I. GENERAL MEASURES OF IMPLEMENTATION
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10. The main piece of Namibian legislation dealing with children is the Children's Act No. 33, 1960, a statute which was inherited from the Republic of South Africa. The central purpose of this law is the protection of children. This includes the provision of alternatives for the punishment and rehabilitation of child offenders, as well as mechanisms for protecting children from neglect, exploitation and harmful environments. The statute also regulates adoption.
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II. DEFINITION OF THE CHILD
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34. The Children's Act - which covers such matters as adoption, children's homes and places of detention, children's courts, the prevention of neglect, ill-treatment and exploitation of children and children in need of care -defines a "child" as any person who is under the age of 18 years, and includes for certain purposes persons between the ages of 18 and 21.
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48. There are a variety of other areas in which children acquire different rights and powers at different ages. For example, a child over the age of 10 must consent to his or her own adoption (Children's Act No. 33, sect. 71 (e)). Children who have reached the age of 16 are eligible to obtain a licence for a firearm (Arms and Ammunition Act No. 75, 1969). A child over the age of 16 is competent to make a will (Wills Act No. 7, 1953).
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III. GENERAL PRINCIPLES
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76. As noted above, the opinion of the child is also sought in regard to alternatives to the family environment. Under the existing laws relating to adoption, a child over the age of 10 must consent to his or her own adoption. Also, where a children's court holds an inquiry in respect of a child in need of care because of material or moral neglect, the law requires that the inquiry be held in the presence of the child, unless this is deemed inadvisable because of the child's infancy, ill-health or some other sufficient reason. (Children's Act, sect. 30).
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V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
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G. Adoption
199. Adoption is governed by the Children's Act. There are four categories of persons who are eligible to adopt children: (i) a husband and wife jointly; (ii) a single person (unmarried, divorced, widow or widower); (iii) a married person acting individually, where the spouse is mentally disordered or defective; or (iv) a married person acting individually, where the spouses are separated by judicial decree.
200. There are a number of rules concerning the age of the adoptive parents and the age of the adoptive child. The basic rule (sect. 70) is that the adoptive parent must be over the age of 25, and the child to be adopted must be under the age of 16 and at least 25 years younger than the adoptive parent. There are, however, a number of exceptions to this rule, and there is a particular degree of flexibility where the child to be adopted is related to someone in the adoptive family (for example, where a child is born to one of the spouses in a marriage and the couple wish to adopt the child jointly).
201. Consent to adoption must be given by the child's parents or guardian. In the case of a child born to a single mother, only the mother's consent is required. The consent of one parent is also sufficient where the other parent is dead, mentally incompetent or incarcerated as an habitual criminal, or where one parent has deserted the child (sects. 71 and 73). Parental consent may be dispensed with altogether where such circumstances apply to both of the child's parents. Where the child to be adopted is over the age of 10, the consent of the child must be obtained.
202. All applications for adoption are considered by a children's court, which may consider evidence on any matter which it considers relevant to the adoption. The court's primary consideration is whether the proposed adoption will serve the interests of the child. The court must satisfy itself that the adoptive parent or parents are fit and proper persons to be entrusted with the custody of a child, as well as being financially able to maintain and educate the child. The court is also expected to take into consideration the child's religious, cultural and ethnic background, although there are no hard and fast rules on this point (sects. 71 and 35 (2)).
203. Upon adoption, the child normally receives the surname of the adoptive parent and is treated as the natural child of the adoptive parent for purposes of inheritance from that point forward, although the adopted child does not have the right to inherit from any relative of the adoptive parent in the absence of a will to that effect. (This exception is balanced by the fact that the adopted child retains the right to inherit from the natural parents of their relatives in the absence of a will (sect. 74)).
204. At the request of the natural parents or guardian, adoptions may be carried out on the basis of non-disclosure, where the identity of the natural parents and the identity of the adoptive parents are not mutually known. The guiding criterion is whether non-disclosure will serve the interests of the child (sect. 71 (3)). Where the adoption is not granted on the basis of non-disclosure, the court may give the natural parents or guardian permission to visit the child during the first two years after the adoption takes place (sect. 75).
205. An adoption may be rescinded in three circumstances: (i) where a natural parent of the child applies for recision on the grounds that the adoption was improperly granted without his or her consent; (ii) where the adoptive parent of the child applies for recision on the grounds that the adoption was induced by fraud, misrepresentation or error, or on the grounds that the child suffers from a mental illness or defect which existed at the time of the adoption; (iii) where an application for recision is made by a natural parent or guardian, by the adoptive parent or by the State on the grounds that the adoption is detrimental to the child (sect. 76).
206. The government officials who administer the adoption laws report that illegal adoptions are not a problem in Namibia.
207. National statistics on adoption are available. In the period from independence to the end of August 1992, 127 adoptions were registered nationwide, with about 70 per cent of these being the children of single mothers adopted at birth. In some cases such children are adopted by members of the extended family. In about 60 per cent of all adoptions, the identity of the biological parents is not disclosed to the child or the adoptive parents. There is generally no problem in finding adoptive parents for children of any race or sex, as there is a list of prospective adoptive parents.
208. Intercountry adoption is illegal in Namibia. In the case of any child born to a Namibian citizen, the applicant (or at least one of the applicants) for adoption must be a Namibian citizen resident in Namibia. The only exceptions are where at least one of the adoptive parents is a Namibian citizen and a relative of the child but resides outside the country, or where at least one of the adoptive parents is a permanent resident who qualifies for naturalization as a Namibian citizen and has in fact already applied for naturalization. Although these exceptions are extremely narrow, ministerial approval is also required in such cases (sect. 71 (2) (f)).
H. Illicit transfer and non-return
209. Very few instances of this problem are reported in Namibia, although this does not necessarily mean that the problem does not exist.
210. As a newly independent country, Namibia is still in the process of entering into international agreements on various topics. The Government is still awaiting a list of the agreements entered into on behalf of Namibia by the South African administration, as such agreements remain binding on Namibia in terms of article 143 of the Namibian Constitution, unless they are specifically repudiated by Parliament. Namibia is also in the process of negotiating extradition treaties with South Africa and Botswana, a step which would help to make redress possible in the case of children illegally taken abroad.
211. Although Namibia is not a party to any specific international agreements on the issue of kidnapping, the Ministry of Foreign Affairs is keeping abreast of international developments in this area.
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J. Periodic review of placement
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226. As noted above, an adoption can be rescinded at any stage if the adoption is determined to be detrimental to the child.
VIII. SPECIAL PROTECTION MEASURES
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C. Children in situations of exploitation
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491. Namibia does not have a problem with "black market" adoptions. The Children's Act (sect. 86) makes it illegal to publish advertisements relating to the adoption or custody of children, including a mere intimation of a willingness to adopt or to provide a child for adoption. The publisher and the editor of the publication in question can be convicted of an offence and can also be incarcerated until they reveal the name and address of every person involved in the offending advertisement. It is illegal for any person to give or to receive money or anything else of value in connection with the adoption of a child. This applies to the prospective adoptive parents, the natural parents or guardian, or any other person (sect. 79). There are no indications that any adoptions are taking place outside of the statutorily prescribed procedure (see sect. V H above).