DIRE DAWA UNIVERSITY

COLLEGE OFLAW

The Interpretation of the Principle of Best Interest of the Child in Custody

Matter: a Case Study in Dire Dawa Federal First Instance Court

1
 BY: Tigistu Belay

ADVISOR: Gizachew Girma (Assistant Professor of Law)

December 2017

Dire Dawa, Ethiopia

2
Declaration

I, Tigistu Belay, hereby declare that the Interpretation of the Principle of Best Interest of the
Child in Custody Matter: a Case Study in Dire Dawa Federal First Instance Court is my original
work, and that all source of material used for the thesis have been duly acknowledged.

Signature………………………………..

Date……………………………………..

1…………………………………… …………………. …………………..

Advisor signature Date

2…………………………………… ………………… ……………………

Examiner signature Date

3…………………………………… ………………… ……………………

Examiner signature Date

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Acknowledgements

Firstly and above all, I am utterly pleased to give special thanks to God for His endless and an
indescribable compassion and companionship towards me.

Secondly, I owe indebtedness to my advisor, Assistant Professor Gizachew Girma (College of

Law dean in Dire Dawa University), who was exerting his effort and time on commenting my
thesis untiringly from the beginning to the end, and whose comment and advice was so
constructive, encouraging and insightful that caused the fruition of this paper. He substantially
added remarkable qualities to my work through his comment. Thank you so much once again!

Thirdly, I would like to extend my heartfelt gratitude to Dire Dawa Federal First Instance Court,
having assisted me in providing different relevant information to this study.

Fourthly, I would like to thank my interviewees: Ato Demeke Mekonin, the judge of Dire Dawa
Federal First Instance Court and W/t Rahel Balcha, social worker of Dire Dawa First Instance
Court.

Last but not least, I am profoundly indebted to my family- my mother Addisalem Teshome, my
brother Michael Belay and my bosom friend Tamiru Bekele - for all their encouragement, advice
and Moral support.

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Acronyms

ACRWC - African Charter on the Right and Welfare of the Child

ECHR- European Court of Human Right

FDRE- Federal Democratic Republic of Ethiopia

EUCJ -European Union Court of Justice

RFC- Revised Family Code

UDHR-Universal Declaration of Human Right

UN- United Nation

UNCRC: United Nation Convention on the Right of Child

UNHCR: United Nation High Commissioner for Refugees

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Table of Contents
Declaration ..................................................................................................................................................... i
Acknowledgements ....................................................................................................................................... ii
Acronyms ..................................................................................................................................................... iii
CHAPTER ONE ........................................................................................................................................... 1
INTRODUCTION ........................................................................................................................................ 1
1.1. Background of the Study................................................................................................................... 1
1.2. Statement of the Problem .................................................................................................................. 4
1.3. Objective of the Study....................................................................................................................... 6
1.3.1. General Objective of the study...................................................................................................... 6
1.3.2. Specific Objectives of the study.......................................................................................................... 6
1.4. Research Question ............................................................................................................................ 7
1.5. Research methodology ...................................................................................................................... 7
1.6. Significance of the Study .................................................................................................................. 8
1.7. Scope of the Study ............................................................................................................................ 8
1.8. Limitation of the Study .......................................................................................................................... 8
1.9. Organization of the Paper ................................................................................................................. 9
CHAPTER TWO ........................................................................................................................................ 10
The Best Interest of the Child: General Overview ...................................................................................... 10
Introduction ................................................................................................................................................. 10
2.1. The Concept of Childhood under International and National Laws .................................................... 11
2.1.1. Commencement of Childhood ...................................................................................................... 11
2.2. Concept and meaning of the best interest of the child. ........................................................................ 12
2.2.1. Problem of Definition ................................................................................................................... 12
2.2.2. “The Best Interest of the Child”: a Right Based Approach” ......................................................... 13
2.3. Historical Development of the Best Interest of the Child .................................................................... 17
2.3.1. Evolution of the Doctrine of “The Best Interest of the Child” ......................................................... 17
CHAPTER THREE .................................................................................................................................... 19
The Legal Incorporation of the Best Interest of the Child under international and regional legal
instruments .................................................................................................................................................. 19
3.1. The Declaration of Geneva .................................................................................................................. 19
3.2. The Universal Declaration of Human Rights ....................................................................................... 19

iv
3.3. The Best Interest of the Child under the Convention on the Rights of the Child (CRC) Articles 3 and
4 .................................................................................................................................................................. 20
3.4. CRC General Comment on the Best Interest of the Child ................................................................... 22
3.4.1. Legal analysis of article 3, paragraph 11. ......................................................................................... 23
“In all actions concerning children”............................................................................................................ 23
3.4.2. Elements to be taken into Account when assessing the Child's Best Interests ................................. 28
3.4.3. Balancing the Elements in the Best-Interests Assessment ................................................................ 31
3.5. The Best Interest of the Child under Regional Legal Instrument ........................................................ 31
3.5.1. The Best Interest of the Child and the African Charter on the Rights and Welfare of the Child
(ACRW) ...................................................................................................................................................... 31
3.6. Experience of other Countries.............................................................................................................. 33
3.6.1. Florida ............................................................................................................................................... 33
3.6.2. HONG KONG .................................................................................................................................. 34
3.6.3. The best interest of the child in the Namibian context...................................................................... 34
CHAPTER FOUR....................................................................................................................................... 37
The Best Interest of the Child under Ethiopian Laws ................................................................................. 37
4.1. The Constitutional Regime of Child Rights in Ethiopia ...................................................................... 37
4.2. The Civil Code of the Empire of Ethiopia 1960 .................................................................................. 39
4.3. The Federal Revised Family Code of Ethiopia 2000 ........................................................................... 40
4.4. Cassation decision ................................................................................................................................ 41
CHAPTER FIVE ........................................................................................................................................ 44
The Current Practice of Dire Dawa First Instance court on the interpretation of the best interest of the
child in custody issue .................................................................................................................................. 44
5.1. The practice of the court and findings of the researcher ...................................................................... 44
5.2. CASE ANALYSIS............................................................................................................................... 48
5.2.1. Case one, File No 56164. .................................................................................................................. 48
5.2.2. Case two, File No 56148 ................................................................................................................... 50
5.2.3. Case three, File No 56548 ............................................................................................................. 53
5.3. Critiques on the Law, practice and decision of the cases ..................................................................... 55
CHAPTER SIX ........................................................................................................................................... 58
Conclusion and Recommendation .............................................................................................................. 58
6.1. Conclusion ........................................................................................................................................... 58
6.2. Recommendations ................................................................................................................................ 60
Bibliography ................................................................................................................................................ ix

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ANNEX ......................................................................................................................................................xiv

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 Abstract

This study focus on the Interpretation of the Principle of Best Interest of the Child in Custody
Matter: a Case Study in Dire Dawa Federal First Instance Court. The question who should take
custody of children is a contentious issue. The most serious problem emerges in the true world
practice on the claim of maintenance and custody matter mostly after separation or divorce. In
practical situation the decision may be unfair and injustice. In this regard the study persuades
court cases on custody of children, interview with the judge and social worker.

The position of Ethiopian Family law with regard to the principle best interest of the child is that
Unlike the Civil Code, which entrusts the child to the custody of his/her mother until the age of
five, Article 113 of the Revised Family Code entitles the court to decide on the custody of
children. The court shall decide the custody of the child by taking into consideration the best
interest of the child.

As to the finding of the researcher the legal gap in implementing the best interest of the child
principle by the judiciary in custody matter is that there is only one provision in the revised
family code that deals with child custody matter and this provision also is very general one. And
also there is no a provision with regard to the age where a child can be regarded as capable
expressing an independent opinion.

According to the aim of the study to investigate factors taken in to account by Dire Dawa
Federal First instance court in deciding child custody matter It investigates factors taken by the
judge and the social worker to determine the best interest of the child and how the Judge and
social worker involved in the determination of the child’s best interest.

Finally, Based on the identified substantive and practical gaps on the interpretation of the best
interest of the child principle the study provide basic implications to all concerned bodies,
specifically for the House of people representative and the judge and social worker of Dire
Dawa First Instance Court.

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 CHAPTER ONE

INTRODUCTION

1.1.Background of the Study

In colonial and early republic times, children were treated as economic asset based on the
amount of labor they were able to do. In this early era, the father as the head of the household
had the complete right to the custody and control of his children both during the marriage and in
the rare event of divorce.1 In the1839, the British parliament modified this paternal preference by
the “tender year’s doctrine, mother gained favor as the parent better able to handle the emotional
and nurturing needs of children.2

During the twentieth and twenty-first centuries, women took on more of an equal economic role,
resulting in the shift of custody from one parent to both parents, or joint as long as it’s in “the
best interest of the child. While the divorce rate soared, the rule governing child custody grew
increasingly focused. “ the simple fact of being a mother does not by itself , indicate a capacity
or willingness to render a quality of care different from that which the father can provide” with
the old rule gone, state legislator and judges have turned to social science to develop new
guideline to aid the judges in making this difficult decision. This standard differs from the initial
parental predominance to best interest of the child. In fact the application of best interest of the
child standard is “gender neutral” and it has won recognition in both the common law as well as
in the civil law system.3 It can be said that what constitute “the best interest of the child” is a
matter of continuing dispute.

Currently, what is envisaged under many laws is the principle of “best interest of the child” in
determining custody issue. The principle of the best interest of the child incorporated in different
international human right instrument. One of such international human right instrument is the
united nation convention on the right of the child.
which says that “ in all action concerning children ,whether undertaken by public or private
social welfare institution, courts of law, administrative authorities or legislative bodies, the best
interest of child shall be the primary consideration.” Accessing the best interest of child

1
Malia, M,B, Louisiana Family Law; the Visitation of the Non Custodian Parent (1985), p.489.
2
Lenore J. Weitzman, The Divorce Revolution; The Unexpected Socio and economic Consequence for
women,(1987) p. 219
3
Ibid

1
means to evaluate and balance all the elements necessary to make a decision in a specific for a
specific individual child or group of child. Due to the diversity of factors to consider, usually
more than one profession or institution is involved in assessment process, bringing together
various perspective and areas of expertise from the country of origin and destination and, in
particular, the perspective of child. Art.4 of the convention of the right of children provides
obligation of member state to undertake all appropriate legislative, administrative and other
measure for the implementation of the right enshrined in the convention.4

Similarly Under art.4(1) of African charter on the right welfare of the child which provide better
than CRC for child’s takes the best interest of child as a principle that should be employed in
deciding any issue that involve the right of child and it gives primary consideration for the best
interest of the child.5

Ethiopia is a state party to the convention on the right of the child, the African charter on the
right and welfare of the child and international human right treaties, as a member state to both
treaties, Ethiopia has been taking various measure to ensure the realization and observation of
the right of the child as enshrined under the convention and African charter and other treaties as
well. There are basic problem in implementing the FDRE Constitution and international
convention in deciding what is best for the child. Many writers try to explain and define what the
best interest of the child is and what it constitutes.

Andrew Schepared Examined that child custody dispute in Virginia, argue that Parents are
essential to raising children. They love them, make major decision for them, and provide a roof
offer their heads. In “intact” families, parents make decision for their children jointly. There is no
issue about where child lives because parents live together with the child in the same place.
However, many families do not remain “intact” the parent separate or divorce. When separating
or divorcing parents cannot agree on who should make decision for their child ,where the child
should lives or how much one parent should see the child. In every state, the overarching
principle that the judge use to evaluate the parents competing claims is the “best interest of the
child.” according to him, a custody decision must contain the following criteria in determining

4
United Nation Convention on the Rights of the Child, opened for signature 20 Nov. 1989, CRC (entered in to force
2 Sept. 1990) Article 3(1).
5
African Charter on the Rights and Welfare of the Child, OAU Doc. 1990, (entered into force 29 Nov. 1999), art.
4(1).

2
the best interest of the child. The age, physical and mental condition of the child , the age and
physical condition of the parent, the propensity of each parent to actively support the child’s
contact and relation with the other parent.6

Girmma Alemu, examined how the principle of best interest of the child is enshrined under
international law, the obligation of the state and its administrative organ. The provision states
that the best interest of the child shall be a primary consideration in all action concerning
children, the principle of the best interest of the child require public and private bodies, social
welfare institution, courts, administrative bodies to ascertain the impact on the children of their
action with the view to confirm that the best interest of the children are taken as the primary
consideration in making decision affecting them. Thus, the bodies and institution are required to
apply the principle of the best interest of the children systematically. He also added that
Interpretation of the best interest of the child must be compatible with the overall objective and
purpose of the convention. The interpretation of the child must not be highly influenced by
consideration of cultural relativism. Further state that the principle best interest of the child
require decision be based on the needs and circumstance of the individual child and it is dynamic
concept that must taken into account the views and evolving capacity of the child.7

Ashagrie, G. Abdi, try to view the best interest of the child principle in line with the Ethiopian
civil society law and recommend that there must be mechanism in place to implement the
principle of the best interest of the child.8

As far as the above literature is concerned, the researcher therefore, wants to explore how far the
court of Dire Dawa Federal first instance court has gone as regard the opinion of the child in
custody matter. Moreover, the researcher want to investigate how the court of Dire Dawa Federal
first instance court interpreted the principle and what are the criteria that they employed. Many
writers try to define what exactly the “best interest of the child mean”. But most of them failed to
address adequately discuss how to interpret the principle of the best interest of the child by
courts and what factor should be take in to account when decision are taken by courts which

6
Andrew Schepared , Best Interest of The Child: online available at http://childcustodyproject.org/essay/best-
interest-of –the –child, last visited on Nov. .29.
7
Girmachew Alemu , Hand Book on The Right of The Child in Ethiopia, (Addis Ababa, n.d), P. 42
8
Ashagrie Abdi, ‘The Ethiopian Civil Society Law in Light of The Principle of The Best Interest of The Child’,
interdisciplinary journal of human right, V.7: 1, p 19

3
would or likely affect the child. This principle cannot be adequately discussed unless reference is
made to the issue that commonly affect children, such as divorce and custody.

The research paper will try to show what the “ best interest of the child mean’’ and what are the
factor that should be taken in to account by courts when the decision are made. Therefore, the
research paper is not limited only the legal framework of the best interest of the child rather it
will also investigate how the Dire Dawa Federal first instance court applied and interpreted the
principle of the best interest of the child.

1.2. Statement of the Problem

The concept of the child's best interests is complex and its content must be determined on a case-
by-case basis.9 It is through the interpretation and implementation of article 3, paragraph 1 of
CRC in line with the other provisions of the Convention (CRC), that the legislator, judge,
administrative, social or educational authority will be able to clarify the concept and make
concrete use thereof.

Accordingly, the concept of the child’s best interests is flexible and adaptable. It should be
adjusted and defined on an individual basis, according to the specific situation of the child or
children concerned, taking into consideration their personal context, situation and needs.10

The principle of the best interest of the child is also embodied under Article 7 of UN Declaration
which states that “best interests of the child shall be the guiding principle of those responsible for
his education and guidance …” the principle of the best interests of the child is recognized not
only in different domestic laws of countries but also in many international human right
instruments.

