Author: Katlo Rabasaka
The “best interests of the child” principle, highlighted in Botswana’s Children’s Act, demands that courts prioritize children’s welfare above everything else during divorce proceedings. Despite this legal framework, realities expose flaws in its implementation.
Section 29 of the Children’s Act of Botswana establishes that in every matter concerning a child, the child’s best interests shall be the paramount consideration.
In custody disputes, courts assess numerous factors, including emotional ties, the need for stability, and the capacity of parents to provide, all geared towards safeguarding the well-being of the child.
The Reality of Divorce Proceedings
However, the reality in many divorce proceedings paints a completely different picture. In most cases, the best interests of the child are subordinated to parental interests. In many divorce cases, the focus shifts from the child’s needs to the parents’ fight for custody.
Divorce is a very emotional and stressful process, and sometimes parents use children as weapons against each other. Lawyers operating within an adversarial system are, in most cases, focused on winning cases and not on protecting children. As such, decisions are made based on who argues better, and not necessarily on what is truly best for the child.
The Child’s Voice
Children are supposed to have a voice in these proceedings, but in practice, they are often not properly listened to. Courts sometimes treat the child’s opinion as a formality rather than as something important. This is partly because there are not enough trained child experts, such as psychologists and social workers, to help the court understand what children really need.
The Role of Wealth
Monied parents often have an advantage. They can afford better lawyers and demonstrate that they can provide a good home. Meanwhile, emotional support and the parent-child relationship, which are just as important, may be overlooked. In such cases, unfair outcomes occur where wealth, not love and stability, decides a child’s future.
Moving Forward
To fix these problems, we need change. Divorce cases should focus less on fighting and more on finding the best solution for the child.
Until “the best interests of the child” become a guiding principle in every, divorce case, and not just a slogan, children will continue to suffer because of decisions that are supposed to protect them.
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