ARTICLES

Towards defining the 'right to a family' for the African child

Ekanem Okon

Research Associate: Child Rights and Education, South African Human Rights Commission, Johannesburg, South Africa

SUMMARY

Most international instruments and national legislation dealing with children recognise the need for children to grow up in a family environment - in an atmosphere of love and understanding. In different regions around the world there are various family structures and patterns - traditional families with the heterosexual marriage form as the cornerstone; extended families with up to four generations in one household; and a mixture of family forms (cohabitation, homosexual ('lesbigay') unions, non-residential father households, single parented households, child-headed households, to mention a few). This article argues that every child has a right to a family which includes other familial rights, such as the right to family life and the right to a family environment. It begins with a brief overview of existing family forms, followed by an examination of the functions of the family. From that premise, it explains the need for understanding family from a functional rather than a structural viewpoint. It argues that, for the effective realisation of all familial rights enjoyable by the child, the concept 'family' must be defined. The definition must be based on its function, and tailor-made by each state to suit its societal circumstances. The article concludes that such a definition would provide clarity to the concept and aid in avoiding the legal limbo which sometimes affects children's familial status. Legal references in the article are mainly to international documents, regional documents and legislation from selected African countries.

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* BA (Hons) (Ambrose Alli), LLB (Free State), LLM (Pretoria); mmaeyen@gmail.com
1 Including arts 12 & 16(1) of the Universal Declaration of Human Rights; Preamble & art 23 of the International Covenant on Civil and Political Rights; arts 1, 2 & 17 of the Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally, 1986; arts 9, 10, 20, 21 & 22 of the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, all through the document; art 10 of the International Covenant on Economic, Social and Cultural Rights; art 18 of the African Charter on Human and Peoples' Rights; art 16 of the European Social Charter; and Preamble of the African Charter on the Rights and Welfare of the Child.
2 Resolution of the UN General Assembly on the report of the ad hoc Committee of the Whole A/S-27/19/Rev 1 and Corr 1 and 2, 10 May 2002 - A world fit for children.
3 Preamble CRC.
4 Art 18 African Children's Charter; art 18 African Charter.
5 Preamble para 1, Hague Convention.
6 CRC, IRC, UNHCR, UNICEF Save the Children UK, WVI Inter-agency guiding principles on unaccompanied and separated children (2004) 16.
7 Preamble, Children's Act 38 of 2005, as amended.
8 Sec 6 Children Act 8 of 2001.
9 Sec 8 Child's Rights Act of 2003.
10 These three countries have been selected because, in Africa, they have relatively new children's legislation which was enacted in the 21st century.
11 Art 8(1) European Convention on Human Rights; art 8 Human Rights Act (Act of Parliament of the United Kingdom); sec 8 Child's Rights Act of 2003.
12 Art 9 Charter of Fundamental Rights of the European Union.
13 Art 28 Constitution of the Republic of South Africa, 1996.
14 Art 9 CRC; arts 19 & 25 African Children's Charter.
15 For a detailed discussion on this, see J Sloth-Nielsen et al 'Inter-country adoption from a Southern and Eastern African perspective' (2010) International Family Law 86-96.         [ Links ] A brief discussion of their views is presented in para 6 below.
16 A van der Linde Grondwetlike erkenning van regte ten aansien van die gesin en gesinslewe met verwysing na aspekte van artikel 8 van die Europese Verdrag vir die Beskerming van die Regte en Vryhede van die Mens unpublished LLD thesis, University of Pretoria, 2001 23, quoting D Hodgson 'The international legal recognition and protection of the family' (1994) 8 Australian Journal of Family Law 219.
17 This paper acknowledges the inevitability of changes in the family as people evolve and, ultimately, advocates for the development and establishment of criteria based on which the existence of a family can be identified and upon which the right to a family of children can be promoted.
18 The UN in its 78th plenary meeting on 8 December 1989 proclaimed 1994 to be the International Year of the Family.
19 DH Demo et al (eds) Handbook of family diversity (2000) 1. It is believed that the absence of a clear definition of the concept might even come into conflict with adoptive relationships. See also International Social Services (ISS)/International Reference Centre for the Rights of Children Deprived of their Family (IRC) 'How to strike a balance between the right to respect the private and family life and the protection of the child's best interest in adoption' (2009) Monthly Review 1.