However, despite such universal recognition of the principle, defining the concept is still a
problem. It is difficult to determine the best interest of child because the application of the best
interest of child is always difficult since there is no single identified criterion to identify it. The
problem may arise from the absence of adequate interpretation of the principle, from the
reluctance of the judges to analysis the constitution and international instruments or from its
difficulty to know which factor to take in to account when deciding what the child’s best interest

9
General comment on CRC No. 14 (2013) on the right of the child to have best interest taken as a primary
consideration, (art. 3, para. 1)
10
Ibid

4
is. The best interest of the child in the lower counts is that they don’t have reference for different
national, regional state laws and other international instruments such as human rights, women
and child/children’s rights. Court decisions in the lower courts depend on equity rather than
based on the written low. Besides, they don’t infer many related and essential printed materials
that are very significant to fair decision making.11

The question who should take custody of children is a contentious issue.12 The most serious
problem emerges in the true world practice on the claim of maintenance and custody matter
mostly after separation or divorce. In practical situation the decision may be unfair and injustice.
This problem starts from insufficient skill and knowledge of the judges.13 In this case they
cannot properly interpret the law and unable to give the appropriate decision. And also the law
has the short coming of to be special indication related to the case. It has also the problem to give
the right and the correct decision to each and every case to the courts. In this case judges are
fully biased on the ground of giving decisions. Therefore, courts are mostly based on equity
influenced decisions rather than codified based decisions. According to the above and other
factors, many parents and child have been affected by the unfair decisions. In addition to this,
also they suffer by economical, financial, psychological and other social problems. And the
possibilities are very narrow to reverse decisions on the appellate courts.14

Originally, the doctrine of the best interest of the child had limited application. It was little more
than a way of ensuring that the interests of any children involved would be taken into account in
divorce and custody cases.15 However, this principle is, nowadays, extended to apply not only in
its original sense, but also “in relation to all actions concerning children” to quote the language
of the 1989 UN Child Rights Convention.16

11
Abebe Tsehay, problems surrounding divorce in federal revised family code law and practice, (St. Mary’s
university college faculty of law, July 2010), p.38
12
Mulugeta G. Sisay, “Departure of Ethiopian Family Laws: the Need to Redefine the Place of Societal Norms in
Family Matters”, Haramaya L. rev, vol. 4:1, 81-106, (2015), p. 103.
13
Abebe (2010), Supra note 11, p.31
14
Ibid
15
Aron Degol and Shimelis Dinku, “Notes on the Principle “Best interest of the child” meaning, history & its place
under Ethiopian law”, Mizan law review, V. 5:2, Dec. (2011), p.321
16
Ibid

5
Despite the recognition of the principle of the best interest of the child in national and
international instruments, there is no binding content attached to it. 17 As a result, determining the
exact content of this standard and hence what is best for the child has to be assessed on a case by
case basis depending on the particular realities of a given state.18

Concluding observation of the committee on the rights of the child notes that certain traditional
practices and customs, prevailing particularly in rural areas, hamper the effective implementation
of the convention, especially with regard to the child.19 The committee also noted that there is a
lack of awareness and understanding in the state party of the principles and provisions of the
convention. In this regard the committee is concerned at the lack of adequate and systematic
training provided to law enforcement officials, judicial personnel, teacher’s social workers and
medical personnel. The committee further notes that insufficient attention has been paid in
practice as well as in legislation to the principle of best interest of the child, respect for the
child’s view and the child’s participation in family, social and school life.20

Therefore, the researcher found that it is necessary to investigate and come up with a decisive
solution to the principle of best interest of the child in custody matter. Hence, the study seeks to
find out how the principle of best interest of child is implemented by Dire Dawa federal first
instance court on matters relating to child Custody. Moreover, the study will ascertain the
aforementioned problems (problems which are mentioned by concluding observation committee)
are existing in Dire Dawa Federal First instance court.

1.3.Objective of the Study

1.3.1. General Objective of the study

The general objective of the study is to identify how the concept of “best interest of the child” is
interpreted by Dire Dawa Federal first instance court in child custody matters.

1.3.2. Specific Objectives of the study

Based on the general objective of the study, more particularly the study will be conducted to;-

17
Ibid, 334
18
Ibid, 325
19
Concluding observation of the committee on the rights of the child, Ethiopia, UN.DOC.CRC/C/15/ Add.67 (1997),
Fourteenth session, consideration of reports submitted by state parties under art. 44 the convention, at the 371 st
meeting, held on 24 January 1997 note No. 8
20
Ibid, No. 9

6
  Identify the position of Ethiopian Family law with regard to the principle best interest of
the child.
 Identify legal gaps in implementing the best interest of the child principle by the judiciary
in custody matter.
 Investigate factors taken in to account by Dire Dawa Federal First instance court in
deciding child custody matter.
 Ascertain whether the best interest of the child is taken in to consideration while deciding
on child custody in Federal first instance court Dire Dawa bench.

1.4.Research Question

To attain the above objectives the researcher formulate the following research questions;-

 What is the position of Ethiopian Family law with regard to the principle best interest of
the child?
 How Judges & experts (social workers) involved in the determination the child’s best
interest?
 What are the factors taken in to account by Dire Dawa Federal First instance court in
determining the best interest of the child?
 Whether the best interest of the child is taken in to consideration while deciding on child
custody in Federal first instance court Dire Dawa bench.

1.5.Research methodology
1.5.1. Source of data

The sources of data used in this thesis are gathered from both primary and secondary sources.
The primary sources used in the questions are interview (with the judge and social worker),
legislations (statutes) and precedents (Federal Supreme Court cassation bench decisions). The
secondary sources to be employed includes books, cases, commentaries, journals and periodicals

1.5.2. Method of data collection

The method of data collection employed by the researcher in the thesis is interview (with the
judge and social worker of Dire Dawa first instance court), observation and legal document
analysis.

1.5.3. Sampling method

7
The method of sampling employed by the researcher is purposive sampling thus; purposive
sampling technique is used in the thesis since the research is case study the researcher takes
sample cases purposively from Dire Dawa Federal first instance court on which the court had
decided child custody issues

1.5.4. Method of data analysis

This paper presents the findings of a qualitative study, documenting and providing an overview
of the interpretations of the concept of “best interests of the child” in child custody proceedings
by child protection workers and attorneys, including child inclusion in the court practice.
Qualitative research method also helps to interpret and better understanding of the multifaceted
reality of a given situation. The reason why the researcher prefers this methodology is because of
my research mainly focused in why and how the court of law makes decision regarding custody
matter.

1.6.Significance of the Study

 To provide a guide line for the judicial body how to the best interest of a child principle
should be interpreted
 To recommend a possible solution to the problem arising in implementing the best
interest of child principle in matter relating to Child custody.
 The study will serve as a literature review in a sense that it would provide useful
information for other researchers, who conduct research on this topic or related topics.

1.7.Scope of the Study

The study focuses on the implementation of the best interest of the child principle. It only
evaluates the application/implementation of the best interest of the child principle in child
custody matter after the issue of child custody is raised before Dire Dawa Federal First instance
court.

1.8. Limitation of the Study

The researcher has faced here under listed limitation and challenges. Shortage of time is the main
limitation in the course of conducting this research, this research had conducted at the time the
researcher is required to attend classes and preparing for exit exam. Time constraint has not
allowed the researcher to undertake the significant study to explore details to Dire Dawa First

8
Instance Court. The other difficulties the researcher had encounters during the research is lack of
lack of sufficient internet access. However, irrespective of these barriers, the researcher had tried
to come up with good research.

1.9.Organization of the Paper

The research paper consists of six chapters: The first chapter contains general overview about
the study, such as background of the study ,statement of the problem, objective ,significance
,methodology, scope of the study, and limitation of the study .The second chapter contain
literature review(General Overview about The Best Interest of the Child) which include the
concept of the best interest of a child under international and national laws, Concept and
meaning of the best interest of the child and Historical Development of the Best Interest of the
Child. The third chapter deals with The Legal Incorporation of the Best Interest of the Child
under the international and regional legal instruments and Experience of other Countries. The
fourth chapter deals with Ethiopian laws, (including cassation decisions). The fifth chapter deals
with Cases Analysis and Current Practice of Dire Dawa Federal First instance court. The sixth
chapter contains conclusion and recommendation.

9
 CHAPTER TWO

The Best Interest of the Child: General Overview

Introduction

The principle of “best interest of the child” is a key concept in the world’s child right protection
movement and it mainly applies in the area of family disputes such as custody, guardianship,
21
maintenance , adoption of the child and other issue. The overall theme of the principle is that
due focus and priority should be given to the political, economical and social interest of the child
whenever policies, laws and decision are made which directly or indirectly affect children.

This principle was first expressly incorporated in the 1924 Geneva Declaration on the Right of
the child and the 1959 United Nation (UN) Declaration on the Right of the Child respectively.22
It is also one of the cornerstones of the 1989 UN Convention of the right of child (UNCRC)23
and the 1990 African Charter on the Right and Welfare of the Child (ACRWC).24The principle
of “the best interest of the child” has also been recognized in the Ethiopian legal system from as
early 1960s.25The standard of the “best interest of the child” was incorporated in to the civil code
and this tradition has continued with the principle having been mentioned in the Constitution of
the Federal Democratic Republic of Ethiopia (FDRE Constitution).26 Even though, its
incorporation in international, African and domestic laws, the issue of the best interest of the
child and the determination of its test remain problematic. It is evident that the international and
domestic legislation and other measure of protection that exist lack effectiveness when it comes
to the monitoring and implementation of children’s rights.

21
Stephen Parker, “the Best Interest of the Child: principle and problems: The Best Interest of the Child:
Reconciling Culture and Human Rights”, International Journal of La”w, Policy and the Family, Vol.8, (1994), p.27.
22
The Preamble of the Geneva Declaration of the Right of Child, adopted on 26 September1924 (League of Nation)
and the Preamble of the Declaration of the Right of the Child, adopted by UN General Assembly Resolution 1386of
10th December 1959.
23
UNCRC (1989), supra note 4, Art.3
24
ACRWC, (1990), Supra note 5, Art.4
25
The Civil Code of the Empire of Ethiopia 1960, proc.No 2 neg. gaz. year 19 th , Art.681
26
Proclamation of the constitution of the federal democratic republic of Ethiopia, Proc., No 1/1995;, Federal Negarit
Gazete, 1styear No.1 Addis Ababa-21st August/1995,Article,36(2).

10
2.1. The Concept of Childhood under International and National Laws

2.1.1. Commencement of Childhood

The Convention on the Rights of the Child (hereinafter the “CRC” or “the Convention”) defines
“child” as every human being below the age of eighteen years.27

The Convention does not provide the minimum age of childhood. It does not stipulate either birth
or conception as the starting point of childhood. The silence of the Convention on this point is
intentional. The Convention avoids taking position on the controversial issue of abortion with a
view to encourage universal acceptance of the instrument.28 The setting of the starting point for
childhood is left to the determination of States Parties to the Convention.29 Moreover, the
Convention does not conflict with domestic legislation which provides better protection more
conducive to the realization of the rights of children.30

On the other hand, the African Charter on the Rights and Welfare of the Child provides a
different definition of the term child. The Charter defines a “child” as every human being under
the age of 18 years.31 This makes the definitions of the concept of childhood under the African
Children’s Charter not subject to limitations.32 The omission of the phrase “unless majority Is
attained earlier” in the African Children’s Charter makes the instrument more comprehensive
and inclusive.33 On the contrary, the Convention is more prescriptive and not inflexible as
regards the end of childhood.34

The term “child” is not specifically defined under Ethiopian law. Instead, Ethiopian laws make
use of such terms as “minors”, “infant”. “young workers” or “young persons”. Chapter Twelve
of the Revised Family Code deals with minors. The Revised Family Code defines a “minor” as a
person of either sex who has not attained the full age of eighteen years old. 35Based on the

27
UNCRC (1989), Art.1(1), 20 Nov.
28
GirmachewAlemu (Ph.D.) and YonasBirmeta, Handbook on the rights of child in Ethiopia prepared by Center for
Human Rights College of Law and Governance Studies, Addis Ababa University In Collaboration with Save the
Children Norway-Ethiopia, p.9.
29
Ibid
30
Ibid
31
ACRWC, (1990), Supra note 5, Art.2
32
Michael Gose, The African Charter on The Right and Welfare of The Child, (2002) p.27
33
Ibid
34
Ibid
35
The federal Negarit Gazetta of the federal democratic republic of Ethiopia 6 th year extraordinary no.1/2000, Addis
Abeba 4th day of July 2000, the revised family code proclamation No.213/2000, Art 215

11
Revised Family Code and Family Codes adopted by other Regional States in Ethiopia, it is
possible to assert that the general age of majority in the country is 18 years.

2.2. Concept and meaning of the best interest of the child.

2.2.1. Problem of Definition

As the researcher try to discuss earlier, the principle of the best interest of the child is recognized
not only in different domestic laws of countries but also in many international human right
instrument. Despite such universal recognition of the principle, defining the concept is still a
problem. “ just as value and norms are not the same everywhere, so are understanding of this
notion.”36 In this regard James R. Himes observed that: The challenge of interpreting

“ the best interest” principle is complicated by many Powerful forces at work in the world: poor
and conflicted –torn societies of Africa to the bewildering legal and ethical concern about the
technological manipulation of human genes and the human reproductive system”.37

Moreover, the standard of the best interest of the child is subjective and vague as the result it
require courts to make subjective decision regarding children’s the welfare. Because of the
standard provides no objective basis for judicial choice, best interest decision depend on the
character, value and prejudices of the presiding judge.38

Philip Alston, on his part, raises the following instance to show the difficulty of not having a
definite meaning of the principle of the best interest of child. In some highly industrialized
countries, the child’s best interest are obviously best Served by policies that emphasis autonomy
and individuality to the greatest possible extent. In more traditional societies, the links to family
and the local community might be considered to be paramount importance and the principle that
“ the best interest of the child” “shall prevail” will, therefore, be interpreted as requiring the
sublimation of the individual child’s preferences to the interests of the family or even the
extended family.39 To conclude, despite the recognition of the principle of the best interest of the
child in national and international instruments, there is no binding content attached to it. As a

36
Philip Alston, “The Best Interest Principle: Towards a Reconciliation of Culture and Human Right, Reconciling
Culture and Human Right” (1994), Vol.8. p.4
37
Ibid, p.12
38
Janel L. Dolgin, Why Has the Best Interest Standard Survived? the historic and social context (1996) p. 2
39
Philip Alston (1994) supra note 36, p.10

12
result, determining the exact content of this standard and hence what is best for the child has to
be assessed on a case by case basis depending on the particular realities of a given state.

