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CHAPTER 12

CHILD RIGHTS

There is no single statute that deals with the totality of child rights in Zambia. The rights of the child are
contained in the Constitution and many other Acts, at least 26 Acts, some of which are the following:

the Education Act

the Penal Code
the Employment of Young Persons Act
the Adoption Act
the Legitimacy Act
the Medical Examination of Young Persons Act
the Employment Act
the Marriage Act
the Births and Deaths Registration Act
the Roads and Road Traffic Act
the Intestate Succession Act
the Wills and Administration of Testate Estate Act
the Affiliation and Maintenance of Children Act
the Juvenile Act
the Panel Code
the Criminal Procedure Code
the High Court Act

There is also the United Nations Convention on the Rights of the Child (UNCRC) which gives a more
complete statement on the definition of a child, or infant, or young person is dependent on a particular
law’s provision e.g. Article 24 (2) of the Constitution of Zambia defines a young person as one under the of
18.

The Marriage Act fixes 16 as the minimum age of marriage unless a judge gives consent for a person
below that age if she/he has not been married before. The Employment of Young Persons Act fixes the age
of 14 and the adoption act defines an infant as a person who has not attained the age of 21 if the person has
not been married. Then we have the ages of 18 and also 21 for different purposes under certain other
general laws. The UNCRC outlaws both capital punishment and life imprisonment without possibility of
release for offences committed by persons below the age of 18. Section 8 of the Penal Code fixes 8 as the
age for criminal responsibility.
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Although there are civil laws governing the maintenance, legitimacy, adoption, inheritance rights of
children, child abuse and child neglect, few people are aware of these laws. Even fewer people are aware
of the UNCRC. Little effort ha been made to sensitise the public about them.

In any case, poverty levels are such that parents or even the State will not enforce obligations over children.
For instance child labour is rampant and the prevalence of HIV/AIDS has deprived many children of their
parents, leaving them open to drug abuse, prostitution begging and living on streets where they usually end
up being abused as they search for ways of sustaining themselves, making the law virtually inadequate and
ineffective.

PARENT CHILD RELATIONSHIPS

A child is a person under the age of 18. However, different statutes describe a child as a minor, a person
under age, or an infant, as the case may be in respect of the aspect legislated upon. For instance with
respect to marriage the Marriage Act describes a person below 16 as a child who requires parental consent
to marry. He or she is old enough to obtain a National Registration Card, or too young to enter a pub or
similar place where alcohol is sold. He or she is old enough to vote or to obtain a driving licence. A child
below 18 has no capacity to enter into a valid contract except for necessaries or apprenticeship. He or she
may not be employed except under special circumstances. He or she may not hold public office (though
under customary law a person of 17 years has been enthroned as a chief Senior Chief Kalindawalo of
Petauke). A person below 18 may not make a will unless he or she is in military service.

The law prescribes ages for different crimes.

The object of the law is to protect children because of their vulnerability due to lack of maturity or
experience in life. They deserve protection till they reach their full potential. The protection is against
unscrupulous actions manipulation, abuse, or over bearance, by adults upon whom they depend.

The law also seeks to protect children from failings whose consequences may adversely affect their future
life. In countries where formal education is compulsory, the intention is to ensure that the child acquires
basic tools for his or her future life.

Allen: Law in the making 17th edition.

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Most children live with their parents, or with the mother, for a big part of their lives, and parents are able to
control their actions and direct how the children grow up. Society expects parents to uphold the interests of
the child, to give direction; and to take any correctional measure with being too excessive.

Parents are expected by society to provide their children with necessaries of life. There are labour laws to
protect the employment of children, or the conditions under which they may be employed. The law thus
sets the balance between the State and the family and within the family, and between parents and the child.

The law places parental responsibility in terms of rights duties and powers. These rights are of
guardianship, education, and general welfare of the child/children. Courts did not interfere with parental
authority until modern legislation and international conventions developed a concern to protect children
who are neglected, ill-treated, in need or incorrigibly delinquent. Today in some developed countries, there
are specific laws dealing with almost all rights of children. In Zambia laws on children are not contained in
a single legislation. They are contained in various statutes some of which have been listed above and also
in UN Conventions which Zambia has ratified such as the United Nations Convention on the Rights of the
Child, ILO treaties and several others.

Enforcement of these international legal instruments, however, requires domestication to make them
enforceable by Zambia Courts.

