Last edited: May 2005
Summary and Analysis
Fiji passed a comprehensive Family Law Act in 2003, establishing Family Divisions of the High Court and Magistrates Court. The Family Divisions have jurisdiction over dissolution of marriage, child custody, spousal and child support, and related matters, as well as jurisdiction to make orders relating to the welfare of children. The Family Law Act mandates that a court deciding a case relating to a child’s welfare must consider the child’s expressed wishes, taking into account the child’s maturity and level of understanding. The Court has authority to appoint a separate representative for a child if appropriate. A separate representative may be appointed on the Court’s initiative, or at the request of a child, an organization concerned with the welfare of children, or any other person. However, the Family Law Act only applies to child welfare issues that arise in the context of marriage and custody disputes, and explicitly acknowledges that it does not affect the application of child welfare laws.
Child protection (abuse and neglect) is governed by the Juveniles Act, which was passed originally in 1977. The Juveniles Act defines the offenses of cruelty to and neglect of juveniles and gives the Juvenile Court the authority to make orders relating to the care, protection, and control of juveniles. The Act directs Juvenile Courts to have regard to the welfare of the child, but there are no explicit provisions relating to the child’s ability to participate or be legally represented in court.
The extent of child abuse and neglect in Fiji is not clear. Fiji acknowledged in its Initial Report under the Convention on the Rights of the Child that:
The incidence of crimes against children in Fiji is impossible to determine for many cases are never reported. If victims do report abuse they variously go to the police, the hospital, medical practitioners, religious leaders, or organizations such as the Women’s Crisis Centre. Even fewer of these cases proceed to court.[2]
The Fiji Women’s Crisis Centre, which receives and responds to reports of child abuse, reports that more and more people are reporting child abuse; but the numbers are still very small. From January to July of 2004, the Centre received 21 reports of child abuse.[3]
Sources of Law (In Order of Authority)
Statutes
FAMILY LAW ACT, 2003[4]
§116(2) Best Interests of the Child
In deciding whether to make an order [relating to the welfare of a child], a court must regard the best interests of the child as the paramount consideration.
§§121-122 Determining the Best Interests of a Child
§121(2) [In determining a child’s best interests in cases relating to the welfare of a child, or where a parenting plan is registered in court], The court must consider (a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes … .
§122(1) The court may inform itself of wishes expressed by a child (a) by having regard to anything contained in a report given to the court under section 54(2); or (b) subject to the Rules of the respective Division, by such other means as the court thinks appropriate. (2) Nothing in this Part permits the court or any person to require the child to express his or her wishes in relation to any matter.
§125 Separate Representation of Children
(1) This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration.
(2) If it appears to the court that the child ought to be separately represented, the court may order that the child is to be separately represented, and may also make such other orders as it considers necessary to secure separate representation including the party to bear the costs of the child’s separate representation if the State does not provide for it.
(3) A court may make an order for separate representation on its own initiative or at the request of (a) the child; (b) an organisation concerned with the welfare of children; or (c) any other person.
§146(2) Child Welfare Laws Not Affected
Nothing in this Act, and no order under this Act, affects (a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; (b) any such order made or action taken; or (c) the operation of a child welfare law in relation to a child.
JUVENILES ACT, 1977 (1985)[5]
§19 Considerations of Welfare
Every court in dealing with a juvenile who is brought before it shall have regard to his welfare and shall, if it thinks fit, take steps for removing him from undesirable surroundings and for securing that proper provision be made for his maintenance, education and training.
Additional Resources and Links
Fiji Initial Report of States Parties, U.N. Committee on the Rights of the Child, U.N. Doc. CRC/C/28/Add.7 (1996).
Child Abuse Reports Increase, Fiji Times, Sept. 20, 2004, at 13
Fiji Women’s Crisis Centre: www.fijiwomen.com
Endnotes
[1] This page is also available as a .pdf Document, and Word Document.
[2] Fiji Initial Report of States Parties, U.N. Committee on the Rights of the Child, at ¶ 55, U.N. Doc. CRC/C/28/Add.7 (1996), available here.
[3] See Child Abuse Reports Increase, Fiji Times, Sept. 20, 2004, at 13.
[4] Family Law Act 2003, available at http://www.parliament.gov.fj/main/index.aspx, and also here, and also as .pdf Document, and also as Word Document.
[5] Juveniles Act (codified at Laws of Fiji ch. 56 (Revised Edition 1985)), available at http://www.paclii.org/fj/legis/consol_act/ and also here, and also as .pdf Document, and also as Word Document.