2.2.2. “The Best Interest of the Child”: a Right Based Approach”

To alleviate this definitional problem the researcher stated above, some scholars suggest that the
‘best interest’ standard should be construed in light of the other rights of the child. 40 It can also
be seen in light of the general social welfare, and the moral, religious and cultural inclinations of
parents that may tend to compete with the child’s best interest in some situations. There is thus
the need to check the compliance of a particular set of values with the rights of the child before
using it in the determination of a case at hand.

This position is further strengthened by the argument that these rights in general are part of the
‘best interest’ concept as they are intended to be used in its realization and to be applied with ‘the
best interest of the child’ constantly in mind.41 This line of interpreting ‘the best interest’
standard in light of the rights of the child leads to the conclusion that the standard exceeds the
traditional concepts of child upbringing, which are found in any society. In short, this means that
the traditional conceptions may be employed only so long as they are in conformity with the
other rights of the child.

The exact content of these rights is to be determined having regard to the socio-economic and
other relevant factors involved. The reference to these factors is called for because ‘a judge is not
dealing with what is ideal for the child but with what best can be done in the circumstances.’42
This determination of the best setting for a child may involve choice as to which one entails a
lesser evil depending on the relevant factors considered. Therefore, the reference to the other
rights of the child will be our benchmark in searching for the actual content of the principle ‘best
interest of the child’ in a rights-based approach. The following sub-section offer a number of
schematic arguments in support of the proposition that the best interests concept is
fundamentally a rights-based concept.

(a)Best Interests’ Informs the Meaning of Rights

40
Michel Freeman and Philip Veerman, (ed.), The Ideology of Children’s Rights(1992) p. 24
41
Ibid, 129
42
P.M Bromely and N.V Lowe, Bromley’s Family law (7th ed., 1987), P. 317

13
The best interest’s obligation as established in Article 3(1) CRC has been identified by the
Committee RC as a general principle of the Convention, applicable across all the other
substantive rights. Thus it has stated that ‘[a]s regards Article 3 Paragraph 1 of the Convention,
the Committee emphasizes that the Convention is indivisible and its articles are interdependent
and that the best interests of the child is a general principle of relevance to the implementation of
the whole Convention.’43 In terms of its value-added to the substantive rights in the Convention,
at least three functions of the best interest’s principle can be identified.

First, it may be used as an interpretative device, giving meaning to a substantive right where the
meaning of the right is ambiguous/vague. The EUCJ has begun to use the best interest’s principle
in Article 24 of the Charter of Fundamental Rights as an aid to the interpretation of other Charter
rights.44 And secondary legislation, albeit not yet in the asylum context. The ECHR regularly
uses the best interests principle in its interpretation of Article 8 ECHR and in the past year has
begun to use the principle to inform the meaning of Article 5 ECHR in cases involving
immigration detention of minors.45

Second, the best interest’s concept can act as a means of extending the scope of a right. For
example, while the CRC refers in articles 5 and 18(2) to the concept of legal guardianship, and
provides in Article 20 that a child temporarily or permanently deprived of his/her family
environment ‘shall be entitled to special protection and assistance provided by the state’, the
Convention falls short of establishing the right of a child temporarily or permanently deprived of
his/her family environment, such as an unaccompanied minor, to a legal guardian or equivalent
representative. However, the best interest’s concept can be brought to bear to bridge the gap
between these two rights.46

Third, the best interest’s concept can act as a mediator in resolving possible conflicts between
rights. For example, the immigration detention of accompanied children can pit two core rights
against each other: the right of the child not to be deprived of his/her liberty arbitrarily under
Article 37(b) CRC and a right not to be separated from his/her parents against their will under
Article 9(1) CRC. The best interests of the particular child will be key in deciding whether to a)

43
Committee RC, Concluding Observations to, inter alia, Jordan in 2006, U.N. Doc CRC/C/JOR/CO/3, para. 37.
44
Smyth Mary, The Common European Asylum System and Rights of Children : an Exploration of Meaning and
Compliance(2013) Pp. 27-29.
45
Ibid
46
Ibid

14
release the child into the care of the state, thus prioritizing the right not to be arbitrarily detained
over the right not to be separated; b) keep the family together in detention, thus prioritizing the
converse or c) release the entire family.47

(b)Rights Inform the Meaning of ‘Best Interests’

If ‘best interests’ inform the meaning of rights, it is also true to say that rights inform the
meaning of best interests – something that has been recognized by the EUCJ, and the ECHR.
Perhaps the clearest illustration of the right of the child to be heard – sometimes called the right
of the child to participate. One of the traditional criticisms of the best interests concept was that it
appeared to superimpose on the child a decision about what was in his/her best interests, contrary
to or at least regardless of his/her own view of what was in his/her best interests. The problem is
briefly put by Archard and Skivenes:

The problem arises because the two commitments [best interests and the child’s views] seem to
pull in different directions: promotion of a child’s welfare is essentially paternalistic since it asks
us to do what we, but not necessarily the child, think is best for the child; whereas, listening to
the child’s own views asks us to consider doing what the child, but not necessarily we, thinks is
best for the child.48

However, an approach that construes the child’s best interests in opposition to the child’s views
is not consistent with the scheme of the CRC. Article 3(1) on the best interests of the child is one
of four general principles of the Convention. But another of the general principles is contained in
Article 12, paragraph 1 of which provides: ‘States Parties shall assure to the child who is capable
of forming his or her own views the right to express those views freely in all matters affecting
the child, the views of the child being given due weight in accordance with the age and maturity
of the child.’49The Committee RC has been consistent in its efforts, in General Comment No. 12
on the right of the child to be heard, in which the Committee notes that:

47
Ibid
48
David Archard and Marit Skivens, Balancing a Child’s Best Interest and a Child’s Views , International Journal
of Children’s Rights(2009), p.2
49
Smyth (2013) supra note 44, p.31

15
 There is no tension between articles 3 and 12, only a complementary role of the two general
principles: one establishes the objective of achieving the best interests of the child and the other
provides the methodology for reaching the goal of hearing either the child or the children. In
fact, there can be no correct application of article 3 if the components of article 12 are not
respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential
role of children in all decisions affecting their lives.50

To be clear: it is not that the child decides what is in his/her best interests; it is that the child
participates in the decision-making process. There is no universal remedy to the real life
difficulties of reconciling divergent accounts of best interests by the decision-maker and the
child. However, the participation of the child in the process increases the likelihood of a decision
that corresponds with the views of the child and ensures that a decision that is contrary to the
views of the child is justified on that account, making the decision-making process more strong
and the decision-maker more accountable.

It is clear from the preceding arguments that the rights-based approach gives emphasis to the
relationship between best interests and rights. Of course, it is not possible to say in the abstract
what is in the best interests of any given child; indeed, part of the function of the best interests
principle is to direct attention to the individual child and his/her unique circumstances.

But the rights of the child function as general indication of the child’s best interests. Thus,
Eekelaar comments that ‘such rights [as are contained in the CRC] can be viewed as objective
determinations by the international community of what children’s interests are.’ Furthermore, the
rights of the child and, indeed, the spirit of the Convention as a whole (which centers on the
dignity of the individual) circumscribe what can be said to be in the best interests of the child.
Accordingly, it is simply not possible to assert that a given course of action is in the best interests
of the child if it violates a relevant right of the child. Therefore, the close connection between the
best interests of the child and the rights of the child means that any assessment of best interests in

50
Committee RC, General Comment No. 12, ‘The right of the child to be heard’, U.N. Doc. CRC/C/GC/12 (2009),
para. 74.

16
the CEAS instruments (or indeed of whether the CEAS is in the best interests of children) is
essentially an inquiry into the degree of respect for the rights of the child. 51

But for the sake of definition purpose, the best interest of the child means considering the child
before a decision affecting his/her life is made. This is a principle that has established itself
through all matters and legislation affecting the well-being of the child. It is an influential
common law principle that has been used to assist primarily courts and other institutions in the
decision-making process. It should be borne in mind that courts are the upper guardians of minor
children and, if the need arises, have a final say in determining the overall welfare of the child.
These interests themselves are particularly sensitive as they often relate to family status matters
in terms of divorce, maintenance, and custody and control.52

2.3. Historical Development of the Best Interest of the Child

2.3.1. Evolution of the Doctrine of “The Best Interest of the Child”

The doctrine of the best interest of the child is a widely recognized principle in child right
protection. This legal principle largely applies in relation to family affairs; in particular, in
disputes concerning custody, guardianship, maintenance, adoption, etc of the child. Originally,
the doctrine of the best interest of the child had limited application. It was little more than a way
of ensuring that the interests of any children involved would be taken into account in divorce and
custody cases.53

However, this principle is, nowadays, extended to apply not only in its original sense, but also
“in relation to all actions concerning children” to quote the language of the 1989 UN Child
Rights Convention. Despite its very limited jurisprudential origins, the principle of the best
interest of the child is, in one form or another, embodied in many national and legal systems and
has important analogues in diversified cultural, religious and other traditions.54

However, this apparent communality is accompanied by very diverse interpretations that may be
given to the principle under different settings. In early times, fathers were given custody of their
children in case of divorce. For instance, in feudal Europe, the father used to have a paramount

51
Smyth (2014), supra note 44, p.34
52
Mahlobogwane, F. south African Courts and The Best Interest of the Child in Custody Dispute, (2005).p.3
53
Philip (1994) supra note 36, p. 4
54
Ibid p.5

17
right to have custody of his children as children were considered to be part of his patrimony. 55 In
1839, the British parliament modified this paternal preference by the ‘tender years doctrine’.56
This doctrine holds that children under seven years of age should not be separated from their
mothers. This was based on the premise that mothers are very important for younger children due
to the special natural bond existing between them and due to the fact that young children are
often looked after by their mothers.

In the 1900s, another standard was developed through case laws in the common law countries,
especially in the U.S.A. This standard favors the mother as the primary care provider and it was
based on the significant place mothers have in the child’s mind due to their intimate interaction
and the special natural bond which exists between them.57 This standard differs from the initial
paternal predominance in feudal Europe because it prefers mothers by giving due consideration
to what is best for the child rather than paternal preference. In fact, the application of the best
interest standard is ‘gender neutral’, and it has currently won recognition in both the common
law as well as in the civil law systems, amongst which the U.K., U.S.A. and France may be
cited.58

55
Melina, M.B, Louisiana Family Law: The Visitation of the Non- Custodian Parent, (1994) vol. 59.p.489
56
Lenore J. Weitzman, The Divorce Revolution: The unexpected Social and Economic Consequence for
Women(1987) p. 219
57
Ibid 221
58
Ibid

18
 CHAPTER THREE

The Legal Incorporation of the Best Interest of the Child under international and regional
legal instruments

3.1. The Declaration of Geneva

The first international declaration, the Declaration of Geneva of 1924, is most limited in its
scope. In its Preamble it states that ‘mankind owes to the child the best it has to give. Its five
terse principles emphasize welfare: the requisite means for normal development; food and
medicine, help for the ‘backward’, rehabilitation of the delinquent; relief in times of distress; to
be put in a position to earn a livelihood and protection against exploitation; and socialization to
serve others.59 The principles, the fifth above all, reflected the consequences of an imperialist
war.60 It was an ‘aspirational document’.61

This Declaration significantly reflected the concerns related to the rights of children that
were grossly violated during WWI and its aftermath. The declaration emphasized children’s
material needs and proclaimed that children must have the requisite means for their formal
development. This included food for the hungry, nursing for the sick, due attention for the
handicapped and shelter and support-both physical and emotional- for the orphans.62 The phrase
“mankind owes to the child the best it has to give” clearly underlines our duties towards children,
and it entitles them for the best that mankind can give. This implies that the interest of the child
should be given primary consideration in actions involving children.

3.2. The Universal Declaration of Human Rights

In 1948 the Universal Declaration of Human Rights was adopted.63There are provisions in this
tailored to children. This instrument does not cover particular categories of persons, i.e. children,
women, and the like. It rather addresses human rights in general, to which everyone is entitled.

59
P.vermeen, The Right of Child and The Changing Image of Childhood(1992), Pp. 155-161
60
E. muller, Great Britain and The Declaration of Geneva V (1925) VI (7) The world’s Children(1925).p.116
61
D. marshall, The Construction of Children as un Object of International Relation (1999), p.51
61 The Geneva Declaration of Right of Child(1924) At.1,2 and 3
63
M.Mcdougal and H. Lass well, the customary law Status of the UDHR (nd) P. 67

19
Yet, we can interpret some generic provisions in the context of child rights. According to Article
25(1) of the UDHR, every one (including the child) is recognized to have the right to a standard
of living adequate for the health and well being of him/herself … including food, clothing,
housing and medical care and other necessary social services.64

Under the 2nd sub-article of the same provision, children are specifically addressed by the
UDHR when it says “motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social protection.” 65 This
entitles every person the socio-economic rights that are important for his/her life and wellbeing.
And in particular, children are entitled to get special care from the law and the society. For
example, Art. 26 of the UDHR embodies the human right to education. According to this
provision, everyone has the right to education and for the purpose of realizing this right,
education shall be free and especially elementary education is made compulsory. 66 Since
education is the instrument for the full development of the human personality, parents have the
right to choose the kind of education that shall be given to their children as per Sub-art 3 of the
same provision. This parental right is based on the presumption that there is no one who is in a
better position than parents to determine what is best for the child.

3.3. The Best Interest of the Child under the Convention on the Rights of the Child (CRC)
Articles 3 and 4

While child rights are set forth in a number of international legal instruments, the
Convention on the Rights of the Child1 (CRC) is the most authoritative international legal
instrument for the protection of children's human rights, with almost universal acceptance. The
CRC has highlighted the fundamental human dignity of all children, the urgency of ensuring
their protection, well-being, survival and development, and the concept of children as bearers of
human rights.67 According to Article 3(1) of the CRC, “in all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary consideration.”68

64
UDHR Art.25(1)
65
Ibid Art.25(2)
66
Ibid Art.26
67
UNHCR, Guideline on Formal Determination of the Best Interest of The Child .p.3
68
UNCRC, Supra note 4, Art.3

20
The principle thus requires active measures by all organs of the state, i.e. the executive, the
legislature and the judiciary. Every legislative, administrative and judicial body or institution is
required to apply the best interest’s principle by systematically considering how children’s rights
and interests are or will be affected by their decisions and actions. An example in this regard can
be a proposed or existing law or policy or administrative action or court decision, including those
which are not directly concerned with children, but indirectly affect children.69

In light of this provision of the Convention, the best interests of the child should be measured
against the compatibility or otherwise of any administrative, legislative or judicial measure not
only in taking the interests of the child into account, but also to give it a primary consideration. 70
The best interest of the child can only be achieved if state parties take certain actions towards the
realization of children’s rights. In this regard,

Article 4 of the Convention provides what state parties should do in order to achieve the rights
under the convention. It states that: “States Parties shall undertake all appropriate legislative,
administrative, and other measures for the implementation of the rights recognized in the present
Convention. With regard to economic, social and cultural rights, States Parties shall undertake
such measures to the maximum extent of their avail resources and, where needed, within the
framework of international cooperation.71

Article 3, paragraph 1, establishes a framework with three different types of obligations for
States parties:

The obligation to ensure that the child's best interests are appropriately integrated and
consistently applied in every action taken by a public institution, especially in all implementation
measures, administrative and judicial proceedings which directly or indirectly impact on
children;

The obligation to ensure that all judicial and administrative decisions as well as policies and
legislation concerning children demonstrate that the child's best interests have been a primary
consideration. This includes describing how the best interests have been examined and assessed,
and what weight has been ascribed to them in the decision.