THE UN CONVENTION ON THE RIGHTS OF THE CHILD OF 1989, (THE CRC)

By ratifying the Child Rights Convention, the Government committed itself to ensuring the protection of
children.
(i) Protection: that children have a right to protection from cruelty, abuse, neglect and
exploitation
(ii) Participation: that children have a right to play an active role in society and to have a say in
their own lives
(iii) Provision: that children have a right to have their basic needs met.

These are universal rights and are included in the anti-discriminatory provisions of the Constitution on the
grounds of age, gender ethnicity, religious affiliations or colour class or creed.

Article 14 (2) of the Convention provides that States Parties shall respect the rights and duties of a parent to
provide direction to the child in the exercise of his or her right in a manner consistent with the evolving
capacities of the child.
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Article 18 (1) states that both parents have common responsibilities for the up-bringing and development of
the child, the best interests of the child being their basic concern.

The definition of parents includes legal guardians.

Article 27 provides that States Parties recognize the right of every child to a standard of living adequate for
the child’s physical, mental, spiritual, moral and social development; and by Article 27 (2) Parents have the
primary responsibility to secure, within their abilities and financial capacities, the conditions of living
necessary for the child’s development.

To the question, “Do Parents have rights?” Lord Scarman in Gallick v West Norfolk and Wisbech Area
Health Authority and Aur 1986 AC 112, said

The principle of the law is that parental rights are derived from parental duty, and exist only so
long as they are needed for the protection of the person and the property of the child.

And Jonathan Montgomery in an (1988) 51 Modern Law Reports (MLR) 323 at p. 341 says that
“Parental rights protect the interest of children, not parents.”

The law places parental responsibility on a parent or parents with relation to the rights duties and power
necessary for the protection and promotion of the child’s rights.

Where the mother is single she has the right and responsibility for the child in so far as he may exercise
protective control over the child. The father has a duty to provide necessaries – food shelter, means for
education transport e.g. to access education, health facilities, or medical institutions and the like, and he
should not dictate. It is not a legal reason to refuse to pay the mother a sum of money for maintenance of
the child on the ground that the mother will spend it carelessly, or on herself.

Parental rights include:

1. the power to decide how and where a child shall live, provided a child is not removed from
jurisdiction without the appropriate consent, otherwise the crime of abduction is committed;

2. the power to exercise reasonable discipline over a child;

3. the power to determine the child’s religious upbringing and other education;
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4. the right to consent to marriage, to agree to adoption, and to the appointment of a guardian;

5. the right and duty to administer the child’s parental duties are:
1. to protect the child
2. to maintain the child
3. to educate the child
4. to provide all necessaries of life i.e. shelter, food, clothing and others that may not fall
under heads 1-3 above.

Termination of parental rights and duties under customary law, parental rights and duties do not cease,
although they may not be strictly observed especially once a girl child is married. Under civil law, parental
rights and duties come to an end
1. when a child reaches majority age i.e. 18 years, unless he or she is in institution of
learning.
2. upon a court order giving custody to someone else e.g. in the case of legal custody,
wardship, guardianship or adoption.
Any agreement not sanctioned by court to surrender parental responsibility is void.

Wardship of a child
The High Court has authority to order an infant/child to be ward of court to protect the infant’s interests.
Only minors can be warded, i.e. children below 18 years of age. Wardship involves giving care to any
person, or providing for contact with, or the education of, a child.

Summary of the provisions of the United Nations Convention On The Rights Of The Child1

Preamble

The preamble recalls the basic principles of the United Nations and the specific provisions of certain
relevant human rights treaties and proclamations.

It reaffirms the fact that children, because of their vulnerability, need special care and protection and it
places special emphasis on the primary caring and protective responsibility of the family. It also reaffirms
the need for legal and other protection of the child before and after birth, the importance of respect from the
cultural values of the child’s community and the vital role of information and cooperation in securing
children’s rights.

1
As made by a G M Kanja Institute of Human Rights, International Property and Development Trust
(HURID) 2004
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Article 1: Definition of a Child

A child is recognized as a person under the age of 18, unless national laws recognize an earlier age of
majority.

Article 2: Non-discrimination

All rights apply to all children without exception. It is the State’s obligation to protect children from any
form of discrimination and to take positive action to promote their rights.

Article 3: Best interests of the child

All actions concerning the child shall take full account of his or her best interests. The state shall provide
the child with adequate care when parents, or others charged with that responsibility, fail to do so.

