#BTColumn – Child maintenance a complex issue

Disclaimer: The views and opinions expressed by this author are their own and do not represent the official position of the Barbados Today Inc.

There were two recent articles about access and maintenance in the media recently, which I wanted to add context to. I think the reason these articles seem to lack important context is because they choose to examine the issues of maintenance and access from the erroneous perspectives of their effects on fathers and not in their rightful context as factors that impact on children.

Access and maintenance are the rights of the child. Both rights are equally weighted, although one is not dependent on the other. Put another way, a child has equal access to be maintained by parents as they have to spend quality bonding time with parents.

A child should not be deprived of the right to access a parent due to non-payment of maintenance. However, in a case where a parent cannot maintain a child, the state has an obligation to the child and that process should be triggered by the parent affected by hardship. Due to our historical and cultural nuances I should reiterate, even if a parent is not responsible enough to ensure the maintenance of a child, the child still has a right to access to their parent for the purposes of bonding and support.

It is helpful to understand the origins of the systems of maintenance and access to correctly contextualize them. The first attempt to enshrine rights for children was in 1924. This was further institutionalized in 1946 with the establishment of the International Children’s Emergency Fund. Mothers and children were granted special conditions with the passage of the first Human Rights Declaration in 1948 and in 1959, a charter on the Rights of the Child was drafted.

The right of the child to maintenance and access to parents was enshrined in Principle 6 of the 1959 declaration which reads:

“The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable.”

It is from this Principle, which also coincides with the provisions for children in the law of many countries, that systems of access and maintenance are developed. This Principle was significantly expanded in the 1990 Treaty, to which Barbados is signatory. There are more clearly defined roles for state actors in the protection of children. That iteration reads,

Article 27

1. 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.

2. The parent (s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

We have to move fathers in Barbados away from thinking that monies they pay for the maintenance of their children goes to the benefit of the child’s mother. We also should be making it clear to fathers who cannot meet their parental obligation that the state is the place to turn for support.

In these times when mothers are also affected by layoffs and joblessness, it cannot be enough for a father to simply say he lost his job and cannot pay maintenance. He should go to the Welfare Department with his documentation and make an application on behalf of his child. He should also use the requisite form to notify the court of his status to avoid action.

With respect to access, fathers must be educated that the governing principle in Article 3 about decisions to be made being foremost in the best interest of the child override their rights as fathers. If a father has been abusive to the mother of his child or the child, whether that abuse is physical, sexual or emotional, that past behaviour will be factored into decisions about access.

Fathers must also be sensitized that grandparents do not have recognized parental rights. Thus fathers who collect children and take them to their mother’s houses when the child is to be in the care of the father are not strictly following the spirit of access. Father and child cannot bond when the child spends the time with extended family and not the father directly.

There is a final note worth mentioning –Article 3.2 of the Convention on the Rights of the Child reads,

States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

The bold section is my emphasis because it underlines the point that where parents have children and are not married, becoming a mother cannot override the rights of a woman as a single adult female. This is an essential point to underline given the types of family units we prefer in Barbados. We have a predilection for ‘sometime’ arrangements, multi sexual partnering and common law type family units rather than marriages, historically and culturally.

While it is not for me to judge these relationships for their rightness or wrongness, as good or bad, it is for all of us to become mature enough to understand the implications of such unions. Take, for instance, where a woman is single and unmarried, the law gives her the right to register her child in her name only. She may do so without requesting the father to appear on the child’s birth certificate.

As long as a woman has been apprised of the implications of such a decision and makes it consciously, I think the court impinges on her rights as a single woman to request that the child’s father’s surname be added by hyphen. If a father understands that there was a ‘sometimes’ arrangement that led to a child, it seems more permanent than necessary to have the child bear his surname.

Simplistic discussions about the rights and responsibilities of fathers or decisions that come from a woman’s rights backlash position will not get us further. We have to decide how our family units have provided for well-adjusted and well raised citizens historically. If we see areas which need improvement, those improvements must be made via the appropriate social re-engineering mechanisms.

I am all in support of positive, safe role models playing active roles in the lives of children, but I do not want to be made to support that at the detriment of subjugation of women’s rights. A part of the puzzle, I think, is the further destruction of the patriarchal construct of children as the property and chattel of their fathers. Children are independent human beings with an independent set of needs.

Marsha Hinds is the President of the National Organisation of Women