By Jeevan Thiagarajah
The 1992 Convention on the Rights of the Child, a binding convention signed by every member nation of the United Nations and formally ratified by all but Somalia and the United States, declares that the upbringing and development of children and a standard of living adequate for the children’s development is a common responsibility of both parents and a fundamental human right for children, and asserts that the primary responsibility to provide such for the children rests with their parents.
In many instances of child support, the non custodial parent provides the custodial parent payments for support of children. There is no gender requirement that either a father or mother must pay.
All international and national child support regulations recognize that every parent has an obligation to support his or her child. Therefore, both parents are required to share the responsibility for their child (ren)’s expenses. Support money collected is expected to be used for the child’s expenses, including food, shelter, clothing and educational needs. They are not meant to function as “spending money” for the child.
Child support orders may earmark funds for specific items for the child, such as school fees, day care or medical expenses. In some cases, the non custodial parent may pay for these items directly rather than remitting money through the custodial parent.
Shared parenting encourages children to know both parents are actively involved and share responsibility in their upbringing. Its also referred to as “collaborative parenting”, “balanced parenting” or “equal shared parenting”, and can also apply after the separation of adoptive or other non-biological parents. “Equally shared parenting” refers more commonly to child raising, breadwinning, housework and recreation time that are equally shared between two parents in an intact family.
Failure of protection
While these are international norms, Sri Lanka though a signatory to the CRC with scores of laws for child protection (above) allows or actively assists in variations.
These include entertaining claims of clients colluding with lawyers who claim child support while being in the custody of a parent and actively defrauding children of their parents funds. In other instances, gender biases are shown with one parent having to bear the responsibility of support and parenting or applications for maintenance are dragged on with long dates taken, with interim benefits enjoyed by petitioners who seem in no hurry to have finality to their applications. Collaborative parenting is not always the norm particularly when children face custodial issues.
The most pernicious practice is the denial of the right of children to claim the responsibilities of both parents for their development and care. Conversely, the right of parenting of a parent is denied when children are taken away from one or in extreme instances from both parents due to social and economic reasons.
This could be argued as the State violating the CRC and abusing rights of children. Children sent to ‘homes’ are in most instances due to problems associated with finances and breakdown in families from low income categories who face the absence of parental contact and communication.
It is precisely in such instances every effort must be made to restore or maintain contact with parent(s) as an obligation. Efforts must be towards assisting families deal and adopt approaches to prevent institutionalizing children.
Children are voiceless and not able to make many of the claims mentioned which are their rights in Sri Lanka. Those who have been associated with promoting the rights of children bear a heavy responsibility for on going failures in protection. Many are the funds accumulated, venue reservations, meetings, projects, reports, teas and cakes associated with months and years passing with little or no progress. Charades of sickening proportions. Even a comprehensive set of recommendations on areas for implementation and reform commissioned by then Justice Minister Moragoda lay ignored.
These include the conclusion of children’s cases in three months in a context of close on 4,000 cases awaiting conclusion last year. There was exposure recently on injustices perpetrated under the archaic Vagrance Ordinance which persecuted the poor with calls for its recall. The call has been heard.
Similarly, this is a call to ensure fundamental rights of children are safeguarded, particularly those living in unfortunate circumstances who are victims of gross insensitivity of most stakeholders meant to champion their welfare.
Is it time government agencies mandated to protect children are charged for their omissions by and on behalf of children, clients who use the law for unsavoury practices with helper lawyers are slapped with penalties for wasting Court time or flung out of court in the shortest time?
Draft List of Laws that related to children in Sri Lanka
- Adoption of Children Ordinance No. 24 of 1949 as amended by Act No. 15 of 1992
- Children Young Persons Ordinance No. 48 of 1939 as amended
- Children and Young Persons (Harmful Publications) Act No 48 of 1956
- Citizenship (Amendment) Act No 16 of 2003 –
- Civil Procedure Code (1889) and relevant amendments.
- Code of Criminal Procedure (Amendment) Act No 20 of 1995; 19 of 1997 and 28 of 1998
- Community Based Corrections Act No. 46 of 1999
- Constitution of 1978 and 13th Amendment to the Constitution
- Corporal Punishment (Repeal) Act No 23 of 2005
- Drug Dependent Persons (Treatment and Rehabilitation) Act No. 54 of 2007
- Education Ordinance No 31 of 1939
- Employment of Women Young Persons and Children’s Ordinance No 47 of 1956 as amended
- Evidence (Special Provisions) Act No. 32 of 1999
- Factory Ordinance (1942)
- General Marriages Ordinance (1907) as amended
- Houses of Detention Ordinance (1907) as amended
- Immigration and Emigration Act (1948)
- International Convention on Civil and Political Rights Act No. 56 of 2007
- Judicature Act (1999)
- Kandyan Marriage and Divorce Act in 1995
- Maintenance Act No. 37 of 1999
- Mediation Boards Act as amended by Act No.4 of 2011
- National Authority on Tobacco and Alcohol Act No. 27 of 2006
- National Child Protection Authority Act No. 50 of 1998
- Obscene Publications Ordinance (1927) as amended
- Offences committed under the influence of liquor Act (1979)
- Orphanages Ordinance (1941) as amended
- Payment of Fines Ordinance No. 49 of 1938
- Penal Code (1883)
- Penal Code Amendment Acts No 16 of 2006
- Penal Code Amendment Acts No 29 of 1998
- Penal Code Amendment Acts No.22 of 1995
- Prevention of Domestic Violence Act No. 34 of 2005
- Probation of Offenders Ordinance No. 42 of 1944
- Registration of births and deaths as amended (1951)
- Release of Remand Prisoners Act No. 8 of 1991
- Shops and Office Employees Act (1954)
- Tsunami Act (2005)
- Vagrants Ordinance No 4 of 1841
- Youthful Offenders (Training School) Ordinance No 28 of 1939 as amended