Article 4: Implementation of rights

The State must do all it can to implement the rights contained in the Convention

Article 5: Parental Guidance and the Child’s Evolving Capacities

The State must respect the rights and responsibilities of parents and extend family to provide guidance for
the child which is appropriate to her or his evolving capacities.

Article 6: Survival and Development

Every child has the inherent right to life, and the State has an obligation to ensure the child’s survival and
development.

Article 7. Name and Nationality

The child has the right to a name at birth. The child also has the right to acquire a nationality and, as far as
possible, to know his or her parents and to be cared for by them.

Article 8: Preservation of Identity

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The State has an obligation to protect, if necessary, re-establish basic aspects of the child’s identity. This
includes name, nationality and family ties.

Article 9: Separation from parents

The child has the right to live with his or her parents unless this is deemed to be incompatible with the
child’s best interests. The child also has the right to maintain contact with both parents if separated from
one or both.

Article 11: Illicit Transfer and Non-return

The State has an obligation to prevent and remedy kidnapping or retention of children abroad by a parent or
third party.

Article 12: The Child’s Opinion

The child has the right to express her or his opinion freely and to have that opinion taken into account in
any matter or procedure affecting the child, due weight being given in accordance with the age and
maturity of the child.

Article 13: Freedom of Expression

The child has the right to express his or her views, obtain information and make ideas or information
known, regardless of frontiers.

Article 14: Freedom of Thought, Conscience and Religion

The State shall respect the child’s right to freedom of thought, conscience and religion, subject to
appropriate parental guidance.

Article 15: Freedom of Association

Children have the right to meet with others, and join or form associations.
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Article 16: Protection of Privacy

Children have the right to protection from government interference with privacy, family, home and
correspondence, and from libel or slander.

Article 17: Access to Appropriate Information

The State shall ensure the accessibility to children of information and material from a diversity of sources,
and it shall encourage the mass media to disseminate information which is of social and cultural benefit to
the child, and take steps to protect him or her from harmful materials.

Article 18: Parental Responsibilities

Parents have joint primary responsibility for raising the child, and the State shall support them in this. The
State shall provide appropriate assistance to parents for child raising.

Article 19: Protection from Abuse and Neglect

The State shall protect the child from all forms of maltreatment by parents or others responsible for the care
of the child and establish appropriate programmes for the prevention of abuse and the treatment of victims.

Article 20: Protection of a Child without Family

The State is obliged to provide special protection for child deprived of the family environment and ensure
that appropriate alternative family care or institutional placement is available in such cases. Efforts to meet
this obligation shall pay due to the child’s cultural background.

Article 21: Adoption

State Parties that permit adoption shall ensure that the best interests of the child shall be the paramount
consideration.

Article 22: Refuge Children

Special protection shall be granted to a refugee child or to a child seeking refugee status. It is the State’s
obligation to co-operate with competent organizations which provide such protection and assistance.
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Article 23: Disabled Children

A disabled child has the right to special care, education and training to help him or her enjoy a full and
decent life of dignity and achieve the greatest degree of self-reliance and social integration possible.

Article 24: Health and Health Services

The child has a right to the highest standard of health and medical care available. States shall place special
emphasis on the provision of primary and preventive care, public health education and the reduction of
infant mortality. They shall encourage international cooperation in this regard and strive to see that no
child is deprived of access to effective health services.

Article 25: Periodic Review of Placement

A child who is placed by the State for reasons of care, protection or treatment is entitled to have placement
evaluation regularly.

Article 26: Social Security

The child has the right to benefit from social security including social insurance.

Article 27: Standard of Living

Every child has a right to standard of living adequate for her or his physical mental, spiritual, moral and
social development. Parents have the primary responsibility to ensure that the child has an adequate
standard of living. The State’s duty is to ensure that this responsibility can be fulfilled, and is. State
responsibility include material assistance to the parents and their children.

Article 28: Education

The child has a right to education, and the State’s duty is to ensure that primary education is free and
compulsory, to encourage different forms of secondary education accessible to every child, to make high
education available to all on the basis of capacity. School discipline shall be consistent with child’s rights
and dignity. The State shall engage in international cooperation to implement this right.
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Article 29: Aims of Education

Education shall aim at developing the child’s personality, talents and mental and physical abilities to the
fullest extent. Education shall prepare the child for an active adult life in a free society and foster respect
for the child’s parents, his or her own cultural identity, language and values and for the cultural background
and values of others.

Article 30: Children of Minorities or Indigenous Populations

Children of minority populations and indigenous populations have the right to enjoy their own culture and
to practice their own religion and language.