69
Committee on the Right of the Child, General Comment, No 5/2003.
70
Ibid
71
CRC, Supra note 4, Art.4(1)

21
The obligation to ensure that the interests of the child have been assessed and taken as a primary
consideration in decisions and actions taken by the private sector, including those providing
services, or any other private entity or institution making decisions that concern or impact on a
child.72 Commenting on this article, the UN Committee on the Rights of the Child states: “[while
it is the State which takes on obligations under the

Convention, its task of implementation of making reality of the human rights of children - needs
to engage all sectors of society.”73 The Committee also makes it clear that the CRC contains
some children’s rights that are already covered by other human rights instruments, because
children are persons. It states that “many other articles, including articles 2, 3, 6, and 12 of the
Convention, contain elements which constitute civil/political rights, thus reflecting the
interdependence and indivisibility of all human rights. Enjoyment of economic, social, and
cultural rights is inextricably intertwined with enjoyment of civil and political rights.”74

The CRC does not offer a precise definition of the best interests of the child. While the term
“best interests” broadly describes the well-being of a child, it is not possible to give a conclusive
definition of what is in the best interests of the child, as this depends on a variety of individual
circumstances, such as the age and the level of maturity of the child, the presence or absence of
parents, the child’s environment, etc. The term “best interests” should, however, be interpreted
and applied in conjunction with the CRC and other international legal norms. It is important to
be aware that for certain specific actions, including adoption and separation from parents against
their will, the CRC requires that the best interests be the determining factor, whereas for other
actions it has to be a primary consideration, which does not exclude other considerations to be
taken into account. The exact wording of the CRC that refers to the term “best interests”.75

3.4. CRC General Comment on the Best Interest of the Child

The committee on the right of the child has published its general comment No 14 on the right of
the child to have his/ her best interest taken as a primary consideration (art.3).

The present general comment seeks to ensure the application of and respect for the best interest
of the child by the state parties to the convention. It define the requirement for due

72
ICCPR, Art23(4)
73
Ibid
74
UNCRC, Supra note 4
75
Ibid

22
consideration, especially in judicial and administrative decision as well as in other action
concerning the child as an individual, and at all stage of the adoption of laws, policies, strategies,
programs and all implementation measure concerning children in general or as a specific group.

3.4.1. Legal analysis of article 3, paragraph 11.

“In all actions concerning children”

A, “in all action

Article 3, paragraph 1 seeks to ensure that the right is guaranteed in all decisions and actions
concerning children. This means that every action relating to a child or children has to take into
account their best interests as a primary consideration.76 The word “action” does not only include
decisions, but also all acts, conduct, proposals, services, procedures and other measures. Inaction
or failure to take action and omissions are also “actions”, for example, when social welfare
authorities fail to take action to protect children from neglect or abuses”.77

(b) “Concerning

The legal duty applies to all decisions and actions that directly or indirectly affect children. Thus,
the term “concerning” refers first of all, to measures and decisions directly concerning a child,
children as a group or children in general, and secondly, to other measures that have an effect on
an individual child, children as a group or children in general, even if they are not the direct
targets of the measure. As stated in the Committee’s general comment No. 7 (2005), such actions
include those aimed at children (e.g. related to health, care or education), as well as actions
which include children and other population groups (e.g. related to the environment, housing or
transport) (Para. 13 (b)).

Therefore, “concerning” must be understood in a very broad sense. Indeed, all actions taken by a
State affect children in one way or another. This does not mean that every action taken by the
State needs to incorporate a full and formal process of assessing and determining the best
interest’s o the child. However, where a decision will have a major impact on a child or children,
a greater level of protection and detailed procedures to consider their best interests is appropriate.
Thus, in relation to measures that are not directly aimed at the child or children, the term

76
General Comment, Supra note 69
77
Ibid

23
“concerning” would need to be clarified in the light of the circumstances of each case in order to
be able to appreciate the impact of the action on the child or children.78

(C), public or private social welfare institutions”

These terms should not be narrowly construed or limited to social institutions strict sensu, but
should be understood to mean all institutions whose work and decisions impact on children and
the realization of their rights. Such institutions include not only those related to economic, social
and cultural rights (e.g. care, health, environment, education, business, leisure and play, etc.), but
also institutions dealing with civil rights and freedoms (e.g. birth registration, protection against
violence in all settings, etc.). Private social welfare institutions include private sector
organizations – either for-profit or non-profit – which play a role in the provision of services that
are critical to children’s enjoyment of their rights, and which act on behalf of or alongside
Government services as an alternative.79

(D) “Courts of law”

The Committee underlines that “courts” refer to all judicial proceedings, in all instances whether
staffed by professional judges or lay persons – and all relevant procedures concerning children,
without restriction. This includes conciliation, mediation and arbitration processes. In criminal
cases, the best interest’s principle applies to children in conflict (i.e. alleged, accused or
recognized as having infringed) or in contact (as victims or witnesses) with the law, as well as
children affected by the situation of their parents in conflict with the law. The Committee5
underlines that protecting the child's best interests means that the traditional objectives of
criminal justice, such as repression or retribution, must give way to rehabilitation and restorative
justice objectives, when dealing with child offenders.80

In civil cases, the child may be defending his or her interests directly or through a representative,
in the case of paternity, child abuse or neglect, family reunification, accommodation, etc. The
child may be affected by the trial, for example in procedures concerning adoption or divorce,
decisions regarding custody, residence, contact or other issues which have an important impact
on the life and development of the child, as well as child abuse or neglect proceedings. The

78
Ibid
79
Ibid
80
Ibid

24
courts must provide for the best interests of the child to be considered in all such situations and
decisions, whether of a procedural or substantive nature, and must demonstrate that they have
effectively done so.81

(E) “Administrative authorities”

The Committee emphasizes that the scope of decisions made by administrative authorities at all
levels is very broad, covering decisions concerning education, care, health, the environment,
living conditions, protection, asylum, immigration, access to nationality, among others.
Individual decisions taken by administrative authorities in these areas must be assessed and
guided by the best interests of the child, as for all implementation measures.82

(F) “Legislative bodies”

The extension of States parties’ obligation to their “legislative bodies” shows clearly that article
3, paragraph 1, relates to children in general, not only to children as individuals. The adoption of
any law or regulation as well as collective agreements – such as bilateral or multilateral trade or
peace treaties which affect children – should be governed by the best interests of the child. The
right of the child to have his or her best interests assessed and taken as a primary consideration
should be explicitly included in all relevant legislation, not only in laws that specifically concern
children. This obligation extends also to the approval of budgets, the preparation and
development of which require the adoption of a best interests-of-the-child perspective for it to be
child-rights sensitive.83

(G) “The best interests of the child”

The concept of the child's best interests is complex and its content must be determined on a case-
by-case basis. It is through the interpretation and implementation of article 3, paragraph 1, in line
with the other provisions of the Convention, that the legislator, judge, administrative, social or
educational authority will be able to clarify the concept and make concrete use thereof.
Accordingly, the concept of the child’s best interests is flexible and adaptable. It should be
adjusted and defined on an individual basis, according to the specific situation of the child or
children concerned, taking into consideration their personal context, situation and needs. For

81
Ibid
82
Ibid
83
Ibid

25
individual decisions, the child's best interests must be assessed and determined in light of the
specific circumstances of the particular child. For collective decisions – such as by the legislator
the best interests of children in general must be assessed and determined in light of the
circumstances of the particular group and/or children in general.

In both cases, assessment and determination should be carried out with full respect for the rights
contained in the Convention and its Optional Protocols. The child's best interests shall be applied
to all matters concerning the child or children, and taken into account to resolve any possible
conflicts among the rights enshrined in the Convention or other human rights treaties.

Attention must be placed on identifying possible solutions which are in the child's best interests.
This implies that States are under the obligation to clarify the best interests of all children,
including those in vulnerable situations, when adopting implementation measures. The flexibility
of the concept of the child’s best interests allows it to be responsive to the situation of individual
children and to evolve knowledge about child development.

However, it may also leave room for manipulation; the concept of the child’s best interests has
been abused by Governments and other State authorities to justify racist policies, for example; by
parents to defend their own interests in custody disputes; by professionals who could not be
bothered, and who dismiss the assessment of the child’s best interests as irrelevant or
unimportant.84

(H) “Shall be a primary consideration”

The best interests of a child shall be a primary consideration in the adoption of all measures of
implementation. The words “shall be” place a strong legal obligation on States and mean that
States may not exercise discretion as to whether children’s best interests are to be assessed and
ascribed the proper weight as a primary consideration in any action undertaken.

The expression “primary consideration” means that the child’s best interests may not be
considered on the same level as all other considerations. This strong position is justified by the
special situation of the child: dependency, maturity, legal status and, often, voiceless. Children
have less possibility than adults to make a strong case for their own interests and those involved

84
Ibid

26
in decisions affecting them must be explicitly aware of their interests. If the interests of children
are not highlighted, they tend to be overlooked.

In respect of adoption (art. 21), the right of best interests is further strengthened; it is not simply
to be “a primary consideration However, since article 3, paragraph 1, covers a wide range of
situations, the Committee recognizes the need for a degree of flexibility in its application. The
best interests of the child – once assessed and determined – might conflict with other interests or
rights (e.g. of other children, the public, parents, etc.). Potential conflicts between the best
interests of a child, considered individually, and those of a group of children or children in
general have to be resolved on a case-by-case basis, carefully balancing the interests of all parties
and finding a suitable compromise. The same must be done if the rights of other persons are in
conflict with the child’s best interests. If harmonization is not possible, authorities and decision-
makers will have to analyze and weigh the rights of all those concerned, bearing in mind that the
right of the child to have his or her best interests taken as a primary consideration means that the
child's interests have high priority and not just one of several considerations. Therefore, a larger
weight must be attached to what serves the child best.

Viewing the best interests of the child as “primary” requires a consciousness about the place that
children’s interests must occupy in all actions and a willingness to give priority to those interests
in all circumstances, but especially when an action has an undeniable impact on the children
concerned.85

(I)Best interests assessment and determination

Assessing the child’s best interests is a unique activity that should be undertaken in each
individual case, in the light of the specific circumstances of each child or group of children or
children in general. These circumstances relate to the individual characteristics of the child or
children concerned, such as, inter alia, age, sex, level of maturity, experience, belonging to a
minority group, having a physical, sensory or intellectual disability, as well as the social and
cultural context in which the child or children find themselves, such as the presence or absence
of parents, whether the child lives with them, quality of the relationships between the child and
his or her family or caregivers, the environment in relation to safety, the existence of quality
alternative means available to the family, extended family or caregivers, etc

85
Ibid

27
Determining what is in the best interests of the child should start with an assessment of the
specific circumstances that make the child unique. This implies that some elements will be used
and others will not, and also influences how they will be weighed against each other. For
children in general, assessing best interests involves the same elements.

The Committee considers it useful to draw up a non-exhaustive and non-hierarchical list of

elements that could be included in a best-interests assessment by any decision-maker having to
determine a child's best interests. The non-exhaustive nature of the elements in the list implies
that it is possible to go beyond those and consider other factors relevant in the specific
circumstances of the individual child or group of children. All the elements of the list must be
taken into consideration and balanced in light of each situation. The list should provide concrete
guidance, yet flexibility.

Drawing up such a list of elements would provide guidance for the State or decision maker in
regulating specific areas affecting children, such as family, adoption and juvenile justice laws,
and if necessary, other elements deemed appropriate in accordance with its legal tradition may be
added. The Committee would like to point out that, when adding elements to the list, the ultimate
purpose of the child's best interests should be to ensure the full and effective enjoyment of the
rights recognized in the Convention and the holistic development of the child. Consequently,
elements that are contrary to the rights enshrined in the Convention or that would have an effect
contrary to the rights under the Convention cannot be considered as valid in assessing what is
best for a child or children.86

3.4.2. Elements to be taken into Account when assessing the Child's Best Interests

(a)The Child's Views

Article 12 of the Convention provides for the right of children to express their views in every
decision that affects them. Any decision that does not take into account the child’s views or does
not give their views due weight according to their age and maturity, does not respect the
possibility for the child or children to influence the determination of their best interests.. The fact
that the child is very young or in a vulnerable situation (e.g. has a disability, belongs to a

86
Ibid

28
minority group, is a migrant, etc.) does not deprive him or her of the right to express his or her
views, nor reduces the weight given to the child’s views in determining his or her best interests.

(b) The Child's Identity

Children are not a homogeneous group and therefore diversity must be taken into account when
assessing their best interests. The identity of the child includes characteristics such as sex, sexual
orientation, national origin, religion and beliefs, cultural identity, personality. Although children
and young people share basic universal needs, the expression of those needs depends on a wide
range of personal, physical, social and cultural aspects, including their evolving capacities. The
right of the child to preserve his or her identity is guaranteed by the Convention (art. 8) and must
be respected and taken into consideration in the assessment of the child's best interests.

Regarding religious and cultural identity, for example, when considering a foster home or
placement for a child, due regard shall be paid to the desirability of continuity in a child’s
upbringing and to the child’s ethnic, religious, cultural and linguistic background (art. 20,
para.3), and the decision-maker must take into consideration this specific context when assessing
and determining the child's best interests.87

(c) Care, Protection and Safety of the Child

The terms “protection and care” must also be read in a broad sense, since their objective is not
stated in limited or negative terms (such as “to protect the child from harm”), but rather in
relation to the comprehensive ideal of ensuring the child’s “well-being” and development.
Children’s well-being, in a broad sense includes their basic material, physical, educational, and
emotional needs, as well as needs for affection and safety.

Emotional care is a basic need of children; if parents or other primary caregivers do not fulfill the
child’s emotional needs, action must be taken so that the child develops a secure attachment.
Children need to form an attachment to a caregiver at a very early age, and such attachment, if
adequate, must be sustained over time in order to provide the child with a stable environment.

Assessment of the child's best interests must also include consideration of the child’s safety, that
is, the right of the child to protection against all forms of physical or mental violence, injury or
abuse (art. 19), sexual harassment, peer pressure, bullying, degrading treatment, etc.,14 as well

87
Ibid

29
as protection against sexual, economic and other exploitation, drugs, labor, armed conflict,
etc.(arts. 32-39). Applying a best-interests approach to decision-making means assessing the
safety and integrity of the child at the current time; however, the precautionary principle also
requires assessing the possibility of future risk and harm and other consequences of the decision
for the child’s safety.

