Family’s battle to reunite continues
Legal experts have criticised Judge Thomas Masuku’s ruling in the case of the Lühl twins, saying that he failed to take the best interest of the children into account.
JANA-MARI SMITH
WINDHOEK
The Namibian High Commission in Pretoria on Tuesday briefly shut the door to Namibian Phillip Lühl after he tried to submit a formal application for travel documents for his newborn daughters Maya and Paula Delgado Lühl.
Lühl had approached the High Commission a day after Namibian High Court Judge Thomas Masuku faulted the lack of an official application as the grounds on which he felt the court could not yet interfere with home affairs’ refusal to allow the twins to come home.
Instead of being assisted, Lühl was told he “must deal directly with the ministry in Windhoek.”
After a flurry of back-and-forth enquiries, Lühl was given permission on Wednesday morning to submit the formal application to the Pretoria High Commission after all, following instructions from a government attorney. The application will be couriered to Windhoek for consideration.
Flimsy
Meanwhile, legal experts have criticised Masuku’s judgment, underlining that his ruling failed to take the best interest of the children into account.
They accused him of focusing on the lack of a proper paper trail.
“A birth certificate issued in SA is proof of parentage. No DNA test is required. The children are Namibian and they ought to come home. The court lost itself in forms instead of dealing with real substance of the matter.
“The best interest of the children should have prevailed and not the process of the application for emergency travelling documents,” a well-respected lawyer, who declined to be named for the article, said yesterday.
She added that the minister had made it very clear they would refuse an application.
“What else is required from the parent when the minister has everything he needed to say yes to the request?” the lawyer said.
“Namibian courts are not mindful of their constitutional obligation to enhance constitutional rights by paying full attention to the values of the constitution. Instead, our courts are often caught up in legal compliance and thereby undermines the rights of litigants,” she added.
Lawyer Eben de Klerk yesterday agreed that the court had “failed in its duty as supreme guardian of all minors.”
The Legal Assistance Centre (LAC) described the ruling as “disappointing and disturbing”, and said the court had “neglected its primary legal duty to safeguard the best interests of the children.”
“The reality is that Paula and Maya are being discriminated against because of the sex of their parents,” the LAC said
The LAC team underlined that the case, “at the end of the day, is not a gay rights issue so much as a child rights issue. The twins have every right to spend the early days of their lives with both of their loving parents. It is surely in the best interests of the twins and their older brother for the family to be together.”
Worry
Child protection specialist Veronica Theron said the most important aspect to consider in the case is the “best interest of the two children,” emphasising that the circumstances around their birth and parentage should not be the primary issue.
Theron said Namibia’s robust child care and protection act provides that all children “have the right to be cared for and loved by both parents.”
“Children do not ask to be here. They cannot be punished for their existence and the views of others about their parents. It is in the best interest of a child to be with the parents.”
WINDHOEK
The Namibian High Commission in Pretoria on Tuesday briefly shut the door to Namibian Phillip Lühl after he tried to submit a formal application for travel documents for his newborn daughters Maya and Paula Delgado Lühl.
Lühl had approached the High Commission a day after Namibian High Court Judge Thomas Masuku faulted the lack of an official application as the grounds on which he felt the court could not yet interfere with home affairs’ refusal to allow the twins to come home.
Instead of being assisted, Lühl was told he “must deal directly with the ministry in Windhoek.”
After a flurry of back-and-forth enquiries, Lühl was given permission on Wednesday morning to submit the formal application to the Pretoria High Commission after all, following instructions from a government attorney. The application will be couriered to Windhoek for consideration.
Flimsy
Meanwhile, legal experts have criticised Masuku’s judgment, underlining that his ruling failed to take the best interest of the children into account.
They accused him of focusing on the lack of a proper paper trail.
“A birth certificate issued in SA is proof of parentage. No DNA test is required. The children are Namibian and they ought to come home. The court lost itself in forms instead of dealing with real substance of the matter.
“The best interest of the children should have prevailed and not the process of the application for emergency travelling documents,” a well-respected lawyer, who declined to be named for the article, said yesterday.
She added that the minister had made it very clear they would refuse an application.
“What else is required from the parent when the minister has everything he needed to say yes to the request?” the lawyer said.
“Namibian courts are not mindful of their constitutional obligation to enhance constitutional rights by paying full attention to the values of the constitution. Instead, our courts are often caught up in legal compliance and thereby undermines the rights of litigants,” she added.
Lawyer Eben de Klerk yesterday agreed that the court had “failed in its duty as supreme guardian of all minors.”
The Legal Assistance Centre (LAC) described the ruling as “disappointing and disturbing”, and said the court had “neglected its primary legal duty to safeguard the best interests of the children.”
“The reality is that Paula and Maya are being discriminated against because of the sex of their parents,” the LAC said
The LAC team underlined that the case, “at the end of the day, is not a gay rights issue so much as a child rights issue. The twins have every right to spend the early days of their lives with both of their loving parents. It is surely in the best interests of the twins and their older brother for the family to be together.”
Worry
Child protection specialist Veronica Theron said the most important aspect to consider in the case is the “best interest of the two children,” emphasising that the circumstances around their birth and parentage should not be the primary issue.
Theron said Namibia’s robust child care and protection act provides that all children “have the right to be cared for and loved by both parents.”
“Children do not ask to be here. They cannot be punished for their existence and the views of others about their parents. It is in the best interest of a child to be with the parents.”
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