20 JL Roopnarine & UP Gielen (eds) Families in a global perspective (2005) 7. GP Murdock Social structure (1949) 1 defines the family as '[a] social group characterised by common residence, economic co-operation and reproduction. It includes both sexes, at least two of whom maintain a socially-approved sexual relationship, and one or more children, own or adopted, of sexually-cohabiting adults'. This definition contains some elements which do not exist in some societies. Other definitions are 'two or more people who are in a relationship created by birth, marriage or choice' (LB Silverstein & CF Auerbach '(Post-) modern families' in Roopnarine & Gielen (above) 33) including adoption (Demo et al (n 19 above) 1). One common element in all societies is that the key function of family is nurturing and socialisation (IL Reiss The family system in America (1971) 26). A more contemporary and less restrictive definition is '[a] family is one or more adults related by blood, marriage or affiliation who co-operate economically, who may share a common dwelling place, and who may rear children' (B Strong et al The marriage and family experience: Intimate relationships in a changing society (1998) 14. Also see NV Benokraitis Marriage and families - Changes, choices and constraints (2005) 3). RF Winch defines family as a group of related persons in different positions within the family who fulfil functions necessary for the existence and survival of the family (reproduction, emotional care and child socialisation) (RF Winch 'Toward a model of familial organisation' in WR Burr et al (eds) Contemporary theories about the family (1979) 162-179). Popenoe argues that family is not necessarily based on heterosexual adult relationships, but that a single adult-household, with a dependent child or adult is also a family (D Popenoe 'American family decline 1960-1990: A review and appraisal' (1993) 55 journal of Marriage and Family 529-535). According to Benokraitis, the distinguishing feature of family is that its members identify themselves with the group and are attached to the group (which also has its own identity) (Benokraitis (above) 3. Some other authors describe family as the 'haven of primary fulfilment and meaningful experience' (B Zinn & S Eitzen Diversity in families (1990) 14). In Gittins's view, family is a stereotype produced and maintained as a tool for social control (D Gittins The family in question: Changing household and familiar ideologies (1995) 15). Gubrium & Holstein suggest that individual experience rather than structure or form define a family (JF Gubrium & JA Holstein What is family? (1990) 1-10).
21 Silverstein & Auerbach (n 20 above) 34.
22 CJ Ogletree 'Parentage issues challenging California's judicial system: What is a family?' (2005) 6 journal of the Center for Families, Children and the Courts 99-120.
23 J Muncie et al (eds) Understanding the family (1997) 1.
24 J Freeman 'Defining family in Mossop v DSS: The challenge of anti-essentialism and interactive discrimination for human rights litigation' (1994) 41 University of Toronto Law journal 57.
25 See n 19 & n 20 above where various definitions are provided.
26 Zinn & Eitzen (n 20 above) 14.
27 Cheal advises that to obtain an answer to the question, an exploration of the roots of family variations in different ethnic, racial and cultural identities is necessary. See D Cheal Family and the state of theory (1991).
28 J Muncie & R Sapsford 'Issues in the study of the family' in Muncie et al (n 23 above) 8.
29 Ogletree (n 22 above) 120. It is also important to note that there are different theories in family studies which inform the definition of family. These theories include the family systems theory; the human ecology theory; the family development theory; the individualism and interaction theories - symbolic interactionism theory, exchange and resource theory; the difference and diversity theories -phenomenology theory and feminist theory; the situational approach; and the institutional approach. Due to word restrictions, a detailed discussion of these theories cannot be accommodated in this article. For a crisp discussion, see E Okon Protection of the right to a family in the context of separated and unaccompanied children in natural disasters unpublished LLM dissertation, University of Pretoria, 2011. For a detailed study, see S Smith 'Family theory and multi-cultural family studies' in BB Ingoldsby & S Smith (eds) Families in multicultural perspective (1995) 8-35; CB Broderick Understanding family process (1993); N Kingsbury & J Scanzoni 'Structural functionalism' in PG Boss et al (eds) Sourcebook of family theories and methods (1993) 195-210; BB Ingoldsby & S Smith (eds) Families in multi-cultural perspective (1995) 15; FI Nye The family: Its structure and interaction (1973) 21 -23; R LaRossa & DC Reitzes 'Symbolic interactionism and family studies' in Boss et al (above) 135-162; and JF Gubrium & JA Holstein 'Phenomenology, ethnomethodology and family discourse' in Boss et al (above) 654.