(D)The Child’s Right to Health

The child’s right to health (art. 24) and his or her health condition are central in assessing the
child’s best interest. However, if there is more than one possible treatment for a health condition
or if the outcome of a treatment is uncertain, the advantages of all possible treatments must be
weighed against all possible risks and side effects, and the views of the child must also be given
due weight based on his or her age and maturity. In this respect, children should be provided
with adequate and appropriate information in order to understand the situation and all the
relevant aspects in relation to their interests, and be allowed, when possible, to give their consent
in an informed manner.88

(E)The Child’s Right to Education

It is in the best interests of the child to have access to quality education, including early
childhood education, non-formal or informal education and related activities, free of charge. All
decisions on measures and actions concerning a specific child or a group of children must respect
the best interests of the child or children, with regard to education. In order to promote
education, or better quality education, for more children, States parties need to have well-trained
teachers and other professionals working in different education related settings, as well as a
child-friendly environment and appropriate teaching and learning methods, taking into
consideration that education is not only an investment in the future, but also an opportunity for
joyful activities, respect, participation and fulfillment of ambitions. Responding to this
requirement and enhancing children’s responsibilities to overcome the limitations of their
vulnerability of any kind, will be in their best interests.

88
Ibid

30
3.4.3. Balancing the Elements in the Best-Interests Assessment

It should be emphasized that the basic best-interests assessment is a general assessment of all
relevant elements of the child’s best interests, the weight of each element depending on the
others. Not all the elements will be relevant to every case, and different elements can be used in
different ways in different cases. The content of each element will necessarily vary from child to
child and from case to case, depending on the type of decision and the concrete circumstances, as
will the importance of each element in the overall assessment.

The elements in the best-interests assessment may be in conflict when considering a specific case
and its circumstances. For example, preservation of the family environment may conflict with
the need to protect the child from the risk of violence or abuse by parents. In such situations, the
elements will have to be weighed against each other in order to find the solution that is in the
best interests of the child or children.

In weighing the various elements, one needs to bear in mind that the purpose of assessing and
determining the best interests of the child is to ensure the full and effective enjoyment of the
rights recognized in the Convention and its Optional Protocols, and the holistic development of
the child. In the best-interests assessment, one has to consider that the capacities of the child will
evolve.

Decision-makers should therefore consider measures that can be revised or adjusted accordingly,
instead of making definitive and irreversible decisions. To do this, they should not only assess
the physical, emotional, educational and other needs at the specific moment of the decision, but
should also consider the possible scenarios of the child’s development, and analyse them in the
short and long term. In this context, decisions should assess continuity and stability of the child’s
present and future situation.89

3.5. The Best Interest of the Child under Regional Legal Instrument

3.5.1. The Best Interest of the Child and the African Charter on the Rights and Welfare of
the Child (ACRW)

The African Charter on the Rights and Welfare of the Child was adopted by the then
Organization of African Unity (now African Union) on July 11, 1990. The Charter entered into

89
Ibid

31
force on November 29, 1999. The Charter incorporates the best interest of the child as a principle
to be employed in deciding any issues that involve the rights of the child.

According to Article 4(1), “[I]n all actions concerning the child undertaken by any person or
authority the best interests of the child shall be the primary consideration.”90 It should also be
noted that Article 4(1) extends to all actions by ‘any person so that parents are included. This is
wider than Article 3(1) of the UNCRC. In other ways also the ACRWC is wider than the
UNCRC. The basic reasons that necessitated a separate charter on the rights and welfare of the
African child include the need for a “more elaborate” legal regime that can provide “better
protection to the African child” and the need for “an African touch to the overall concept of child
rights.91 However, as can be seen easily from the UNCRC and the African Charter, the latter is
silent on certain issues such as the obligation of states stipulated under Article 3(3) of the
Convention on the Rights of the Child which provides:

State parties shall ensure that the institutions, services and facilities responsible for the care and
protection of children shall conform with the standards established by competent authorities,
particularly in the areas of safety, health, in the number and suitability of their staff, as well as
competent supervision.92

The African Charter on the Rights and Welfare of the Child of 1999, in addition to the above
mentioned points, also deviates from the UNCRC in many respects, such as the age of
conscription into the army. Article 22(2) of the Charter prohibits any act of recruitment of a child
to an armed conflict, while Articles 38(2) and 38(3) of the UNCRC allow the participation of
children aged 15 to take part in armed hostilities. Article 23(4) of the African Charter is also
more advanced in the protection of internally displaced children, while the CRC has no provision
which deals with this issue. In a nutshell, the principle of the best interest of the child is a well
established principle under international and regional laws.

90
ACRWC (1990)Supra note 5, Art.4(1)
91
Tilahun Teshome, the African Charter on The Right and Welfare of The Child, (1999) Unpublished.p.8
92
Ibid

32
3.6. Experience of other Countries

Courts make a variety of decisions that affect children, including placement and custody
determinations, safety and permanency planning, and proceedings for termination of parental
rights. Whenever a court makes such a determination, it must weigh whether its decision will be
in the “best interests” of the child.93

3.6.1. Florida

For the purpose of determining the manifest best interests of the child, the court shall consider
and evaluate all relevant factors, including, but not limited to:94

 Any suitable permanent custody arrangement with a relative of the child.

 The ability and disposition of the parents to provide the child with food, clothing, medical
care, other remedial care, and other material needs of the child.
 The capacity of the parents to care for the child to the extent that the child's safety; well-
being; and physical, mental, and emotional health will not be endangered upon the child's
return home.
 The present mental and physical health needs of the child and such future needs of the
child to the extent that such future needs can be ascertained based on the present
condition of the child.
 The love, affection, and other emotional ties existing between the child and the child's
parents, siblings, and other relatives, and the degree of harm to the child that would arise
from the termination of parental rights and duties.
 The likelihood of an older child remaining in long-term foster care upon termination of
parental rights due to emotional or behavioral problems or any special needs of the child.
 The child's ability to form a significant relationship with a parental substitute and the
likelihood that the child will enter into a more stable and permanent family relationship
as a result of permanent termination of parental rights and duties.
 The length of time that the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity.
 The depth of the relationship existing between the child and the present custodian.

93
https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/, accessed on October 21,
2017.
94
Ibid

33
  The reasonable preferences and wishes of the child, if the court deems the child to be of
sufficient intelligence, understanding, and experience to express a preference.
 The recommendations for the child provided by the child's guardian or legal
representative.

3.6.2. HONG KONG

There are certain key factors to which the courts have regard to determine the best interest of the
child. These include:95

 The wishes and rights of the child (considered in relation to his age and level of
understanding).
 The child's physical, emotional and educational needs.
 Te desirability of maintaining continuity of care for the child and the likely effect on him
of any change in circumstances.
 The child's age, sex, background and particular personal characteristics.
 Any harm that he has suffered or is at risk of suffering; and
 The capacity of each parent, or relevant third party, to care for the child and to meet his
needs.

All of the factors above are taken into account by the court in determining what constitutes
the best interests of the child. The best interest of the child is to be "the first and paramount
consideration" of the court in hearing any Proceedings. As each case turns upon its own unique
facts, judicial precedent can play only a minor role in decision-making in this area. The courts
therefore have very wide discretion in determining what is in the best interests of the child.96

3.6.3. The best interest of the child in the Namibian context

Approximately 60 per cent of people in Namibia are under the age of 25. Nearly 40 per cent of
the populations are under the age of 15. The fact that children make up such a large proportion of

95
The Law Reform Commission of Hong Kong, http://www.hkreform.gov.hk, accessed on October 21, 2017
96
Ibid

34
the population is reason enough to support the need for robust legislation on the care and
protection of children.97

The Namibian Constitution is the supreme law of the country, and provides for the protection
and promotion of a wide array of human rights. This supremacy then also means that any law or
conduct inconsistent with the provisions of the Constitution will be invalid. Children’s rights are
provided for in terms of Article 15(1). However, there is no such explicit provision in the
Namibian Constitution which specifically provides that “A child’s best interest is of paramount
importance in every matter concerning the child”. Instead, the supreme law of leaves this task to
the legislator. This is problematic because, as the supreme law, the Constitution ought to be the
guiding document.

Legislators are supposed to seek guidance from the Constitution when drafting laws that will
affect the rights of children. For example, in the Married Persons’ Equality Act, it is not clear on
what basis custody and control of minor children are granted. Whilst the courts would probably
refer to jurisprudence on the subject to make a determination, the law ought to be self-sufficient
enough to ensure there is no prejudice to the beneficiaries of such law.

Despite the earlier lament that the principle of serving the best interest of the child is obviously
absent in the highest law of the land, it does not mean the inclusion of the principle in other laws
of general application is insufficient.98 Moreover, the comprehensive nature of the envisaged
Child Care and Protection Act can possibly fill any lacunae that exist. Giving effect to the
principle in question is further supported by Namibia’s obligations under international and
regional instruments. So, in the event that domestic law – including a country’s Constitution –
does not adequately protect the rights of the child, the safeguards provided by, for instance, the
Convention on the Rights of the Child should be sought.99

In addition to the above listed countries

97
Yvonne Dausab, The best interest of the child, (2009), p. 1
98
Ibid, 152
99
ibid

35
36
 CHAPTER FOUR

The Best Interest of the Child under Ethiopian Laws

Ethiopia is a federal state comprising nine regional states, and two cities directly accountable to
the federal government. Pursuant to article 50(2) of the Constitution, “The Federal Government
and the States shall have legislative, executive and judicial powers.” The constitution has also
clearly divided the power between the three organs of the state at the federal level and between
the federal government and the states. Adopted after the overthrow of the communist regime, the
Ethiopian Constitution incorporates fundamental human rights. Subsequently, Ethiopia has
acceded to and/or ratified many international human rights treaties.

The Convention on the Rights of the Child (CRC) and the African Charter on the Rights and
Welfare of the Child (ACRWC) are among the ratified treaties. To make the existing laws
compatible with the commitments entered into through these treaties, Ethiopia has revised many
of its existing laws dealing with children subsequent to the ratifications. For example, the revised
family code, criminal code, and labor code. now include provisions intended to protect and
promote child rights.100

4.1. The Constitutional Regime of Child Rights in Ethiopia

There was no mention of child rights in the 1931 Constitution, and the whole concept of human
rights was given a very minimal recognition. There was no clear provision in the Constitution
which provided institutional guarantees for the realization of the few rights that were
recognized.101 Moreover, the 1955 Revised Constitution did not address the issue of child rights
in general and the best interest of the child in particular. However, there was a provision which
recognized the need to accord special protection to the family as the source of the maintenance
and development of the Empire and as the primary base for education and social harmony.102

The 1974 Draft Constitution incorporated some provisions on the rights of the child such as non-
discrimination of children born in or out of wedlock with respect of rights and duties, prohibition
of child labor, and parental obligation to get their children at least a primary education. Although

100
Ashagrie, supra note 8, p.1
101
Ibid
102
Ibid

37
the Draft Constitution seemed relatively modern compared to its predecessors, it still lacked a
specific provision concerning the detailed rights of a child in every aspect of life. Yet, Article
120 of the Draft Constitution had entrusted the Imperial Supreme Court with the power to
interpret the constitution. This would have indeed given regular courts the power to interpret and
elaborate the provisions (on some aspects of child rights) and develop the trend of protecting the
interests of the child. The PDRE (People’s Democratic Republic of Ethiopia) Constitution of
1987 only provided for the non-discrimination principle of children born in or out of wedlock
and compulsory primary education to children. No other mention was made concerning the rights
of children. With respect to the charter of the Transitional Government of Ethiopia (TGE) of
1991, it gave the UDHR of 1948 a general effect of application in Ethiopia in its fullest sense.
However, it did not mention or further elaborate the rights and freedoms of individuals
(including the child) except freedom of expression, freedom of association and the right of
nations, nationalities and peoples to self determination. 103

Unlike the preceding, the current FDRE Constitution expressly devotes an article for the rights of
children. This constitutional provision not only recognizes and protects the various aspects of
child rights, but it also adopts the doctrine of the best interest of the child from the 1989
Convention on the Rights of the Child and from the African Charter on the Rights and Welfare
of the Child. The ‘bill of rights’ chapter of the FDRE Constitution lists fundamental rights and
freedoms that apply to ‘all persons’, age or other statuses notwithstanding; likewise an array of
rights specifically designed to ensure the protection and welfare of children are provided.

A very remarkable clause in the constitutional organization - informing the normative scope of
the best interest of the child principle - is also that ‘substantively’ the application of fundamental
rights specified in chapter III of the Constitution shall be tuned to higher standards (of child
rights) prescribed under the Universal Declaration of Human Rights and international human
rights covenants adopted by Ethiopia More importantly, Art.36.2 of the Constitution explicitly
provided for the ‘best interest of the child’, dictating that the principle shall be the ‘primary
consideration’ in all actions concerning children by public or private welfare institutions, courts
of law, administrative authorities and legislative bodies. This constitutional prescription is
replicated in several policy and legal frameworks, sometimes plainly and in other cases only

103
Gebrehiwot Aregay, Guardianship and Custody of Children Before and After Modern Code (1966)
Unpublished. p.11

38
indirectly, further providing a guideline for decisions and actions by the judiciary whenever
circumstances so warrant. The Constitution serves as overarching socio-political and legal
instrument - instructing future directions in child-related policy, legal developments and judicial
activism.

4.2. The Civil Code of the Empire of Ethiopia 1960

Before the enactment of Ethiopia’s 1960 Civil Code, there were two general patterns of child
custody in various parts of the country. The first was that the father was considered to have a
natural right to the custody of his children after divorce. Secondly, children may be entrusted to
their mothers depending on their ages. Children under the age of three were entrusted to their
mothers. On the other hand, children above the age of seven were presumed to have attained the
age of discernment and could be allowed to be with their mothers if this option becomes their
choice.104

The 1960 Civil Code embodies the principle of the best interest of the child as its guiding
principle in determining cases of custody, guardianship, adoption and maintenance of children.
As will be discussed later, this principle is also affirmed in the Revised Family Code and the
family codes of regional states. The Ethiopian Civil Code incorporates a spectrum of stipulations
that may make up the idea of “the best interest of the child”. Article 2 of the Civil Code
considers a merely conceived child as born when his/her interest so demands. Accordingly, a
conceived child will be considered as born where, inter alia, the interest of a conceived child is
at stake.105 Although they have now been repealed and substituted by revised family codes, the
provisions of the Civil Code that deal with the custody of children in post-divorce decisions of
the court stipulate that the child shall stay with his/her mother until the age of five unless there is
serious reason for deciding otherwise. Moreover, Article 805 of the Code clearly states that
adoption may take place only if there is good reason, which takes the child’s benefits into
account.

