GREETINGS AND INTRODUCTION
I am delighted to be here, on this special day, at the Child Protection Conference organized by Aku Resources & Advocacy Centre to celebrate our children.
This is a wonderful initiative that I am grateful to be part of. Our general theme is very important for Nigerian society – ‘Unite to Reverse the Impact of Covid 19 Pandemic on Children’.
This period has been difficult for us all, however, our children have been the main victims of the pandemic and the attendant lockdown.
Most schools were closed for about a year, reducing children’s access to education, learning and interaction with peers. Due to the number of low-income families in a developing country like Nigeria, most did not have access to virtual learning where available.
Also, most families were pushed into poverty and so good food, accommodation, water and sanitation became luxuries.
The most serious and overlooked impact of the pandemic was the increased exposure of children to violence in the home whether directly or indirectly.
The task I have been given today, which I accept with all pleasure, is to discuss the impact of domestic violence on children as it relates to custody, welfare and maintenance.
I have come to realize that only cursory attention is given to children as victims of domestic violence, and I am glad for this opportunity to put children at the centre of the domestic violence narrative. We would begin by defining the
term domestic violence before we proceed to discuss its impact on children especially as it relates to their custody, welfare and maintenance.
For more details about Newswire Law&Events Magazine, kindly reach out to us on 08039218044, 09070309355. Email: firstname.lastname@example.org. You will be glad you did
DOMESTIC VIOLENCE: NOW A GENERIC NORM
I will like us to take out our phones and perform a google search on the term domestic violence.
One would see that most of the search result discuss domestic violence from the perspective of female victims – women and wives – and male perpetrators.
You would be tempted to believe that domestic violence is synonymous with terms like ‘wife beating’ ‘wife abuse’ and ‘women battering’. This narrative is incomplete and misleading.
Domestic violence involves a wide range of victims, perpetuators and relationships.
It is synonymous with terms like Intimate Partner Violence, Home Violence, Domestic Abuse, etc. For our purpose, domestic violence is the use of aggressive or violent behaviour by a person against another within the home to gain or maintain control over that other individual.
Violence could be physical, psychological, economic or emotional. It could happen in a relationship involving married couples, cohabiting couples or those dating. Victims could be women, men, children, the elderly or other relatives.
During the first stages of the Covid- 19 wave in Nigeria, domestic violence was shown to have increased by 56%.
In the first two weeks of lockdown, domestic violence cases rose from 346 to 794 nationwide. In Nigeria and worldwide, women are said to be the primary victims of domestic violence with a percentage ratio of 92% to 8% when compared to men.
This presentation will focus, however, on children victims of domestic violence and the impact it has on them. So long as children are present in a home where violence is rife, they are victims regardless of whether or not the violence is directed at them or another individual. The impact on the youngsters could be physical, psychological, economic or emotional.
Let us briefly discuss the general impact of home violence on children.
GENERAL IMPACT OF DOMESTIC VIOLENCE ON CHILDREN
Domestic violence is harmful to children both directly and indirectly; that is, whether they are active or passive victims. Several psychological studies that show the negative impact of domestic violence on children.
This impact is usually felt even when the abuse is hidden from the children. This is because the violence creates a naturally toxic environment.
The victim, usually the mother, is usually injured and anxious while the perpetrator is volatile and enraged.
This disrupts the rhythm of love and nurture which a child needs to guarantee his or her physical, emotional, psychological, social and intellectual wellbeing.
The negative impact of domestic violence on the child includes; physical injury, fear, guilt, depression, withdrawal, anger, anxiety, insomnia, drug/ alcohol abuse, juvenile delinquency, learning deficiencies, flight from home, etc.
An Igbo proverb says Nne ewu na ata agba nwa ya ana ele ya anya n’onu. It means ‘when a she-goat chews, the kid watches’. Children are a product of their environment, they learn by imitation; a child exposed to domestic violence is prone to be violent in his or her present and future relationships. Also, since the child cannot get the necessary support, love, care, and security from the home, he/ she searches for it outside making it easy to fall into the hands of predators and peer pressure. These effects may be long or short-term.