30 MC Elmer The sociology of the family (1945) 17.
31 BB Ingoldsby 'The family in Western history' in Ingoldsby & Smith (n 29 above) 39.
32 Ingoldsby (n 31 above) 41. Females were not allowed to inherit. Where a man had no sons and did not adopt, his daughter might have been forced to marry a close relative.
33 Ingoldsby (n 31 above) 42.
34 The new encyclopaedia Britannica (1978) Vol 7 157.
35 Ingoldsby (n 31 above) 42.
36 Ingoldsby (n 31 above) 48.
37 E Pretorius 'Family life in South Africa' in Roopnarine & Gielen (n 20 above) 368.
38 http://www.warthog.co.za/dedt/tourism/culture/family/polygamy.html (accessed 20 April 2011).
39 http://www.zulu-culture.co.za/zulu_family.php (accessed 20 April 2011). The wives are subservient to their husbands.
40 http://en.wikipedia.org/wiki/Kikuyu_people (accessed 20 April 2011). The Kikuyu are Kenya's most populous ethnic group.
41 As above.
42 http://en.wikipedia.org/wiki/Yoruba_people (accessed 20 April 2011). Yorubas are one of the largest ethnic groups in Nigeria. They make up about 21% of the Nigerian population.
43 M Ogundipe-Leslie Re-creating ourselves: African women and critical transformations (1994).
44 Pretorius (n 37 above) 368.
45 Silverstein & Auerbach (n 20 above) 34.
46 Silverstein & Auerbach (n 20 above) 39.
47 P Laungani 'Changing patterns of family life in India' in Roopnarine & Gielen (n 20 above) 87-88. However, there are also nuclear families in Indian communities.
48 Silverstein & Auerbach (n 20 above) 34.
49 As above.
50 Muncie & Sapsford (n 28 above) 11.
51 The new encyclopaedia Britannica (1978) Vol 10 478.
52 This 'universal' type of domestic family is found in all societies. (Murdock calls it 'a universal human social grouping'. See Murdock (n 20 above) 2.) It consists only of a heterosexually married couple (from different families) to the exclusion of any other person and their unwed children (biological or adoptive). As indicated by Muncie & Sapsford (n 28 above) 10, all other forms of family tend to be defined with reference to the nuclear family. Some other family scholars describe it as the nucleus of the corporate and the extended families - the first stage of both. Others are of the view that the nuclear family evolved from the extended family structure as a result of industrialisation and urbanisation. However, some anthropologists argue that 'the nuclear family is a 'social arrangement' rather than a universal form or 'biologically-determined family form'. See also Department of Social Development 2011 Green paper on families 'Promoting family life and strengthening families in South Africa' 24-40.
53 Also known as the non-nuclear family, the extended family may be made up of polygamous families, monogamous nuclear families or a combination of both. The typical structure of an extended family includes parents, unwed and married children with their spouses and offspring, and even grandparents. There may also be great-grandparents living in the same house with their children, and grandchildren and great-grandchildren. In industrial societies, the extended family takes the form of a domestic family plus close relatives living elsewhere, while in non-industrial settings, the extended family is a single household unit. As J Broodryk Ubuntu: Life lessons from Africa (2002) 29-31 points out, the extended family structure in African societies is such that a child has many fathers and mothers in his uncles and aunties. So, where the child's biological parents are not available to care for the child, his or her other parent(s) will assume such responsibility. An advantage of the extended family form is that children learn from a very early age to be tended by a variety of persons; they are not overly attached to any particular person (Laungani (n 47 above) 87). Also, this family form is more effective for maintenance and transfer of family traditions from one generation to another (Nye (n 29 above) 41).