In the realm of successions,106 Article 842 of the Civil Code renders children of the deceased the
first intestate successors and there are provisions that annul the will of a testator if a descendant

104
Ibid
105
Ibid
106
Art.904(1) of Civil Code of the Empire of Ethiopia

39
is born after the making of the will (and where the descendant accepts the succession). 107 These
laws of succession promote the best interest of the child. Moreover, the Civil Code does not
allow a testator to disinherit a child or other descendant without stating (in his will) “the reason
that justifies the disherison”. Even though the reason stated is assumed to be correct, the court
shall ascertain whether the reason stated by the testator “justifies the disherison”. Ethiopia’s Civil
Code further stipulates that the succession shall remain in common between the heirs where the
manner of making the partition depends on the condition of the birth of a child who is merely
conceived. The Code also protects the best interest of the child in the realm of contracts.
Contracts concluded with minors are voidable and they can be invalidated if the minor or his/her
submit the application for invalidation within the prescribed limit of time.”108

4.3. The Federal Revised Family Code of Ethiopia 2000

The 2000 Revised Family Code has replaced the provisions of the Civil Code concerning
family matters and other related issues. Unlike the Civil Code, which entrusts the child to the
custody of his/her mother until the age of five, Article 113 of the Revised Family Code entitles
the court to decide on the custody of children. The court shall decide the custody of the child by
taking into consideration the best interest of the child. However, the court may reverse or revise
its decision as it thinks fit due to the change of circumstances on the custody situation of the
child.109

However, the revised family code of Ethiopia has its own gaps on the child custody matter,
Custody law in Ethiopia it is bases and major guideline under art.113 of the revised family
code.110 The matter of custody shall be considered and decided by the court taking in to account
the best interest of the child. This is apparent in the guide line for deciding and custody
according to the various international and regional human right instrument, like CRC art.3,
African charter (ACRWC) art. 4 and the FDRE Constitution art.36 (2) the best interest of the
child should be a primary concern.

Despite this fact, the federal revised family code gives a little place in this regard. There is only
one provision in the revised family code that deals with child custody matter and this provision

107
Ibid Art.938
108
Ibid Art.808(1)
109
Art 113, of the Revised Family code of Ethiopia
110
Ibid

40
also is very general one. Even though this article is an improvement from the previous law,
leaving custody matters to the court instead of family arbitrators, who could easily get biased by
family or friendship ties, it lacks effectiveness in other aspects.

The revised family code of Ethiopia, lays too much burden on the courts, because now it is the
duty of the courts to ascertain the income, age, living conditions of the spouses concerned. This
wide range of duties takes up the time and man power especially of an office of government that
would have hundreds of similar cases pending. Decisions could, therefore, be very much
delayed. And since the courts are distanced third parties to such dispute, their lack of deep
knowledge makes it easy for any one of such spouses to conceal information like ones monetary
or health status or underlying abusive behaviors. Due to such barrier the court may take a
wrong position in giving in giving child custody decision.111

Under such instances, a group of arbitration could have provided a neutral more detailed and
firsthand look of the existent situation and this would have helped but the law makes no such
provision. It also open a door for residing judges to interpret this provision based on their
perception or in a way without take in to the best interest of the child. In addition, the provision
of the revised family code does not contain exhaustive list factor for courts to consider in
making determining regarding the best interest of the child is another problem of the provision. It
let the judge freely to determine what is best for the child and as a result the decision we be
biased.

4.4. Cassation decision

W/ro Tsedale Demissie Vs Ato Kifle Demissie

Woreda Court of Bonga

File no. 23632

In W/t Tsedale Demissie vs Ato Kifle Demisse, File no.23632, A Woreda Court in Bonga Area of
Kafa Zone of Southern, Nations, Nationalities and Peoples Regional State (SNNPRS) declared
Ato Kifle Demisse, the guardian and tutor of his son Binyam Kifle according to Article 235(1) of
the Family Code of the Regional State.

111
Fikadu Asfaw, a Brief Note on the Provision of Ethiopian Legal System Governing Child Custody (2010).

41
The paternal aunt of the minor, W/t Tsedale Demissie, submitted an opposition pursuant to
Article 358 of the Civil Procedure contending that the father should not be declared as the
guardian and tutor for the child as the former has failed to care and protect the child and did not
provide him assistance. She went on to state that the father is merely motivated by the financial
gain and property he would derive by his status as tutor and guardian of the child and not in the
best interests of the child. She prayed that she is entitled to be guardian and tutor of the child as
she is the one who has been nursing and caring for the child for 12 years.

However, the Court rejected her plea arguing that tutorship and guardianship cannot be awarded
for an aunt while the father is alive. The Court relied upon the Family Code of the Regional State
particularly, Article 235(1) of the Code, does not allow the aunt to be granted custody of the
child while the father of the child is still alive. She took appeal from the decision of the Woreda
Court arguing that the father should not be granted the guardianship after failing to ensure the
upbringing of the child for about 12 years. She further claimed that the father did not provide for
the education, life, survival and development of the child in the past. She submitted that the
father applied to be considered as the tutor and the guardian following the death of the mother.
She alleged that the father cannot be a responsible guardian and tutor for the child given his past
antecedents and unworthiness.

Nevertheless, the High Court of Kafa Zone also rejected her appeal on the very same grounds
invoked by the Woreda Court. Similarly, the Cassation Bench of the Supreme Court of Southern
Nations, Nationalities and Peoples Regional State quashed the application of the aunt alleging
the existence of a fundamental error of law committed by the two courts at the lower tiers. The
matter was then submitted to the Cassation Bench of the Federal Supreme Court in March

2006 by the petitioner, W/t Tsedale Demissie. The Cassation Bench summoned the respondent,
Ato Kifle Demisse, who, however, did not appear thereby waiving his right to rebut the
arguments of the petitioner. In this decision the court invoked Article 36(2) of the FDRE
Constitution which provides that the best interests of the child shall be the primary consideration
in deciding all matters concerning the child. The Court went on to state that Article 3 of the
Convention on the Rights of the Child which has been ratified by the country and therefore is
part and parcel of the law of the land by virtue of Article 9 of the FDRE Constitution requires
that the best interests of the child to be the primary consideration in deciding all matters

42
concerning children. The Cassation Bench quashed the decision of the lower courts since it runs
counter to the doctrine of the best interests of the child enshrined in the FDRE Constitution and
the Convention on the Rights of the Child and awarded guardianship and tutorship of the child to
the petitioner.112

112
Tsedale Demisse vs. Kifle Demisse (Federal Supreme Court Cassation Division) Cassation File No. 23632,
Tikimit 26/2000 (6th November 2007 G.C (Unpublished)

43
 CHAPTER FIVE

The Current Practice of Dire Dawa First Instance court on the interpretation of the best
interest of the child in custody issue

5.1. The practice of the court and findings of the researcher

The researcher objectives were to investigate: to identify the position of Ethiopian Family law
with regard to the principle best interest of the child; to identify legal gaps in implementing the
best interest of the child principle by the judiciary in custody matter; to investigate factors taken
in to account by Dire Dawa Federal First instance court in deciding child custody matter; to
ascertain whether the best interest of the child is taken in to consideration while deciding on
child custody in Federal first instance court Dire Dawa bench. In this regard, the researcher
findings are discussed below.
Regarding the position of Ethiopian Family law with regard to the principle best interest of the
child the researcher was tries to discuss under chapter four of this study.

Regarding the legal gaps, the researcher come up with the following finding, the federal revised
family code gives a little place. There is only one provision in the revised family code that deals
with child custody matter and this provision also is very general one. Even though this article is
an improvement from the previous law, leaving custody matters to the court instead of family
arbitrators, who could easily get biased by family or friendship ties, it lacks effectiveness in other
aspects.

The revised family code of Ethiopia, lays too much burden on the courts, because now it is the
duty of the courts to ascertain the income, age, living conditions of the spouses concerned. This
wide range of duties takes up the time and man power especially of an office of government that
would have hundreds of similar cases pending. Decisions could, therefore, be very much
delayed. And since the courts are distanced third parties to such dispute, their lack of deep
knowledge makes it easy for any one of such spouses to conceal information like ones monetary
or health status or underlying abusive behaviors. Due to such barrier the court may take a wrong
position in giving child custody decision. However, giving a broad description, to determine the
best interest of the child, to the court is proper because most of the time parents give priority for
their own interest by disregarding the interest of their children’s. A for instance court have a
description to decide on issue of maintenance but, if doing this is not a desecration of the court

44
and given to the parents, the best interest of the child will be at stake because through time the
parents may stop and does not discharge their obligation to give maintenance. Therefore, to
avoid such kinds of problem it is appropriate to give a wide description to the court.113

There is also another legal gaps regarding the age where a child can be regarded as capable
expressing an independent opinion. Since there is no any stipulation by the revised family code
which shows regarding the age where a child can be regarded as capable expressing an
independent opinion, judges used their own perception ,skill and experience to determine at
what age the child are capable to express their opinion. Due to this legal gap, the right of the
child to express their opinion is adversely affected. And also their best interest is not secured.

One of the researcher objectives is to investigate factors taken in to account by Dire Dawa
Federal First Instance court in determining the best interest of the child. In this regard, we will
see those factors mentioned by both the judge and social worker expert as follow;-

i. Factors mentioned by the judge;-114

a. Behavior of the parent

As the researcher was interviewing the Judge, the most significant thing that the court takes into
account when it comes to issues of custody of the child is the behavior of the parent. Behavior is
considered vital by the parents because of their responsibility for bringing up their children.
Since they both want their children to grow up in good hands, with good behavior, well taken
care of and loved, their behavior becomes important for the welfare of their children. Hence, the
behavior of the parent is a vital issue in custody when the judge implements the principle of the
best interests of the child.

b. financial situation of the parent

The financial situation of the parent as another factor that courts considers in
awarding custody of the child

c. Preference of the child

d. Parents due care and time for the child
e. The suitability of the place where the parents provide for the Childs.

113
Interview with Demeke Mekonin, Judge of Dire Dawa First Instance Court, (Dire Dawa, 21 September, 2017)
114
Ibid

45
 f. And other factors which are take in to consideration by the social worker.

ii. Factors listed by social worker expert;-115

1. Age of a child

2. Financial capacity of the parents to provide the child with food, clothing, medical care,
and other material needs

3. The capacity of the parents to give the child love

4. Behavior of the parents

5. The mental and Physical health of the parents

6. The preference of the child

7. Is there something bad committed by a parents on a child and is there a continuing dread
of harm to the child?

8. The child’s sibling relationships

9. Drug or alcohol addiction of a parnts

The criteria to assess the presumably best custodian of the children’s are;-116

 Questioners
 Interview
 Observation( school and home observation)

False information by one parent on the other and bad parenting styles, for instance the spouses
economically may depend on each other and refuse to pay a maintenance, are challenges faced
while the social workers performing their work in relation to child custody issues. And the
mechanism which are employed to identify whether Childs preference was affected by parental
pressure or not is by strengthening the attachment with the children’s or by treating them as a
friend because so long as they are a children they will forget, through time, what they told by
their parents.117

115
Interview with Rahel Balcha, social worker in Dire Dawa first instance court, (Dire Dawa, 21 September, 2017)
116
Ibid
117
Ibid

46
The other research question was how Judges & experts (social workers) involved in the
determination the child’s best interest? The following is the researcher finding;-
Often custody issues are too complicated to be resolved in a quick temporary orders hearing. It is
not easy for the courts to determine the best interests of the child. There should be social workers
who may investigate the home surroundings of the parties. Depending on the evidence of the
parties only is not good. This helps the judge to determine what is best for the child. A judge
who hears about a complicated situation may very well conclude that he or she does not have the
information needed to make a custody or visitation decision. At this point, a judge may appoint a
neutral person to investigate and/or evaluate the situation and present a report on all factors that
might affect the child’s best interest. The judge will then use this report to help him or her make
a custody decision.

The task social worker where the court needs his or her advice is to pay home visits and
investigate the lives of the parents with their children. The expert can also ask the children with
whom they want to live between their parents. The social worker also produces a report before
the court on the mentioned issues. It is therefore upon the court whether to follow or not to
follow the advice of the expert because the officer also recommends the court as to who should
be granted custody of the child. Most of the cases are decided by following the advice of the
experts but this is not always, there are some cases on which the decision is rendered against the
advice of the expert.118

The social workers do not start the investigation by their initiation unless they commanded by
the judge.119 And also the information obtained from the social workers is not conclusive enough
to render a decision by judge rather it used as a one paramount ingredient to pass a decision.120

There are a lot of child custody issue cases, both decided and active, in Dire Dawa First Instance
court and from those, according to the observation of the researcher, all custody issues raise
cumulative with the divorce issue. And also there is only one judge in family bench and the
burden to decide in all cases is up on him. Therefore, due to a large number of cases and only
one judge is with the issue it is difficult to give a sufficient emphasis on the custody issues. The
Judge, in most cases, totally accepts the social worker recommendation and proceeds in to other

118
Demeke, Supra note 113
119
Rahel, Supra note 115
120
Demeke, Supra Note 113

47
property and divorce issue of the parties. Therefore, even if the best interest of the child is a
paramount consideration to decide custody issue due to the aforementioned reasons it is difficult
to say sufficient emphasis is given for the best interest of the child in custody issue. However it
does not mean that the best interest of the child is not taking in to consideration rather the
consideration is not strong/convincing.

5.2. CASE ANALYSIS

5.2.1. Case one, File No 56164.

Applicant: Dr. Meskerem Sahilu

Respondent: Ato Sebsibe Mekonin

Hamle 25/2007

5.2.1.1. Fact of the case

In Dr. Meskerem Sahilu Vs Ato Sebsibe Mekonin, The applicant, Dr. Meskerem Sahilu,
submitted her statement of claim to Federal First Instance court on Megabit 15/2007. According
to the statement of claim submitted, the plaintiff was in irregular union with defendant from
Nehase 2001- Sene 2003 E.C. In the first month of 2003 the plaintiff concluded a marriage with
the defendant through religious ceremony. While they are in marriage; the plaintiff gave a birth
to a child whose name is Raiy and now he is 4 years old. In Megabit 11/2005 the marriage of the
plaintiff & the defendant were ended, due to the disagreement they decided to live separately.
Thus, the applicant prayed the court to end the marriage in divorce legally with the custody of
the child (Raiy) and maintenance. The defendant also submitted a statement of defense in
Miyaziya 12/2007. According to the submission of the defense, the claims of the plaintiff to end
the marriage through divorce based on disagreement shall be rejected. Since, we have no such
disagreement that entails divorce. Moreover, the defendant claims that the court shall reject the
claims of the plaintiff for the best interest of the child. And in relation with the plaintiff claim to
be the custodian of the child (Raiy) the court shall reject the claim. Since the defendant has
special relation with his son & grown up with the defendant up to now and also since the plaintiff
did not take care of the child due to her absence due to her work place. In relation to the payment
of maintenance; the defendant claims that the court shall reject the claim of the plaintiff; since
the defendant had fulfilled every necessary things to the child while they were living separately

48
based on his own feeling of responsibility. Moreover, the respondent claims the payment of
maintenance shall not be ordered by the court through his employer organization due to the fact
that for the purpose of fulfilling the economic gap necessary things to his marriage the defendant
took a loan from Dire saving & loan institution Birr 45800 while the defendant lacks financial
capacity to cover the expense of scholarship. The loan was depend on the condition that after the
accomplishment of the scholarship the defendant shall repay with n 5 years(60 months) from his
salary by paying 1/3 of his salary to the government. And accordingly it is decided by Dire Dawa
Federal First Instance Court on File No 01698 & after this decision the defendant is still paying
the loan at the same time the court shall not offer the payment of the maintenance.

