cas. No. 58 of 1981, N.T.A.C.,(Unrep.)
Mhone v Mkandawire Civ. App. Cas. No.143 of 1978 N.T.A.C., (Unrep.)
Pentony v Pentony Civ. Cas.No. 179 of 1975 H.Crt.
Lwanja v Lungu. Civ. App.Cas.No. 61 of 1978. N.T.A.C.,(Unrep)
H.Crt (Skinner, C.J.) Aug 3rd 1978
Hewer v Bryant (1970) Q.B.357 @ 373
Barbara Mitchels, Child Care and Protection Law and Practice, (London: Cavendish Publishing) [1996] p27
The Constitution S23 (4) (C)