54 Although often confused with the extended family structure, the joint family is a variant of the extended family (Nye (n 29 above) 42). This family form is common among the Hindu in India. It is a structure where all members of a family live together, including brothers and their wives and children, and have a communal kitchen, income, property and other resources with the patriarch as the head of the family and commander of the unit. Some, but not all, extended families are joint families.
55 This family form was found among the people of caste (coloureds) in the USA and exists today common in South African societies. In some societies, where women are so economically empowered that they have difficulty in finding men that can contribute to their economic security, marriage is rare. Such women sometimes choose single-parenthood through adoption, artificial insemination or surrogate motherhood. As a result, most single-parent families are those where the mother is responsible for provision and care for the house. Death of a spouse, through various causes, has also led to the increased number of single-parented families that exist today. For more on this see, Pretorius (n 37 above) 370 and Silverstein & Auerbach (n 20 above) 36. There are also absent parent(s) families (or non-resident father or mother households) where one or both parents are absent from the household for various reasons.
56 Adoption is a legislation-regulated practice which establishes a child's legal membership in an adoptive family. It may be carried out domestically or internationally. In most countries, adoption terminates all parental rights that existed between previous parents, biological or otherwise, or caregivers of the child; the new parents then become adoptive parents for all purposes (see the Children's Act 38 of 2005 sec 242 for effects of adoption). Foster care is a form of care for parentless children, children without families or those whose families cannot be identified. It is generally a form of interim care where a child is placed in state-managed and supervised care of a family to which the child may not be related (this applies in the United States, some European countries and South Africa). In Western Europe and Scandinavia, foster care is long-term care, like adoption. For more on this, see J Williamson & A Greenberg Families, not orphanages (2010) Better Care Network Working Paper September 2010 17, http://crin.org/BCN/results.asp?keywords=family&offset=20 (accessed 21 October 2010). Since placement is intended to last until the child is reunited with his or her parents, attains adulthood or is permanently adopted, the state retains guardianship of the child for the period of foster care. Foster parents are compensated by the state for care of the child through foster child grants.
57 In some African countries - Ethiopia, South Africa and Zimbabwe - child-headed families (households) are a relatively new phenomenon which resulted from the high mortality rate of parents and caregivers as a result of the HIV/AIDS pandemic. For more on this, see S Tsegaye 'The lives of children heading household' http://www.crin.org/docs/The20Lives20of20Children20Heading20Families[1].pdf (accessed 20 April 2011); http://www.mida-international.org/index.php?option=com_content&view=article&id=53&Itemid=62 (accessed 20 April 2011). See also Save the Children Field guide to separated children programmes in emergencies (2004) 15 http://www.ecdgroup.com/docs/lib_005230015.pdf (accessed 19 April 2010). Best described in legal terms, a child-headed household is a household where, because 'the parent, guardian or caregiver is terminally ill or has died or has abandoned the children in the household', and there is no adult caring for the children, a child above the age of 16 years assumes the role of caregiver for the other (younger) children in the house (Children's Act sec 137(1)(a)). Where there is no extended family member or community-based care to turn to, the older children in these households fend for the younger children, sometimes at the cost of their own education.
58 The union of gay couples has been legalised in the Netherlands, France, South Africa (following the landmark decision of the Constitutional Court in Minister of Home Affairs v Fourie & Bonthuys & Another 2006 3 BCLR 355 (CC); 2006 1 SA 524 (CC), Denmark, the United Kingdom, Canada and some states within the USA. Child custody rights are also now accorded to these couples. As a result, same-sex families are becoming an accepted family form. These families also come in different forms. One combination that has been found is that of a family with a gay dad and lesbian mothers living in a duplex - the gay dad living downstairs and the lesbian mothers living upstairs. Children in this structure may be biological, adopted or surrogated.
59 The corporate family structure bases its existence on activities such as farming, hunting, trading in products, and rearing its children within its territory. This familial form is common to pre-industrial or pre-literate societies.