5.2.1.2. Reasoning and recommendation of the social worker expert

 As we understand from our discussion with the plaintiff and the defendant, the defendant
allows the child to be under the custody of the plaintiff while the plaintiff avoid those
problems happening on the custody of the child and the plaintiff also admitted.
 In our discussion with family the defendant said that the child is not with plaintiff, the
plaintiff also said that the child is lived with her mother (grandmother of the child) and if
the custody of the child is given to her, she is willing to bring up the child herself and
also the grandmother is willing to support the plaintiff since the child is under her
custody before the custody issue is raised.
 As we understand from our observation as far as the age of the child is concerned, he
need a day today follow up and the plaintiff is better in this regard.
 In our discussion with defendant, the defendant has a plan to bring up the child by other
person (employee) and this will create psychological problem on the child.

Therefore, as far as the best interest of the child is concerned, the court by taking in to
consideration the aforementioned grounds it is better to decide the plaintiff to be the custodian of
the child and the defendant to visit Saturday and Sunday morning and to celebrate his birth day
and religious holidays together.

5.2.1.3. Reasoning and decision of the court

Since on the issue of custody of Raiy the decision of the court shall based on the best interest of
the child, the court order that, the social worker expert to provide a report as to with whom the
child is lived his best interest is secured. According to the experts report the best interest of Raiy

49
is secured if Raiy is under the custody of the plaintiff, by taking in to consideration the age of
Raiy and the essential care required to Raiy in his current situation. Thus, the court decided that
the best interest of Raiy is secured only when the custodian responsibility is given to the
plaintiff. :- the plaintiff is appointed as the custodian of Raiy according to Art. 113(1) of the RFC
& the defendant is allowed to visit his son every Sunday from 3:00 A.M -10 A.M. With regard to
the maintenance, excluding 20% allowance of the plaintiff, her income is 4461 Birr & the
defendant income is 7424 Birr; the court decided that the defendant shall pay 900 Birr for
maintenance of his son per month.

5.2.2. Case two, File No 56148

Plaintiff: Ato Alemishet Berihe

Respondent: W/ro Yeshi Minister

Hamle 17/2008

5.2.2.1. Fact of the case

In Ato Alemishet Berihe & W/ro Yeshi Minister the plaintif, Ato Alemishet Berihe, submitted
his statmnet of claim on 17/07/2007 E.C. According to the statement of claim; the plaintiff
concluded marriage with defendant cultural ceremony. While they were in marriage the
defendant gave a birth to:-

a. Beza Alemishet(18 years old)

b. Hana Alemishet(13 years old)
c. Nebiyu Alemishet(3 years old)

But, before two years the defendant committed various immoral activities, adultery on her
marriage (sexual relation with different persons). Before six months also while the plaintiff is in
Addis Ababa he has sent 2000 Birr per month for the defendant to cover all the expenses
necessary to the upbringing of their child. But, the defendant spends the money for her own
recreational purpose with different persons in violation of her marriage contract obligations to
take care of their child in a proper manner. In the first day of Tirr the defendant leave Dire Dawa
city with one of the person, who commits adultery with the defendant and before the defendant
leave the city she terminated her employment contract & robbed all the property from the house,
even common property of the defendant & the plaintiff. And the defendant left the child to no

50
body. Since the defendant robbed the property & flee with other person intentionally before
three months & if the defendant returned back to home, the plaintiff will not continue the
marriage peacefully the court shall take in to consideration all the fact and order to the marriage
to be dissolved without any pre condition and the declaration that the children’s acquired under
marriage relationship to be given to the plaintiff to take care of them & to be under his custody to
ensure the best interest of the children’s.

The defendant also responds in her statement of defense that: even if the plaintiff aware of the
fact that the defendant is currently resides in Dire Dawa city and lives with her brother, then
plaintiff returns the summon to the court by reasoning that the defendant is not present in Dire
Dawa city & it was made intentionally. Thus, the court by taking in to consideration, the
intentional act of the plaintiff, to declare that the right of the defendant to submit the pleading.
Since the plaintiff does not posted the summon in the address of the defendant (Kebele 05) as the
last resort, with a view to get ex-parte judgment in absence of the defendant. And, while the
defendant, at the same court, is opens file to end her marriage through divorce on File No 57766
& the plaintiff reasoning to return the summon by stating that the defendant is not present in Dire
Dawa city is completely wrong.

5.2.2.2. Reasoning and Recommendation of the social worker expert

 As we understand from our discussion with the families and home observation, it has an
adverse effect on the children’s when the court gives the custodian to the defendant in a
situation that the defendant dose not prepared a permanent resident and facilitation is not
fulfilled.
 As we understand from our discussion, currently the children’s are secured in a good
manner Moreover, they have an elder sister (who attain majority) and since she is living
with the plaintiff it is better for the children to secure their interest.
 Even though it is believed that it is better to the child to be under the joint custody of
their parents however, when the parents divorced it is believed that it is better for the
children to be under the custody of their parent with whom their siblings are lived.

Therefore, the expert recommended that as far as the best interest of the children’s
concerned, it is better the court to decide both Childs to be under the custody of their father
(the Plaintiff).

51
5.2.2.3. Reasoning and decision of the court

After the court allows the defendant to be a party to the proceeding, the defendant admitted that
she had a marriage relationship with plaintiff and during such relationship she gave a birth to
three children’s. The defendant also claims that the court to declare that three of her children to
be under her custody and to order that the plaintiff to pay the maintenance for upbringing of their
children.

Up on the claims both parties, the court determined the nature of the case that particularly
related with dispute on marriage relationship the court provides firstly the cooling period for both
parties to maintain the marriage relationship of the parties and to keep the interest of their
children’s. Moreover, the court orders the social worker to submit an expertise recommendation
to the case on how to secure the best interest of the children’s, who shall be the custodian and
about the payment of the maintenance.

Accordingly on Hidar 01/2008 E.C the parties to the case announced to the court that they cannot
resolve resolve their dispute in the given cooling period, and the social science expert also
provide expertise reports in 14/07/2008 by including recommendations on how to secure the best
interest of the child. Up on the receipt of the expert recommendation and the claim of the parties
the court analyzes the fact of the cases with relevant legal backups.

1. Up on the claims of both parties, the court reasoned that according to the revised family
code marriage may be subject to divorce when either of or both of the parties, who were
in marriage relationship requested the court for divorce (Art. 76 of RFC). Accordingly
the plaintiff claims to the court to end the marriage relationship through divorce and
admitted that he were in marriage relationship.

Even if the court before giving any decision orders the existing period for the parties to
resolve their dispute, they cannot reaches to agreement within the prescribed period. Thus,
the plaintiff shall not be forced to live with the defendant without his consent and no legal
grounds to such effects too. Therefore, the court found that the claim of the plaintiff is legal
and justiciable before court of law, as a result the court decided that starting from Nehassie
17/2008 the marriage relationship between the plaintiff and the defendant is ended through
divorce by court order.

52
 2. In relation to the custodian of the children and on the best interest of the child, the courts
based its decision on Art, 113 of the RFC, accordingly, based on the reasons of the
divorce and the expert union the court order that, Hana Alemishet and Nebiyu Alemishet
to be under the custody of the plaintiff. The defendant also allowed to visit her children
on Saturday and Sunday from 4:00-10:00 local time.

5.2.3. Case three, File No 56548

Plaintiff: W/ro Ferehiwot Tadessu

Respondant: Ato Abreham G/Hiwot

Mekerem 06/2009

5.2.3.1. Fact of the case

In a case W/ro Ferehiwot Tadessu Vs Ato Abreham G/Hiwot, the plaintiff filed the claim to the
court at 20/08/07, in which the plaintiff mentioned that she conclude the marriage through
cultural ceremonies with the defendant in 1994. While they are in marriage the plaintiff gives a
birth to the child, named Eisabet Abram and now she is 12 years old. Even though the marriage
continued for a certain period of time; the defendant created various disagreements and forced
the plaintiff to quarrel on simple issues, even if they can solve it through discussion. Moreover
the plaintiff mentioned that the defendant also disregarded his obligation to respect the
psychological integrity of his wife and children, through his quarrel with his wife. As a result the
plaintiff psychological integrity is damaged and the defendant disrespects the dignity of his wife.
Furthermore, the psychological make of Elsabet is abused due to the disagreement between
plaintiff and the defendant.

Claim of the plaintive

1) The declaration that the court to end our marriage through divorce.
2) The declaration that for the best interest of Elsabet the court to appoint the plaintiff as
the custodian of Elsabet.
3) The declaration that the defendant to pay the maintenance to the Elsabet upbringing.

The dependant also submitted his statement of defense to the court on Ginbot 21/2007 and
stated that the defendant does not change and show any behavioral changes and he respects his
wife and children. Moreover, the defendant mentioned that he does not cause any moral damage
53
on his wife and his daughter Elsabet. Since the defendant did not create any quarrel with his
wife, rather the plaintiff forces the defendant to quarrel that affects the moral integrity of their
child.

Claim of the defendant

1) The declaration that for the best interest of the Elsabet the court to appoint the
defendant as the custodian of Elsabet. Since she is 12 years old and does not need
necessarily the plaintiff parental support.
2) The court to uphold the marriage by giving cooling time for arbitration.

5.2.3.2. Reasoning and recommendation of the social worker expert

 In our discussion with the parents in the social worker room we understand that both
parents are discharging their obligation and the plaintiff is better in fulfilling the need of
the child after divorce.
 In our discussion with Elsabet we understand that currently she is in a favorable condition
and she is secured in a good manner and this show that the plaintiff is discharging her
obligation properly.
 Since the child is preferred to be with her mother and she is happy due to the fact that she
is obtaining all things from her mother.

Accordingly, based on the aforementioned reasons as far as the best interest of

the child is concerned, it is better the court to decide the child to be under the custody of the
plaintiff and allowed to the defendant to visit the child on Saturday and Sunday from 4:00-10:00
local time.

5.2.3.3. Reasoning and decision of the court

 The court after hearing the claims of both parties, order for cooling time for both parties to
upheld their marriage through agreement.
 Since both parties claims to be appointed for the custodian of the child and for determination
of the amount maintenance the court orders the social worker expert to provide reports. The
expert report submitted at 08/02/08 reported that;
 The defendant income is 3,236
 The plaintiff income is 4,867

54
 1) Regarding to the marriage

The parties cannot agree on the cooling period and also after the court orders both parties to
solve their problem through arbitration the plaintiff was unwilling to continue in marriage
relationship with the defendant. Thus, the court decided to provide a final judgment on the fate of
the marriage based on the existing legal provisions.

Accordingly, since under family law both or one of the parties to marriage files an application
for divorce, the court decide on the fate of the marriage. Moreover the parties are not obliged in
marriage without their willingness as long as they have valid marriage contract that can be
dissolved or divorced in accordance with the law. Thus the court ends the marriage through
divorce.

2) Custodian and maintenance issue

The court reasoned that while marriage is become end through divorce legally, the children in
marriage shall acquire a custodian to secure their best interest and benefits of the child as
provided under Art.113 of revised family code.

Thus, according to the expert report the best interest of Elsabet will be more secured if she is
under the custodian on the plaintiff by taking in consideration the best interest of child and the
age of Elsabet.

The maintenance to the upbringing of Elsabet is calculated based on the level of income both the
defendant and the plaintiff generated and by taking in to consideration the age of Elsabet.

5.3. Critiques on the Law, practice and decision of the cases

 In the above cases, the court considers the preference of the child merely as a one factor.
Article 12 of CRC provides for the right of children to express their views in every
decision that affects them. However, if the judge believes that the child is better to live
with the one parent he/she believes he/she can give for that parent the custodian right by
giving less emphasis to the preference of the child.
 The court merely confirms the information obtained from the social worker, it does not
make any investigation up on the recommendation of the social worker. The family law
gives to the courts the power to determine and decide as to who should take custody of

55
 children’s among parents.121 However, in the aforementioned decisions the judge confers
wide discretion to the social worker by the mere confirmation of their recommendation to
determine the custody issue.
 The revised family code is silent on the age where a child can express an independent
opinion. In practice the judge accepted and applies what suggested by Medical Doctors it
is good for the child to be with his/her mother until the attainment of 5 year. The court
took into consideration only the fact that the children were above 5 years. There is no any
requirement to be fulfilled or mechanism to be followed which is stipulated by the law
for the court to decide a custody issue for those children’s who are not attained 5 year.
 The RFC stipulates When giving decision on child custody the court shall take into
account the income, age, health, and condition of living of the spouses as well as the age
and interests of the children.122 However, the court regards the financial capacity of the
parent as a paramount consideration, even where they could be considered as capable of
forming an independent opinion. In other word, there is a tendency to give custody for a
parent who is better in financial capacity. If the parent has a better financial situation, the
court grants him or her custody. This can simply infer from the questionnaires prepared
by the social worker for the presumably custodian of the child, in which they takes in to
consideration monthly salary, living standard, source of income and other financial
situation of the parents to give the right of the custodian. Thus, the questionnaire of the
social worker clearly shows that they are giving large emphasis to the financial capacity
of the parents.
 The judge has a wide discretion,123 Wide discretion allow judges to use their individual
subjective attitudes about parent behaviors and choices to resolve custody disputes. The
judge may reflect his/her presumption rather than making a rational assessment of the
child's best interest.
 With regard to the preference of the child even if the expert says, we can know the child
is not influenced by their parents by strengthening our attachment with the children’s,
there is no tangible mechanism whereby the social workers absolutely ascertain that the
child’s are not influenced by their parents. Therefore the experts can be easily falsified

121
The RFC Article 113(1).
122
Ibid
123
Ibid

56
and it is impossible to know whether the children’s are influenced or not, certainly. In
other word, even though they have an attachment with the children’s, the extent of the
ascertainment is very limited.

57
 CHAPTER SIX

Conclusion and Recommendation

6.1. Conclusion

The principle of “ best interest of the child” is a key concept in the world’s child right protection
and it mainly applies in the area of family disputes such as custody, guardianship ,maintenance ,
adoption of the child and other issue. The overall theme of the principle is that due focus and
priority should be given to the political, economical and social interest of the child whenever
policies, laws and decision are made which directly or indirectly affect children. The
international and domestic legislation lack effectiveness when it comes to the monitoring and
implementation of children’s rights, the best interest of the child and the determination of its test
remain problematic.