Article 32: Child Labour

The child has the right to be protected from work that threatens her or his health, education or development.
The State shall set minimum ages for employment and regulate working conditions.

Article 33: Drug Abuse

Children have the right to protection from the use of narcotic and psychotropic drugs, and from being
involved in their production or distribution.

Article 34: Sexual Exploitation

The State shall protect children from sexual exploitation, prostitution and involvement in pornography.

Article 35: Sale, Trafficking and Abduction

It is the States obligation to make every effort to prevent the sale, trafficking and abduction of children.

Article 36: Other Forms of Exploitation

The child has the right to protection from all other forms of exploitation prejudicial to any aspects of the
child’s welfare not covered in articles 32, 33, 34 and 35.
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Article 37: Torture and Deprivation of Liberty

No child shall be subjected to torture, cruel treatment or punishment; unlawful arrest. Both capital
punishment and life imprisonment without the possibility of release are prohibited for an offence
committed by persons below 18 years of age. Any child deprived of liberty shall be separated from adults
unless it is considered in the child’s best interests not to do so. A child who is detained shall have legal and
other assistance as well as contact with the family.

Article 38: Armed Conflicts

State parties shall take all feasible measures to ensure that children under 15 yeas of age have no direct part
in hostilities. No child below the age of 15 shall be recruited into the armed forces. States shall also
ensure the protection and care of children who are affected by armed conflict as described in relevant
international law.

Article 39: Rehabilitative Care

The State has an obligation to ensure that child victims of armed conflicts, torture, neglect, maltreatment or
exploitation receive appropriate treatment for their recovery and social reintegration.

Article 40: Administration of Juvenile Justice

A child in conflict with the law has the right to treatment which promotes the child’s sense of dignity and
worth, takes into account the child’s age and aims at his or he reintegration into society. The child is
entitled to basic guarantees as well as legal or other assistance for her or his defence. Children in detention
shall always be separated from adults. State parties shall establish a minimum age below which children
shall be presumed not to have the capacity to infringe the penal law. Judicial proceedings and institutional
placements shall be avoided wherever possible.

Article 42-54: Implementation and Entry into Force

The provisions of articles 42 to 54 notably foresee:

(i) the State’s obligation to make the rights contained in this Convention widely known to both
adults and children
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(ii) the setting up of a committee on the Rights of the child composed of ten experts which will
consider reports that states parties to the convention are to submit two years after ratification
and every five years thereafter. The Convention enters into force – and the Committee would
therefore be set up once 20 countries have ratified it

(iii) State parties are to make their reports widely available to the general public

(iv) the committee may propose that special studies be undertaken on specific issues relating to
the rights of the child and may make its evaluations known to each state party concerning as
well as to the UN General assembly

(v) in order to “foster the effective implementation of the Convention and to encourage
international cooperation,” the specialized agencies of the UN (such as the ILO, WHO and
UNESCO) and UNICEF would be able to attend meetings of the committee. Together with
any other body recognized as “competent” including NGOs in consultative status with the UN
and UN organs such as the UNHCR, they can submit pertinent information to the committee
and be asked to advise on the optimal implementation of the Convention.

BEST INTEREST OF THE CHILD

The principle that the best interest of the child should be a key consideration in taking actions that affect
that child did not originate with the United Nations Convention on the Rights of the Child (UNCRC). It is
clearly set out in Principle 2 of the United Nations Declaration of the Rights of the Child, which says:

“the child shall enjoy special protection and shall be given opportunities and facilities, by law and
by other means, to enable him to develop physically, mentally, spiritually and socially in a healthy
and normal manner and in conditions of freedom and dignity. In the enactment of laws for this
purpose, the best interests of the child shall be the paramount consideration.”

In the field of family law and social work, the idea that decisions and actions must reflect the best interest
of the child is a well-established in practice, when issues under consideration involve such things as child
custody in situations of parental divorce or separation, or when children are removed from a home
environment which is judged to be damaging to the child.

But the United Nations Convention on the Rights of the Child (UNCRC) takes the best interest principle
further than either the Declaration or standard child welfare practice.
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The critical statement of the principle is found in Article 3, which says:

“In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interest of the
child shall be a primary consideration.”

This seemingly simple sentence contains within it a number of major implications for both government
decision-makers and non-governmental agencies and organizations that provide services for and on behalf
of children.

The first important point to note is that the best interest principle is invoked not just in relation to family
and custodial care of the child (as in social work practice) or in relation to legislation (as in the 1959
Declaration) but in all actions concerning children.