60 With the experimental family form, a large number of people with different backgrounds, education, and from different countries are brought together for work in groups. The tasks include clearing, irrigation and planting on land, washing and mending clothes, making meals and caring for children. The fabric of this household form is the formation of small groups and the mutual interaction between the people in these groups, thus creating a family group. An example of this household form is the kibbutz in Israel which is a collective agricultural community. This community has a unique method of child-rearing where all children in the community sleep in communal children's homes.
61 Remarried parents with their children from previous marriages are a common description of this family form. Also, where a previously nuclear family household becomes legally separated, the family structure is reorganised to, possibly, a single-parented family.
62 Some parts of the West allowed polyandry. Eg, the Dieri of Australia and the Chukchee of Siberia have been associated with this family form. However, there are views that these group marriages seldom exist. What is often found is an extension of sexual privileges, but not the economic benefits and responsibilities, to a group of men and women. See Murdock (n 20 above) 23-40.
63 The new encyclopaedia Britannica (1978) Vol 7 155. For more on polygamous marriages, see Murdock (n 20 above) 2 23-40 and Ingoldsby (n 31 above) 117-137.
64 RA Ahmed 'Egyptian families' in Roopnarine & Gielen (n 20 above) 161.
65 Ingoldsby (n 31 above) 124-126 quoting GP Murdock 'World ethnographic sample' (1957) 59 American Anthropologist 664-687.
66 Ingoldsby (n 31 above) 128-131.
67 Elmer (n 30 above) 9.
68 Muncie & Sapsford (n 28 above) 24.
69 Nye (n 29 above) 8. See also Kingsbury & Scanzoni (n 29 above) 195-210; Murdock (n 20 above) 10; and Elmer (n 30 above) 3.
70 E Zaretsky Capitalism, the family and personal life (1976).
71 Arts 18 & 27 CRC.
72 X Chen & Y He 'The family in mainland China: Structure, organisation and significance for child development' in Roopnarine & Gielen (n 20 above) 57-58.
73 The new encyclopaedia Britannica (1978) Vol 7 156.
74 As above.
75 Preamble para 5 CRC.
76 Art 27 CRC.
77 DT Heath 'Parents' socialisation of children' in Ingoldsby & Smith (n 29 above) 161.
78 Elmer (n 30 above) 7 11.
79 The structural and functional theory to family studies has been employed by many social scientists in the field of family studies. This approach is used to organise and explain research study results.
80 F Viljoen 'Family structure and support networks' in AF Steyn et al (eds) Marriage and family life in South Africa: Research priorities (1987) 6.
81 Van der Linde (n 16 above) 24.
82 As above.
83 In re: Certification of the Constitution of the Republic of South Africa, 1996 10 BCLR 1253 (CC).
84 It is noteworthy that one of the factors in sec 7 of the South African Children's Act which must be considered when the best interest of the child standard is tested is 'the likely effect on the child of any separation from ... any brother or sister or other child ... with whom the child has been living' (sec 7(d)(ii)). This provision points to the need to maintain emotional and psychological attachments that may have developed in the child.
85 In Western Europe and Scandinavia, foster care is intended to be permanent.
86 CRC Committee (1994) Day of General Discussion 'Role of the Family in the Promotion of the Rights of the Child' para 2.1; CRC Committee (2005) Day of General Discussion 'Children without parental care' CRC/C/153 para 644.
87 UN Resolution adopted by the General Assembly (2002) (on the report of the Ad Hoc Committee of the Whole (A/S-27/19/Rev 1 and Corr 1 and 2)).
88 Art 15 UN Resolution (n 87 above).
89 Art 4 UN Convention on Migrant Workers (my emphasis).
90 Art 18(1) African Charter.
91 As above.
92 Art 18(2) African Charter.
93 Art 18 African Children's Charter.
94 Art 10 African Children's Charter, in relation to the right of the child not to be subjected to interference of 'privacy, family, home or correspondence'.
95 Preamble para 4 African Children's Charter, '[r]ecognising that the child occupies a unique and privileged position in the African society and that for the full harmonious development of his [or her] personality, the child should grow up in a family environment in an atmosphere of happiness, love and understanding'; and art 23(3), with regard to the refugee child, '[t]he child shall be accorded the same protection as any other child permanently or temporarily deprived from his [or her] family environment for any reason'.