The Convention on the Rights of the Child defines “child” as every human being below the age
of eighteen years. The Convention does not provide the minimum age of childhood. On the other
hand, the African Charter on the Rights and Welfare of the Child provides a different definition
of the term child. The Charter defines a “child” as every human being under the age of 18 years.
The term “child” is not specifically defined under Ethiopian law. Instead, Ethiopian laws make
use of such terms as “minors”, “infant”. “Young workers” or “young person’s”.

Originally, the doctrine of the best interest of the child had limited application. It was little more
than a way of ensuring that the interests of any children involved would be taken into account in
divorce and custody cases. However, this principle is, nowadays, extended to apply not only in
its original sense, but also “in relation to all actions concerning children”. Despite its very
limited jurisprudential origins, the principle of the best interest of the child is, in one form or
another, embodied in many national and legal systems and has important analogues in diversified
cultural, religious and other traditions. However, this apparent communality is accompanied by
very diverse interpretations that may be given to the principle under different settings.

This Declaration of Geneva reflected the concerns related to the rights of children that were
grossly violated during WWI and its aftermath. The declaration emphasized children’s material
needs and proclaimed that children must have the requisite means for their formal development.
And it is most limited in its scope. The Universal Declaration of Human Rights does not cover

58
particular categories of persons, i.e. children, women, and the like. It rather addresses human
rights in general, to which everyone is entitled. Yet, we can interpret some generic provisions in
the context of child rights. The principle of the best interests of the child is one of the most
important provisions of the CRC; one of the most difficult to explain too. But it seems
impossible to work with the CRC without having any idea of this principle of interpretation or of
this rule of procedure, or having just the impression that everybody is acting for the best interests
of the child /children. The committee on the right of the child in its general comment No 14
seeks to ensure the application of and respect for the best interest of the child by the state parties
to the convention. It define the requirement for due consideration, especially in judicial and
administrative decision as well as in other action concerning the child as an individual, and at all
stage of the adoption of laws, policies, strategies, programs and all implementation measure
concerning children in general or as a specific group.

Different legal systems employ different factors to determine the best interest of the child. Courts
make a variety of decisions that affect children, including placement and custody determinations,
safety and permanency planning, and proceedings for termination of parental rights. Whenever a
court makes such a determination, it must weigh whether its decision will be in the “best
interests” of the child. There is a gap of law under the federal revised family code; there is only
one provision under the code that deals with the custody matter of the child. It gives less legal
protection for the child’s best interest and it also very general one. This make the provision
vulnerable to various interpretations by the presiding judges based on their own perception or in
a way without take in to account the best interest of the child. In addition the provision of the
federal revised family code does not contain exhaustive list of factor for a courts to consider in
determining the best interest of the child. There is also a problem as regards the age where a
child can be regarded as capable of expressing an independent opinion. In this case therefore,
judicial officers each have their own perception as regards the right age. This can also adversely
affect the right of the child to an opinion as there is no expressed age in the Law of family where
a child can be regarded as capable of expressing an independent opinion. As a result the views of
the child are not sought by judicial officers with sufficient emphasis and his or her interests are
adversely affected.

The practice of Dire Dawa Federal First Instance court show that whenever, the judge
entertained a divorce case which involve the custody matter of the child below five years, the
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judge simply entrusted the custody of the child to the mother without even whether the mother is
suitable and capable for the custody of the child or not. Therefore, even if tender year doctrine is
now replaced by the principle of the best interest of the child it is still practiced. The tender age
doctrine is applied by the judge as an automatic right of mother without even questioning the
suitability of the parent to have custody of the child or seeking the views of the child as to where
he or she prefers to stay. In this case therefore, mothers got custody of the children below five
years of age. The court will do nothing other than entrusted the mother as the custodian parent
for the child. There is also a practical problem on the Judge of the court when judgment is
rendered on the child custody matter. The judge are not making any further investigation by
themselves to protect and serve the international and constitutional guaranteed right of the child
which is called principle of best interest of the child. When the spouses come up with an
agreement on the custody of the child, the court simply approve the agreement without any
further inquiry s to the mental, health of the custodian parents, and child’s wish, their right to
education. In other word, the custody issue is entertained by the court when the parents are in
disagreement because the judge presumes that there is no one who is in a better position than
parents to determine what is best for the child.

The involvement of social welfare officers in custody matters is paramount in the determination
of the best interest of the child. Non-involvement of the social welfare officers can make the
work harder for judicial officers when determining the best interests of the child, since the social
welfare officer’s role is to provide them with the background of the parties, their home
environments and their lives with their children.

6.2. Recommendations

As far as the findings and the conclusion are concerned, the researcher recommends the
following for effective implementation of the principle of the best interests of the child.

i. For Dire Dawa First Instance Court

 The Judge should realize that the best interests of the child are not served by only wishes
of parent. They need to also consider other factors, such as suitability of the parent to
have custody of the child and child’s right to education, the right to health and care and
protection as well as inquiring into the arrangements made or proposed by the parties for
the child when they decide to settle the matter out of the court. They should also realize

60
 that they are the upper guardians in issues of custody of which there is one standard they
need to apply and that is the predominant best interests of the child.
 As the researcher discussed above there is only one judge in family bench and the burden
to decide in all cases is up on him. And due to a large number of cases and only one
judge is with the issue it is difficult to give a sufficient emphasis on the custody issues.
Therefore to simplify the proceeding and to avoid the problem the number of the judge in
family bench should be increased.
 As the finding of the study shows, there is a practice of tender year doctrine which prefer
the mother as the custodian parents of child, even without conferring a chance to the
father to prove the mother is unfit for the custody of their child. This practice makes the
judges reluctant in serving the best interest of the child because the judges entrusted the
mother as custodian parent as far as, the child are below five years of age. This principle
is now replaced by the principle of the best interest of the child which gives more
protection for the child during divorce. Therefore, so long as it is replaced by the
principle of the best interest of the child, the researcher recommend that, in order to make
the practice consistence with the international and national instruments which guarants
the best interest of the child, the judge should avoid an indirect application of tender year
doctrine. The judge should, therefore, be made aware in application of custody to decide
depend on the circumstances of the case. Thus, the judge should be aware that the
suitability of the parent to have custody of the child should be questioned and the views
of the child should also be sought for the interests of the child to be served. Awareness
raising can be done through seminars and workshops by other judicial officers who are
familiar with the application of the said provision.
ii. For the Federal House of People Representative
 As the finding of the study indicated, there is a legal gaps relating to the legal protection
and enforcement of the principle of the best interest of the child. Even though, there is
provision dealing with the custody matter, it is general in its nature and lays too much
burden on the court. Furthermore, there is no exhaustive list of factors that the judiciary
should take in to account while they determine the best interest of the child. so the
researcher, recommend to the house to amend the provision to give wider protection to
the child best interest and in a manner that contain exhaustive lists of factor that the

61
 judiciary must take in to account in deciding the best interest of the child. And in a
compressive way that avoid the issue of interpretation by judges when they decide the
child custody matter.
 As the researcher discussed there is legal gap regarding the age where a child can be
regarded as capable expressing an independent opinion. Since there is no any stipulation
by the revised family code which shows regarding the age where a child can be regarded
as capable expressing an independent opinion, judges used their own perception ,skill
and experience to determine at what age the child are capable to express their opinion.
Therefore, the researcher, recommend to the house to stipulate the provision which
clearly shows when the child is capable to express hi/her opinion. It used to give
consistent judgment in all child custody cases and to secure the best interest of the child.

Beside the above, to secure the best interest of the child, the researcher recommended that;-

 The judge has to give due emphasis to the preference of the child.
 Instead of merely confirming the information obtained from the social worker, the judge
has to make an investigation up on the recommendation of the social worker.
 There must be strong and perfect mechanism to identify whether the children’s
preference is not influenced by their parents.

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63
 Bibliography

International laws, declaration and General comment of committee on CRC.

 Convention on the Rights of the Child, opened for signature 20 November 1989, CRC
(entered in to force 2 September 1990).

 African Charter on the Rights and Welfare of the Child, OAU Doc. (1990), entered into
force 29 Nov. 1999.

 General comment on CRC No. 14 (2013) on the right of the child to have best interest
taken as a primary consideration.

 Concluding observation of the committee on the rights of the child, Ethiopia,

UN.DOC.CRC/C/15/ Add.67 (1997), Fourteenth session, consideration of reports
submitted by state parties under art. 44 the convention, at the 371st meeting, held on 24
January 1997 note No. 8.

 The Geneva Declaration of the Right of Child adopted on 26 September1924 (League of

Nation) and Declaration of the Right of the Child adopted by UN General Assembly
Resolution 1386of 10th December 1959.

 Committee RC, Concluding Observations to, inter alia, Jordan in 2006, U.N. Doc
CRC/C/JOR/CO/3.

 Committee RC, General Comment No. 12, ‘The right of the child to be heard’, U.N. Doc.
CRC/C/GC/12 (2009).

 UNHCR, Guideline on Formal Determination of the Best Interest of the Child.

 Committee on the Right of the Child, General Comment, No 5/2003.

National Laws

 Proclamation of the constitution of the Federal Democratic Depublic of Ethiopia, Proc.,

No 1/1995;, Federal Negarit Gazete of the Federal Democratic Republic of Ethiopia,
1styear No.1 Addis Ababa-21st August/1995.
 The civil code of the empire of Ethiopia proclamation No.165 of 1960, Negarit Gazetta,
Gazette Extraordinary 19th year No.2.

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  The federal Negarit Gazetta of the federal democratic republic of Ethiopia 6th year
extraordinary no.1/2000, Addis Ababa 4th day of July 2000, the revised family code
proclamation No.213/2000.

Books

 Abebe Tsehay, problems surrounding divorce in federal revised family code law and
practice, (St. Mary’s university college faculty of law LLB thesis, July 2010).

 Handbook on the rights of child in Ethiopia prepared by GirmachewAlemu (Ph.D.) and

YonasBirmeta, Center for Human Rights College of Law and Governance Studies, Addis
Ababa University In Collaboration with Save the Children Norway-Ethiopia.

 Smyth Mary, The Common European Asylum System and Rights of Children : an Exploration of Meaning
and Compliance(2013).

Cases

 Tsedale Demisse vs. Kifle Demisse (Federal Supreme Court Cassation Division)
Cassation File No. 23632, Tikimit 26/2000 (6th November 2007 G.C (Unpublished)

Journals and articles

 Malia, M,B, Louisiana Family Law; the Visitation of the Non Custodian Parent (1985)

 Lenore J. Weitzman, The Divorce Revolution; The Unexpected Socio and economic
Consequence for women,(1987)

 Ashagrie Abdi, The Ethiopian Civil Society Law in Light of The Principle of The Best
Interest of The Child.

 Mulugeta G. Sisay ‘Departure of Ethiopian Family Laws: the Need to Redefine the Place
of Societal Norms in Family Matters’, Haramaya L. rev. vol. 4, No. 1, 81-106, p. 103,
(2015).

 Aron Degol and ShimelisDinku, Notes on the Principle “Best interest of the child”
meaning, history & its place under Ethiopian law. (nd)

 Stephen Parker, the Best Interest of the Child: principle and problems: The Best Interest
of the Child: Reconciling Culture and Human Rights, International Journal of Law,
Policy and the Family, (1994) Vol.8.

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 Michael Gose, The African Charter on The Right and Welfare of The Child, (2002).

 Philip Alston, “The Best Interest Principle: Towards a Reconciliation of Culture and
Human Right, Reconciling Culture and Human Right” (1994), Vol.8.

 Janel L. Dolgin, Why Has the Best Interest Standard Survived? The historic and social
context (1996).

 Michel Freeman and Philip Veerman, (ed.), The Ideology of Children’s Rights(1992).

 P.M Bromely and N.V Lowe, Bromley’s Family law (7th ed., 1987).

 David Archard and Marit Skivens, Balancing a Child’s Best Interest and a Child’s Views,
International Journal of Children’s Rights(2009).

 Mahlobogwane, F. “south African Courts and The Best Interest of the Child in Custody
Dispute, (2005).

 Melina, M.B, Louisiana Family Law: The Visitation of the Non- Custodian Parent,
(1994) vol. 59.

 Lenore J. Weitzman, The Divorce Revolution: The unexpected Social and Economic
Consequence for Women (1987).

 P.vermeen, The Right of Child and The Changing Image of Childhood (1992).

 E. muller, Great Britain and The Declaration of Geneva V (1925) VI (7) The world’s
Children(1925).

 D. marshall (1999), The Construction of Children as an Object of International Relation.

 M.Mcdougal and H. Lass well, the customary law Status of the UDHR.

 Tilahun Teshome, the African Charter on The Right and Welfare of The Child(1999)
Unpublished.

 Yvonne Dausab, The best interest of the child, 2009.

 Gebrehiwot Aregay, Guardianship and Custody of Children Before and After Modern
Code (1966) Unpublished.

 Fikadu Asfaw, a Brief Note on the Provision of Ethiopian Legal System Governing Child
Custody (2010)
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WebPages

 Andrew Schepared , Best Interest of The Child ( http:// child custody project.org/ essay/
best- interest-of –the –child) last visited on October 21, 2017

 https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/,
accessed on October 21, 2017.

 http://www.hkreform.gov.hk, The Law Reform Commission of Hong Kong, accessed on

October 21, 2017

Interviews

 Interview with Demeke Mekonin, Judge of Dire Dawa First Instance Court, (Dire Dawa,
21 September, 2017).

 Interview with Rahel Balcha, social worker in Dire Dawa first instance court, (Dire
Dawa, 21 September, 2017)

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xiii
ANNEX

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Interview guidelines

This interview is prepared to judges and social worker in Dire Dawa first instance court in order
to get information as to the issues regarding the practice of determination of best interest of the
child during child custody dispute. To this end, I kindly request your cooperation to answer the
following interviews; ensuring you that the information obtained accordingly serves only as
academic research purpose and will be held confidentially.

Interview with the judge in Dire Dawa First Instance Court;

 What is the base for determining child custody issue when there is dispute/
 Do you think the Ethiopian family law has provided exhaustive criteria’s to determine
child custody serving best interest of the child?
 When is a child presumed to express his/her views reasonably?
 What is the weight given for a child’s preference during determination of child custody
when there exists child custody dispute?
 What weight is given to the expert’s assessment on child custody determination during
providing decisions on child custody?
 Do you think expert’s assessment is by itself conclusive to render decision on child
custody serving best interest of the child?
 Do you think courts should assume broad discretionary power in determining what is best
for the children’s? What advantage or disadvantage it may have on the best interest of the
child?
 Is there any practice of reviewing or modifying decisions rendered on the issue of child
custody?

Interview with social worker in Dire Dawa first instance court;

 What are the main tasks performed by social work experts on the issue of child custody?
 What criteria’s do you implement to assess the presumably best custodian of the
children’s?
 What sources do you implement to get information necessary for making the assessment?
 What challenges do you have faced while performing your work in relation to child
custody issues?

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 What mechanisms are employed to identify whether child’s preference was affected by
parental pressure or not?

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