The Concept of ‘Best Interest of Child’ in Sri Lanka

Family Law DEVELOPMENT OF THE CONCEPT ‘BEST Interest OF CHILD’ IN SRI LANKA

Question:

Measure the development of construct ‘Best Interest of Child’ in one of the undermentioned legal powers.

  1. South Africa.
  2. India.
  3. Sri Lanka.
  4. United Kingdom.

Content

1.Introduction

1.1The Child

2.Custody, Guardianship, and Parental Power

2.1Parental Power

2.2Custody and Guardianship

3.The Best Interests of the Child in Sri Lankan Context

3.1Concept

3.2Impediments

4.Conclusion

DEVELOPMENT OF THE CONCEPT

‘BEST Interest OF CHILD’ IN SRI LANKA

1.Introduction

This papers will discourse the construct of Best Interest of Child in Sri Lanka in brief.

Normally, kids were merely supposed to be seen but non to be heard where their positions and involvements did non take in to consideration. Such built-in ideas about the position of the kids in our society have made them in danger of physical, psychological, emotional, and sexual maltreatments. Without any mistake on their manus they suffer a batch due to the believing form of the society. By the clip the authoritiess prevailed clip to clip though they understood this state of affairs didn’t make indispensable legal agreements to protect the rights of the kids sing the International conventions on kids and other facts. Though it is so, the tribunals make a scope of determinations which affect on kids, to find the detention, care, safety, and to end the parental rights by judicial reading of some international criterions and some legislative acts of the state. Whenever a tribunal makes such a determination, it must see whether that determination is in consistent to the “best interests” of the kid.

1.1The Child

Definition of term “ the kid ” is basically of import in discoursing the ‘Best Interest of Child’ . Oxford Dictionary defines ‘the Child’ as, ‘aimmature human being below the age of pubescence or below the legal age of bulk’ . [ 1 ] Convention on the Rights of the Child ( CRC ) has defined the term ‘child’ as a individual who is under the age of 18 old ages [ 2 ] . Legal Age of Majority in Sri Lanka is defined in the ‘Age of Majority Ordinance Number 02, 17 of 1989 of Sri Lanka’ as ‘Eighteen old ages made the legal age of majority’ . [ 3 ]

Though there is no peculiar definition for the term of ‘best involvements of the child’ , by and large it gives out the significance as, the consideration that a tribunal commence when make up one’s minding what kind of services, actions, and orders will function on a kid in best and besides who is best suited to take attention of a kid. ‘Best Interests of a Child’ is determined by the tribunals, sing figure of facts related to a peculiar child’s conditions and the parent’s or guardian’s position and his/ her capacity as parent, to the child’s safety and wellbeing. [ 4 ]

2.Custody, Guardianship, and Parental Power

When it discussed the construct ‘Best Interest of Child’ , first constructs to be discussed are Custody, Guardianship, and Parental Power of kids.

2.1Parental Power

This construct denotes the connexion between parents and kids and that connexion or the relationship is based on the rights and responsibilities of both parties. Parental power construct varies with the clip and the topographic point due to cultural and spiritual grounds and besides due to jurisprudence and legitimacy despite of echt demands of a kid.

ALSO READ  Discuss the impact of crimes against Public Order

2.2Custody and Guardianship

The two constructs, Custody and Guardianship make out the pes way to their right to be take attention till the age of bulk, and besides the parental power over kids. The jurisprudence has the challenge to do equilibrium between detention and care of kids. Detention and Guardianship are two different constructs and could be exercised either by an person or by different individuals. Detention is the right to maintain the kid physically where as care doesn’t involve in physical control, it merely doing determinations about the facets of kid. In jurisprudence the whether the kid is mature plenty to believe, he or she is non authorized to province their position on, to whom from among the female parent, male parent and a comparative the custodianship or the care him or her to be awarded. Though the kid strongly opposes the individual who is granted with him or her care or detention the tribunal can non see it, it can merely offer the detention or care o the individual or individuals who are authorised by the jurisprudence.

3.The Best Interests of the Child in Sri Lankan Context

3.1Concept

This portion of the reply will discourse how the rights of kids recognized under the common jurisprudence of Sri Lanka in the adjudications of issues related to detention and care of kids. Common Law of the state, Roman Dutch Law is unwritten on detention and care issues, and as a consequence the reply can be constructed through judicial readings merely.

The term “best interests” mostly expresses the wellbeing of a kid. It is determined by an mixture of single state of affairs, such as the age, the degree of adulthood of the kid, the presence or absence of parents, the child’s environment and experiences. The Convention on Rights of the kid ( CRC ) lays down that:

  • The best involvements must be the finding factor for acceptance [ 5 ]
  • Separation of a kid from parents against their will [ 6 ]
  • The best involvements must be a primary consideration for all other actions impacting kids [ 7 ]

By the Article 30 of CRC right of a kid to be nurtured in civilization of his or her is enforced [ 8 ] , but by this the construct of the best involvement of kid restricts to cultural contexts which make uncertainness. Sri Lankan Torahs on detention and care of kids besides adopt an utmost cultural relativist state of affairs when it sing the above right worsening human rights of kids.