96 Art 14(2)(f) African Children's Charter, in relation to 'family life education'.
97 Preamble African Children's Charter.
98 The national laws considered are the laws of South Africa, Nigeria and Kenya, within the African region. It is pertinent to note that these three jurisdictions have children's legislation which was recently enacted and give effect to key provisions in CRC and the African Charter. It is for this reason that these countries are the focus here.
99 Sec 8. Sec 37 of the Constitution of the Federal Republic of Nigeria, 1999, is entitled 'Right to private and family life' but the provisions of sec 37 state: 'The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.' This formulation does not provide clarity to the meaning 'family life'. The CRA, however, gives more clarity as it does not equate family life to the home as the Constitution appears to have done.
100 Sec 277 CRA.
101 Sec 45. The Constitution of Kenya, 2010, acknowledges family as the natural and fundamental unit of society and mandates the Kenyan Parliament to enact legislation which recognises 'any system of personal and family law under any tradition, or adhered to by persons professing a particular religion'. This legislative piece takes into account the importance of the family and the variety of family forms that must be considered when dealing with family rights.
102 However, the Act defines 'home' 'in relation to the child' as 'the place where the child's parent, guardian, relative or foster parent permanently resides, or if no parent, guardian or relative living and the child has no foster parent, the child's parent's or guardian's or relative's last permanent residence This definition highlights persons who have responsibility over the child - biological or by operation of law.
103 My emphasis.
104 The meaning of 'significant' is subject to interpretation.
105 In its December 2002 Review of the Child Care Act Report, Project 110, the South African Law Reform Commission, acknowledging that the traditional nuclear family form is not the reality in South Africa, and noting the challenges that ensue, recommended a flexible relationship-based definition of family member to be included in the children's legislation thereby preventing children from becoming family-less.
106 It is important to stress that the best interests of the child remain the primary consideration when dealing with children's rights. Therefore, although a child has the right to a family, it will not be in the child's best interests to remain with a family where, eg, the child endures abuse and violence.
107 Sec 2 Children's Act.
108 Sec 8 CRA.
109 Sec 53(e) Constitution of Kenya; sec 2 Children's Act.
110 Art 9 CRC.
111 Para 6, arts 20(1) & 22(2) CRC; sec 2 Children's Act.
112 CRC, IRC, Save the Children, TdH, UNICEF, WVI, War Child UK and Plan International acknowledge this right in their document - Child Protection Working Group Guiding principles on accompanied and separated children following the Haiti earthquake January 2010 1.
113 K Jastram & K Newland 'Family unity and refugee protection' in E Feller et al Refugee protection in international law: UNHCR's global consultation on international protection (2003) 566.
114 CRC Committee (2005) Day of General Discussion 'Children without parental care' CRC/C/153 para 645.
115 Department of Social Development 2011 'Green Paper on Families 'Promoting family life and strengthening families in South Africa' 16.
116 J Sloth-Nielsen et al 'Inter-country adoption from a Southern and Eastern African perspective' (2010) March International Family Law 86-96.
117 CRC Committee (1994) General Day of Discussion 'Role of the Family in the Promotion of the Rights of the Child' para 198.
118 Sec 28(1)(b) 1996 Constitution.
119 1996 10 BCLR 1253 (CC).
120 Certification (n 119 above) para 98.
121 Para 99 Certification.
122 As above.
123 Para 102 Certification. It should be noted that this part of the judgment responds to the objection that the right to family life (and not the 'right to a family') is not expressly recognised in the Constitution. The 'right to family life' and the 'right to a family' are two distinct familial rights. This judgment has been cited as an example because it addresses the issues of familial rights generally.
124 Republic v Minster of Home Affairs & 2 Others Ex-parte Leonard Sitamze (2008) eKLR. judgment delivered by Judge JG Nyamu.
125 Sitamze (n 124 above) 20.
126 CRA s 8.
127 Green Paper (n 115 above).
128 Green Paper (n 115 above) 14.
129 As above.
130 Van der Linde (n 16 above) 27.