4. Right to family
Article 23 of The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) underscores the rights of persons with disabilities to marry, have a family, and make decisions related to reproduction on an equal basis with others. It bestows equal rights in family life, as parents, protection of children from separation and alternative care.
Equal Rights in Family Life
UNCRPD calls on states parties to put in place effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood, and relationships on an equal basis with others, to ensure that:
the right of all persons with disabilities who are of marriageable age to marry and find a family based on free and full consent.
the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children, and access to age-appropriate reproductive and family planning education and the means necessary to enable them to exercise these rights.
the rights of persons with disabilities to retain their fertility on an equal basis with others.
Rights as Parents
Persons with Disabilities have equal rights and responsibilities regarding guardianship, wardship, trusteeship, and adoption of children. The best interests of the child are always the paramount consideration. In addition, appropriate assistance must be provided to persons with disabilities in the performance of their child-rearing responsibilities.
Protection of Children from Separation
Article 23 provides that children should not be separated from their parents against their will, except when necessary for the best interests of the child (as determined by competent authorities). Moreover, a child should not be separated from parents based on the disability of either the child or one or both parents.
Alternative Care
Instances where immediate family is unable to care for a child with a disability, every effort must be made to provide alternative care within the wider family, and failing that, within the community in a family setting.
In Botswana, Children’s, Adoption, Marriage. Citizenship and Immigration Acts provides for Persons with Disabilities to marry, adopt, have children, be granted citizenship and ability to enter, stay, and exit the country.
4.1 Children’s Act
Botswana enacted Children’ Act in 2009 as a requisite for states to protect the rights of children as per the United Nations Convention on the Rights of Child (UNCRC) and also by the United Nations Convention on the Rights of Persons with Disabilities requisite for States parties to ensure that children with disabilities enjoy rights on an equal foundation with other children, and should promote the best interests of the child at all material times. These international instruments help strengthen the legal framework for children with disabilities in Botswana, encouraging policies that promote inclusion, non-discrimination, and equal opportunities for children with disabilities.
The Children's Act provides a legal framework that aims to protect and promote the rights of all children, including those with disabilities. Although the Act does not have extensive provisions dedicated to disabilities, it contains key principles that uphold their rights and welfare, ensuring they are treated with dignity, provided access to education, and protected from discrimination.
Disability provisions in Children’s Act relate to non-discrimination and equal rights, child welfare and best interests of the child, access to education and health, protection from harm, inclusion in social services, role of guardians and caregivers, adoption and guardianship. While Children's Act provides important protections, there are however challenges related to its application especially access to specialized services and inclusion in mainstream society. Provision of specialized services specifically education and healthcare are scarce or underdeveloped. Moreover, societal attitudes and infrastructure are a hindrance to full participation in all aspects of life, including education, recreation, and employment.
In conclusion, while the Children's Act provides a broad framework for child welfare, its provisions for children with disabilities focus on ensuring their inclusion and protection, though there are still challenges in implementing these principles fully. Continued attention and resources are necessary to ensure that the rights of children with disabilities are upheld in every aspect of their lives. In a nutshell, the Children’s Act does cover the provisions of a child in line with the UNCRDP. Botswana can still do more in offering specific services for children with disabilities.
4.2 Adoption Act
The Adoption of Children Act in Botswana does not explicitly address the adoption of children with disabilities. However, it includes provisions that may indirectly impact the adoption of children with disabilities.
Eligibility of Adoptive Parents: The Act permits various individuals and couples to adopt children, including married couples, single individuals, and those separated from their spouses due to mental illness lasting over seven years. Notably, a married person whose spouse has been mentally disordered or defective for at least seven years can adopt a child alone, provided the condition is likely to be permanent.
4.3 The Marriage Act
The Botswana Marriage Act seeks to balance traditional practices with formal legal requirements, ensuring that both civil and customary marriages are legally protected. The Act recognizes both civil marriages and customary marriages. Civil marriages are formal, registered marriages conducted under the Marriage Act, while customary marriages are based on the customs of different ethnic groups in Botswana
The Marriage Act and the rights of individuals with disabilities intersect in several important ways, among others marriage capacity and consent, legal protections against discrimination, assistance and accommodations, customary versus civil marriages, marriage dissolution, disability and family rights. People with disabilities cannot be excluded from marriage based on their disability and have the right to marry. Moreover, Persons with Disabilities can choose a spouse, establish a family, become a parent or have custody of children. In addition, sign language interpreters may be required for individuals who are deaf or have hearing impairments as well as accessible venues for those with physical disabilities for marriage registration and solemnisation.
The Botswana Marriage Act provides a framework for marriage, but the rights of people with disabilities must also be respected, ensuring they have the legal capacity to marry and enjoy the same rights and protections as others. Ensuring accessibility, legal capacity, and non-discrimination is key to protecting the rights of individuals with disabilities in the context of marriage.