As we know, the family is the basic unit of society and the first contact a child has with society. Where there is domestic violence in the family, borrowing Achebe’s phrase, things fall apart as the centre cannot hold.
At this point, the family unit is at a breaking point and there is little or nothing that can keep it from shattering. Divorce or Separation is usually the next step proposed to keep the direct victim safe.
Protecting the abused from the abuser overshadows all other considerations including the impact of this arrangement on the children of the relationship. Before I go further, let me point out that the only party incapable of truly escaping the impact of domestic violence is the child.
Even where the abuser and the abused are separated by divorce making violence less likely – but more deadly when it occurs – the child suffers the negative consequences of being torn apart from the family unit.
One of the issues that crop up is as regards the custody, welfare and maintenance of the child. This will be the focus of the rest of this presentation.
CUSTODY, WELFARE AND MAINTENANCE OF A CHILD IN SEPARATION INVOLVING DOMESTIC VIOLENCE
As a result of the negative impacts of domestic violence on the physical, emotional and mental wellbeing of the children, there is a compelling need to separate the children from the abusers and violators.
This, however, may not be as straightforward as it sounds because several factors must be considered before a decision is made.
No decision can be said to completely favour the child, so parents, enforcement and judicial bodies must be careful in weighing the fact and evidence when reaching a decision.
It is important to state at this juncture that in determining cases involving custody, welfare and maintenance of a child upon separation of parents on grounds of domestic violence, the best interest of the child must be the primary concern.
Unfortunately, in most cases, the couple’s attention is on proving irreconcilable differences or violence. The children are only seen as spoils of the war and only perfunctory attention is given to their wellbeing.
This should not be so. In determining who gets custody of the child, the impact of the violence and the separation on the child be considered. The welfare of the child needs to the paramount factor to be considered.
For our purpose custody is the physical and legal control over a child and the legal authority to make decisions on the medical, educational, health, and welfare needs of a child. Custody could be sole, joint or split.
Sole custody is a situation where physical and legal control is given to one parent. Joint custody is where both parents have equal control and decision-making power over a child.
Split custody is a situation in which the children are shared between the parents or relatives.
The best interest would include the welfare, education, security; happiness and overall well-being and development of the child.
This is captured in Section 69 (1) of the Child Rights Act which provides that “The Court may … make such order as it may deem fit with respect to the custody of the child and the right of access to the child of either parent, having regard to the welfare of the child and the conduct of the parent”. Section 71 (1) of the Matrimonial Causes Act also provides that “In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration”.
Due to the patrilineal nature of the Nigerian society, most customary laws would usually grant exclusive custodial rights to the father. However, statutory provisions like the Child Right Laws, Customary Court Laws of the States, and case law like Williams v Williams provides that the best interest of the child trumps any customary law which gives guardianship of the child to any parent.
The laws do not directly include domestic violence as one of the factors to be considered in determining the best interest of a child, however, the court is usually granted a wide discretion as it relates to custody rights.
This empowers the court to take presence of domestic violence into consideration.
Nonetheless, I believe that this factor and the weight to be attached should be expressly spelt out in the legislations.
It is important that in determining custodial rights, the children should not be left to the abuser in a case where the abuse was extended to them.
As we said earlier, the children could experience emotional and psychological harm even where they are not the direct victims.
However, total separation of the child from one parent deprives him or her of the love of both parents and may also be detrimental to the emotional wellbeing of the child.
Due to the negative impact of complete separation of children from their parents, the following factors should be considered in granting custodial or visitation rights where the child is a passive victim; type of abuse, severity of the abuse, long-lasting emotional effect on the child, frequency of the abuse, whether there is a pending criminal case against the violator, report by police or welfare officer and availability of evidence to prove abuse.
The court must also pay attention to the likelihood of repeat scenarios noting that violence is likely to continue and even worsen upon separation or divorce.
This is especially so when the violator refuses to take responsibility for the violence.
Since removing the abuser completely may have negative effects, the court could where necessary make provisions for supervised or unsupervised visitation rights for the non-custodial parent.
