Malawi’s legislative integration and the court’s interpretation and application of ‘the best interests of the child’ principle vis-à-vis international and regional standards

Abstract

In all its Concluding Observations to Malawi, the CRC Committee has expressed its concerns against the State party’s consideration of the principle of the child’s best interests in its domestic law. Overall, the Committee has recommended that Malawi ensures appropriate integration of the principle in its legislative framework, as well as court decisions that impact children. As such, the paper first examined the extent to which the principle of the child’s best interests is appropriately integrated into the domestic legislative framework in Malawi. Afterwards, it reviewed the extent to which domestic case law has appropriately and consistently interpreted and applied the principle in decisions concerning or impacting children. The examination of the domestic legislative framework revealed that whereas Malawi has taken great strides in ensuring appropriate integration of the principle as exemplified by the incorporation of the principle in the Constitution, the CCPJA – whose Third Schedule actually outlines factors similar to those proposed in General Comment No. 14, for determination of the child’s best interests – and other statutes, there is still the need for the principle’s integration in other statutes like the Adoption of Children Act. Regarding the judicial interpretation and application of the principle, while there is largely consistency and appropriateness in the principle’s application, its interpretation remains inconsistent and inappropriate. This suggests that Malawi must concentrate on funding, training, and awareness to effectively implement the principle