For governments, this means that the Convention could be interpreted as requiring that the best interest of
children be taken into account in such actions as setting national budget under structural adjustment
programmes, these affect children in the areas of education, health care and social security.

The structural adjustment programmes are also leading to an increasing privatization of social services for
children, with governments doing less and private agencies being asked to do more. Under the terms of
Article 3, the best interest principle also must be applied by these private agencies in every action they take
concerning children.

Although the best interest of the child is not the only consideration, or the most important consideration in
these decisions, it is still a “primary consideration” and, as such, must be taken into account and the effect
of the decision on the child’s interest will have to be kept in mind whenever that decision is finally made.
Children and child welfare advocates have, therefore, been given a very powerful tool, which they can use
to intervene in every decision that has some effect on the well being of children.

There is a specific responsibility laid on the State, represented by the government, to establish and enforce
basic standards that will assure that the best interest of the child is adequately met.

State Obligations and Parental Responsibility

One of the most critical questions that must be asked when the question of the best interest of the child is
raised is: “Who determines what is in the child’s best interest?’
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The first answer given by the Convention is that parents, and members of the extended family where
applicable, have the primary responsibility to assure that the best interest of their children are met. This is
made clear by Article 5 which although it does not explicitly refer to the best interest principle, certainly
seems to have that concept in mind when it talks about parents providing “appropriate direction and
guidance in the exercise by the child of the rights recognized in the present Convention”.

The primary role of parents in assuring that the best interests of their children are met is reinforced by four
specific Articles:

Article 9confirms that a child has the right to live with his or her parents unless this is deemed (by
competent authorities) to be incompatible with the child’s best interests.

In Article 18, there is affirmation that parents have joint primary responsibility for raising their
children, with the best interest of the child as their primary concern. The state is obliged to
support the parents, mainly by assuring that the necessary support institutions and services are in
place.

Article 20 expands on the mention in Article 9 of the need that sometimes arises to remove a child
from his or her family environment in that child’s best interest, and requires that States ensure the
availability of alternative care which will meet the best interest of the child.

Finally, Article 21, which deals with adoption, stresses that any system of adoption must ensure
that the best interests of the child are the paramount consideration. This is a much stronger
formulation than the provision in Article 3, which merely says that the best interests of the child
shall be “a primary consideration.” Article 21 can be interpreted as saying that the best interest of
the child is really the only consideration to take into account when making a decision on adoption.

Decisions about what is in the child’s best interest are never easy to make. Children are not always reliable
judges. They might think that their best interest would be served by never going to school and always
eating sweets, because that is what they want to do. Parents sometimes confuse their ambitions for their
children – that the children should grow up to be lawyers or sports celebrities – with the best interest of the
child.

The extended family has a role to play in determining the best interest of the child, but this may become
confused with the needs of other family members, as when a child is sent to stay with a relative, or is
valued for the labour he or she contributes to the family farm.
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There is also a role for the community in this process, because children are part of the broader society and
have a place in the community. It is important to avoid common stereotypes about children and their
relationship to the community in which they live. In some parts of the world, communities have become
almost afraid of their children as lack of opportunity and hopelessness lead children to behave in ways that
may be seen as anti-social.

States, represented by government, may be more interested in the potential of children to become adult
taxpayers than in the real day-to-day needs of children right now.

The key to meeting the best interests of children in reality, not just in theory, seems to lie in establishing a
flexible balance among all those who have both the responsibility and the capacity to assure the child’s best
interest, and the children themselves.

Statutory and Customary Law

The challenge of interpreting the ‘best interest’ principle is complicated by the importance of culture and
potential it parents for conflicts between even the various principles set in the Convention on the Rights of
the Child.

Culture, which is inevitably linked to customary law, and ‘tradition’, can serve as a positive factor. It
provides an ethical and sometimes a political base for the protection of the rights of minority and
indigenous groups, including children, to profess and practice their own religion and to use their own
language. It is in this sense that the protections of culture set out in Article 30 is intended to be respected.

Traditional extended family systems also provide essential social ‘safety nets’ in some cultures far more
effectively than government programmes.

Unfortunately, however, culture (usually combined with selective and self-serving interpretations of
‘traditions’) has also been used to defend such practices as the forced marriages of young girls and bonded
child labour in parts of South Asia, female genital mutilation and other cruel and dangerous rituals in
Africa and elsewhere, ‘ethnic cleansing’ in various regions of Europe, capital punishment for children
under 18 in several jurisdictions in the United States and the beating of children as young as 5 as
‘reasonable chastisement’ by parents in the United Kingdom.

