New thesis on children’s best interest in custody disputes in Rwanda

Rwanda has and is undergoing remarkable growth in different areas including economic and social. Amidst the country’s social transformation, divorce numbers have also recorded unprecedented growth. Policies and legislation designed to keep the sanctity of the marriage and family are in place but they have not been able to halt the increase in divorce. And divorce leads to the question of child custody.

Naomi Umuhoza explains:

“Rwandan law majorly provides for sole physical custody while the other parent retains visitation rights. Child custody invites the children’s rights and in particular the consideration of the best interests of the child in all matters concerning them. Thus, child custody as a matter concerning children requires that the decision-maker in a custody dispute considers their best interests in choosing a custodian and other custodial related decisions.”

The study conducts a comprehensive normative and institutional review to analyse the foundation of the application of the best interests. In addition, empirical research is conducted through case law analysis and face-to face interviews with judges. The aim was to acquire insights on practical application of the best interests of the child in custody determination.

Consideration of the best interests of the child is an international principle of children’s rights in any matter concerning them, directly. This is stipulated in article 3 (1) of the United Nations Convention on the Rights of the Child (CRC). Matters directly concerning children should put their interests into account because the matter is first and foremost, about them. The UN CRC Committee has underscored that also in matters not directly concerning the child, which may have significant impact on them nonetheless, consideration of the principle of the best interests would be appropriate.

In 1990, the Organisation of the African Unity also adopted the African Charter on the Rights and Welfare of the Child (ACRWC), which includes the best interest principle as the primary consideration in all matters regarding children. The two instruments can be directly referred to in deciding a matter concerning a child. It is therefore clear that the principle of the best interests of the child has a legal basis in the domestic law, according to Naomi.

Child custody determination in Rwanda is done in the divorce process, and divorce is only granted after proving the ground or the fault as provided for in the Family Act. Divorce can be denied if the fault is not proven by the plaintiff.

“The parents or even the court cannot fully engage in the discussion of child custody if they are not certain that divorce will be granted. At the time of pronouncement of divorce, custody is also decided, at which point the best interests has not been assessed or considered”, continues Naomi.

“It is factually unattainable to consider the best interests of the child in a matter where custody is not the subject matter of the procedure and where the concerned person (the child) is neither present nor represented. Thus, whereas the consideration of the best interests of the child has a firm basis in Rwanda’s legislation and policies, the procedure to effect it in custody proceedings is absent. As a result, its application remains questionable.”

As a way forward, consideration of the best interests of the child in custody disputes should be made in an independent procedure where the subject matter is child custody determination and a child is the focus.

“It should also take a child rights-based approach where a child is present and or represented. A child should be given an opportunity to be heard and his or her opinion be considered in view of his or her age and maturity. In child custody where only one parent takes custody of the child, the opinion of that child should be heard and considered in view of that decision concerning him or her,” concludes Naomi.