There is no one size fit all solution. Looking at a case based on the best interest of the child demands detailed case-by-case analysis.
In determining the best interest of the child, the psychological and emotional wellbeing is almost as important as the material or economic welfare of the child.
Nigeria, as I have said severally is a patriarchal society, so women are more likely to be the victims than men.
Also, women are usually financially dependent partners, incapable of providing adequately for themselves and the children. Still, this should not deter a court from granting custody to the woman where domestic violence is in issue.
Recourse should be had to the provisions of the laws as regards Maintenance. Maintenance is an ongoing, periodic payment made by a non-custodial parent to a custodial parent for the financial benefit, care and support of a child upon the termination of the marriage or other relationship.
The Matrimonial Causes Act makes payment of maintenance upon dissolution of a marriage for a child below 21 years mandatory, automatic and enforceable.
Although there is no fixed formula for calculating child maintenance, certain factors are usually considered by the court when making an order for maintenance. They include the financial, educational, accommodation and special needs of the child as well as the income, financial capacity and properties of the party required to make the payments.
We must also note, however, that since most of the custodial parents may be single mothers prone to poverty; their bargaining power would be weak.
Also, the maintenance system is fraught with deficiencies that make support and enforcement of maintenance difficult. There are inadequacies in the calculation of maintenance, high percentages of arrears or defaults in payment of maintenance, etc. This can also have a negative impact on the upbringing and training of the child if not carefully weighed up.
CONCLUSION AND RECOMMENDATIONS
Studies suggest that the impact of domestic violence on children is worse than school bullying and street violence even when they are not the direct recipients of the abuse.
This is because the abused and the abuser are individuals whom the child looks to for love, support and security. This impact is not mitigated upon the dissolution of the relationship.
The emotional or psychological strain on the children make them prone to violent and anti-social behavioural patterns, criminality, educational failures, risky sexual activity, apathy for the marriage institution and even poverty.
With the increase of the rate of domestic violence during the Covid 19 pandemic, more of our children are victims of this violence and the consequent divorce, custody and support issues.
It begs to repeat that when children are victims of domestic violence the consequences are tougher on them. The following recommendations are proposed to mitigate the negative impact of domestic abuse on children:
- Prevention, they say is better than cure. More elaborate laws and enforcement mechanism against domestic abuse should be put in place to deter persons especially men from engaging in domestic violence against their partners and children. It is important that the Violence Against Persons Act 2015 which contains elaborate provisions for the protection of women from violence be enacted by all the states of the federation. Presently, the law has only been enacted by 19 out of the 36 states of the Federation.
Clear provisions should be included in the Matrimonial Causes Act and Child Rights Laws on factors to be considered in determining the best interest of a child for Custody related issues especially as it relates to victims of domestic violence. Laws should be clear on the method for
- calculation of Maintenance support to be provided for the custodial parent by the non-custodial.
- Pro-Bono legal services should be made available for victims of domestic violence especially where the victim is not financially independent. Lawyers, law enforcement and welfare officers should make it a priority to provide clear and detailed evidence of the violence and its impact on the children to guide the judiciary in making sound decisions.
- Training should be required for representatives of law enforcement and the judicial system to help them make better-informed decisions in domestic violence cases especially as it relates to custody and maintenance based cases.
- Counselling sessions should be made compulsory for individuals and properly monitored before they are legally joined as a couple.
- Research should be conducted to identify the protective factors that are best at promoting resilience in children exposed to domestic violence and the interventions that help children overcome the negative impact of broken homes. Counselling and therapy should be made available for children who are active or passive victims of domestic violence and broken homes.
I strongly believe that the following would help to reduce the negative impact of domestic violence on children especially as it relates to custody, welfare and maintenance.
The children are our future and all stakeholders – parents, society, government and non-governmental organizations need to work together to protect them from physical, social and psychological harm associated with domestic violence.
As Nelson Mandela said ‘There can be no keener revelation of a society’s soul than the way in which it treats its children’.
Once again I wish our children a wonderful celebration.
JOYCE ODUAH, FICMC
GENERAL SECRETARY, NBA