Pursuit of the truth repudiation : through the eyes of the child

Abstract

Satisfying ones` curiosity for whatever betrayal suffered, and pursuing the severance of any legal or natural tie with their offspring, has consequences which are far beyond any logical pretext. The subject is so sensitive, there is evidently no right way to balance the rights of the spouse who has not given birth wanting to repudiate on the one hand and the mental and developmental trauma the child will suffer on the other, not to mention the possible breach of the child’s fundamental human right to parentage and family life. It is a challenging situation for all parties involved and of course not all situations are synonymous. However, from various discussions with academics, and legal professionals it intriguingly transpires how much at par they treat the rights of children to those of adults; an unfortunate situation to say the least. There is a reason why legislators and International bodies created law specifically catered for children as they are not meant to be treated on the same level playing field. In the eyes of the law, children must be given privileged protection, and they are dependent on such protection to have their dignity and wellbeing preserved and safeguarded. In this regard this paper will study how such scenarios can be carefully dealt with by the Courts, adjudicators, legal professionals, and/or the Plaintiffs themselves, keeping in line with the legislator’s intention, that is or ought to be, the best interest of the child which should ultimately be the paramount consideration. Despite our law having various restrictions in diminishing as far as possible the chances of such a request being granted, and mitigating the effects the repudiation may have on the child, this paper will be taking a qualitative approach; thus, analysing the rationale or otherwise of the professionals involved in defending or attacking the biological/legal tie between the contesting parent and the child. An analysis will be attempted through Dworkin’s theory of Law as Integrity, that is to say, is their reason in line with what the legislator sought to achieve; has the rationale of the Court evolved and progressed having at its core moral consideration in the post or pre-interpretative stage of the judicial decision making process; are they interpreting the law on the basis of strictly its legality; or are they interpreting the law in a vacuum completely independent from any moral principle but as a social construction that arises from people thinking and doing certain things. Local and foreign case-law will be cited in the pursuit of building a probable timeline on the progression of how this provision of the law has been tackled and the varying instances where it was not constant. The focus will be from the child’s perspective, on their participation in Court and on how they would try to make sense of the parents’ decision depending on the years lapsed, and protection offered to them during proceedings and possibly consequent to the case. Thus, brief reference will be made to the evolvement of the psychological attachment the child develops with their parents from the early stages of their life. This paper aims to achieve tangible proof to create awareness, possibly reaching Judicial hands, as to the consequences arising from the pursuit of the truth in Repudiation and the necessary safeguards required in curtailing its effects.