The facets of physical psychological, societal and many other grounds which sets out the best for a kid is decided by parents in most instances. Though it is so children’s lives are non measured as a private topic of the parents entirely, the province ( the Magistrate Court ) interferes as the upper defender of all bush leagues. It is the court’s duty to hold sufficient apprehension of the peculiar state of affairs and demands of the kid when make up one’s minding what is best for him or her, so to that the tribunal has to listen to the kid in order to understand the state of affairs and to give a opinion which will non do any ambiguities or absurd state of affairss. Since every individual has a right to partake in the tribunal proceedings that affects to his or her life this would maintain the child’s rights non infringed. [ 9 ],[ 10 ]

ALSO READ  The Roles Of Enterprise Resource Planning Systems Information Technology Essay

Since Sri Lanka is a Manichaean state, without an enabling legislative act passed in the Parliament the Convention on Rights of Children ( CRC ) does non straight go a domestic jurisprudence on the understanding itself. But such a legislative act ne’er passed by the Parliament in regard of the CRC, therefore the convention become in to power merely through the judicial reading.

Though the Sri Lankan Constitution guarantee the Fundamental right of equality before the jurisprudence and equal protection before the jurisprudence to all the citizens, the judgements given in the instances which dealt with detention and care of had more favors in the societal and cultural facets protecting the construct of parental power and discriminatory right of farther, than the rights of the kid.

The common jurisprudence of the Island which is based on the rules of English jurisprudence and Roman Dutch jurisprudence does non hold any statute version of Torahs in relationship to the affairs of detention and care, the processs for issues associating to such affairs are elaborated in the Civil Procedure Code [ 11 ] . Besides the Tsunami ( particular commissariats ) Act [ 12 ] provides way on substantial and procedural affairs associating to acceptance, care and detention of kids, who were affected due to the natural catastrophes and has introduced the construct of farther attention.

As it mentioned above in the Island it is largely see the parental power and discriminatory right of the farther in make up one’s minding the detention or the care of a kid. Supreme Court in the opinion ofIvaldyVoltIvaldy[ 13 ] adverting the discriminatory rights of a farther over his kids pronounced that, the male parent could non be disadvantaged of his discriminatory right to guardianship and custody if no danger is at that place to child’s life, wellness or ethical motives. Besides in the distinct instanceMadulawathieVoltWilpus[ 14 ] the tribunals held that,so long as the bond of marriage subsists, the male parent, as the natural defender, has the discriminatory right to the detention of a kid Born of the matrimony, and Siva Supramaniam J. quoted in the opinion that, “In an application of this nature for the detention of a kid, the paramount consideration is the public assistance of the kid. It is settled jurisprudence that, capable to that consideration, so long as the bond of marriage subsists, the male parent, as the natural defender, has the discriminatory right to the detention of a kid Born of the matrimony.”

In the instance ofWeragodaVoltWeragodathe Court has maintaining away the rule of discriminatory right took the side of the construct of best involvement of the kid and held that,the cases laid down inIvaldyVoltIvaldyare merely a few illustrations of particular evidences upon which the tribunal can interfere with father’s discriminatory right, and that the paramount consideration of the tribunal in detention differences should be the public assistance of the kid.[ 15 ] This determination was followed in few instances decided subsequently such asFernandoVoltFernando[ 16 ] andKamalawathieVoltde Silva[ 17 ].

The Sri Lankan opinions in favor of the construct of best involvement of kid was ascended above the construct of parental power when the Court of Appeal given its determination onJeyarajanV.Jeyarajan[ 18 ] keeping that,the paramount consideration in detention differences should be the best involvement of the kid.

This shows that the Sri Lankan tribunals sing the rights of the kids in local and international contexts has given its first topographic point to the construct of best involvement of kid maintaining off the rights of parents and others though there is a deficiency of legislative guidelines and Torahs to find how the tribunals should make up one’s mind the best for the kid. If such Torahs and guidelines were there it would give a comprehensive guideline or a border to the bench to make up one’s mind the best for the kids.

ALSO READ  How will emiratization succeed? Essay

3.2Impediments

The significance of sing the best involvement of the kid has been recognized in twelvemonth 2005 in the International Covenant on Civil and Political Rights Act ( ICCPR ) . [ 19 ] But seting Sri Lanka in an International duty, the ICCPR Act and the Civil Procedure Code of Sri Lanka does non bespeak how the best involvement of the kid should be ensured. [ 20 ]

In Sri Lankan courts the kids are heard depending on the judges’ position, but as the Sri Lankan tribunal process is an adversarial system, the ambiance of the tribunals is non mush friendly to the kids to show his or her thoughts freely as per the rights given by the Constitution and Convention on Rights of Children.

4.Conclusion

It is hard to convey up the rights of kids in a context like Sri Lanka where by the civilization plays a important function in steering the kids harmonizing to the imposts and traditions of the parents or else grownups. Courts besides in most of the clip given the determinations giving more favour to such imposts and etiquettes despite of the involvement of the kid where as it can non be accepted as such actions violate the human rights. Hence the kids who are victims of the detention and care differences, depending on their adulthood and capableness should be granted to show their positions sing the determinations against their life. And besides the tribunal process in such instances must be in a kid friendly mode in order to let the kid to show his or her ideas freely.

Since the kids are the hereafter of our state the jurisprudence of the state must hold proper commissariats to protect their hereafter. Concept of the Best Interest of Child should be enforced by a legislative act in order to do guidelines for the tribunals to move in the instances dealt with the children’s detention and care despite of their civilization, race, age, and gender.

1

RESTRICTED