There are two legal systems in Zambia: the statutory law, which follows the tradition of British “common”
law, and the customary law, which is applied by the various traditional groups on the basis of their log-
standing practice. Customary law varies from group to group and its application, in relation to the best
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interest of the child, can be radically different, depending on whether the tradition is matrilineal or
patrilineal. As a matter of fundamental principle, statutory law takes priority over customary law, and
customary law is not to be applied if it is deemed to run counter to generally accepted moral standards.

The apparent conflict between statutory and customary law is a reflection of conflicts which may seem to
arise between various rights set out in the Convention. For example, the right to a child to be cared for by
his or her parents may not be compatible with the right to access to education, if there is no school in the
village where the child’s parents live. In this instance, the application of the best interest principle might
result in a decision that the rights of that child can best be served by having the child live apart from the
parents, possibly with members of the extended family in another village or town, where there is a school.

As the same time as culture and traditional practices, embodied in customary law, cannot be excluded from
the assessment of the best interests of the child, it must be recognized that culture cannot be a determining
factor of what is in the child’s best interest. Food-binding in pre World War II China, child slavery or
bonded labour, and female infanticide in various societies are examples of practices that have long
histories of being condoned and promoted by culture and tradition.

On balance, it seems essential that cultural considerations will have to be set aside whenever they are in
clear conflict with universally accepted standards of human rights.

This is not to say that there are easy solutions to the lack of compatibility of statutory and customary law on
important issues relating to the best interest of the child.

The continued maintenance of traditional practices may not be in the child’s best interest relates to the
whole range of attitudes and behaviours on the pat in individuals and groups which cannot be altered
merely by introducing an international convention or putting appropriate legislation in place.

No universal principle, however widely supported (as the Convention on the Rights of the Child is
supported) can ever cancel out the inevitable influence of cultural values and perceptions. The Convention
on the rights of the Child is a part of continuing process of balancing localized cultural norms and
traditional standard against the evolving international consensus on human rights. In this sense, the
principle of best interest of the child can serve as a valuable means of evaluating the contemporary
appropriateness of both the statutory law and the customary law insofar as those apply to children.
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LEGITIMACY

The terms “bastard” and “illegitimate” signify the same thing. They refer to a person born out of wedlock.
Bastard – a person born in the bush or on the road. Derived from a French word for “road side” So a
bastard is a roadside child. “illegitimate means” not according to the law”

These are however, old legal terms no longer in use. The modern trend is not to put labels on children. It
stigmatizes them. The legal term also used in other jurisdictions is ex- nuptial derived from a Latin usage
for “ outside marriage “

Even though the modern trend and change has been intended to remove the stigma, the attitude still lingers
over a child born out of wedlock. In cases of inheritance all children are accorded equality. But all others
areas may leave an illegitimate child in a less favourable situation.

Legitimacy refers to the status of a child at birth, if born in wedlock, the child is legitimate. If not, she /he
is illegitimate. A child born illegitimate may be legitimized by the subsequent of marriage of his or her
mother to his or her father.

Sometimes it becomes important to establish the child’s father e.g. for the purposes of maintenance, or
inheritance or other parental responsibility, or just to establish contact with the child or parent. A court
may make an affiliation order declaring a person to be the father of a child and ordering him to maintain the
child.1

Although at law it is a presumption that a woman’s husband is the father of her child, and an entry of a
particular man’s name as the father in the register of births is prima facie evidence that he is the father,
DNA may establish paternity with certainty

Legitimacy of children of certain void marriages

This is a subject we have touched during the discussion of void and voidable marriages.

What happens (status wise) to the children of marriages which are declared void after child/men are born

Section 4 (1) provides that if one or both believed their marriage to be valid, then their children were
legitimate. This provision means that even if the marriage is void ab initio it has never been legal, their
children may be deemed to be legitimate.
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Any child of a voidable marriage who would have been a legitimate child had the marriage been dissolved
rather than annulled, shall be deemed to be legitimate inspite of the annulment.

Legitimated persons have a right in the estate of a person dying after the date of legitimation, and in similar
manners of success (S.7(1))

In consideration the interest of the child where it is necessary to depend on relative seniority of the
children, any person legitimated by the act shall rank as if born on the date of legitimation and as between
themselves, they shall in order of seniority

An illegitimate person has the same maintenance rights as a person.