Kiribati

Kiribati[1] [print]

Last edited:  May 2005

Summary and Analysis

The Constitution of Kiribati[2] protects the right of persons to defend themselves in court when they are the subject of criminal charges.  Otherwise there is no constitutional provision for a right of participation in judicial proceedings.  There is no constitutional provision concerning any rights of children in particular.

Kiribati’s child custody law requires the court to make a full inquiry calling for all relevant evidence before issuing a custody order.[3]  It may be that this inquiry includes hearing from the child, but there is no affirmative indication that courts hear from children in these circumstances.  The law indicates that the child’s welfare should be the court’s paramount consideration in making custody orders.[4]  The law also permits the court to issue, vary, or discharge a custody order on the application of any person.[5]  It may be that “any person” includes the child whose custody is at issue, but there is no affirmative indication that this is so.  The child custody law also authorizes the Governor to make rules of court or regulations for the courts enforcing it, but there is no indication that these rules differ from the ordinary rules of court.[6]

Kiribati’s court system has four principal elements:  1) Magistrate’s Courts, the lowest level; 2) High Court, which hears appeals from Magistrate’s Court and also has original jurisdiction over civil and criminal matters; 3) Court of Appeals, which hears appeals from High Court, and 4) Privy Council, which hears certain constitutional matters appealed from High Court.

The rules of High Court provide that children may participate personally in legal actions.[7]  When suing as plaintiffs, they do so by next friends, and when acting as defendants, they do so by guardians appointed for the purpose.[8]  Nor do children appear in person in court, but instead appear either by guardians ad litem.[9]  It seems a child also may appear by an appointed special guardian.[10]  The rules do not clarify the distinction between a guardian ad litem and a special guardian.  Next friends and guardians of children are specifically authorized to give consent for evidentiary or other procedures.[11]

The decisions of Kiribati’s High Court and Court of Appeals[12] do not include cases in which the issue is whether child abuse or neglect has occurred; nor do they include cases in which the issue is whether parental rights should be terminated.  There are a small number of criminal cases in which men are accused (and/or convicted) of sexually assaulting or raping children in their custody (daughters and stepdaughters).[13]  But in none of these cases does the court mention custody.  It does appear that the child may give evidence in such a case.

Kiribati has not filed a country report regarding its compliance with the U.N. Convention on the Rights of the Child.  Despite our best efforts, we were unable to locate a local contact person to confirm our research.

Sources of Law

Statutes

Custody of Children Ordinance[14]

3. Custody orders

(1) A court may on application by or on behalf of any person make such order regarding –

(a) the custody of any child; and

(b) the right of access to the child of his mother or father,

as the court thinks fit having regard to the welfare of the child and to the conduct and wishes of the mother and father.

(2) Before making a custody order the court shall make a full enquiry into all the circumstances and shall call for any evidence or report it may in the interests of justice consider necessary.

(3) In exercising jurisdiction under this section the court shall regard the welfare of the child as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father is superior to that of the mother or the claim of the mother is superior to that of the father.

(4) A court may at any time on application by or on behalf of any person make an order discharging or varying a custody order.

6. Regulations

Without prejudice to any powers conferred by other laws to make rules of court or regulations governing magistrates’ courts the Governor after consultation with the Chief Justice may make regulations for those courts in respect of proceedings under this Ordinance

(a) regulating the jurisdiction of the courts;

(b) regulating the practice and procedure;

(c) regulating the forms to be used and all matters connected therewith;

(d) prescribing rules of evidence to be observed;

(e) generally for the better carrying into effect of the provisions, objects and intentions of this Ordinance.

Court Rules

High Court Order 17[15]

Rule 14.  Actions by infants.

Infants may sue as plaintiffs by their next friends and may, in like manner, defend by their guardians appointed for that purpose.  R.S.C. O.16, r.16.[16]

Rule 17.  Appearance by infant.

An infant shall not enter an appearance except by his guardian ad litem. No order for the appointment of such guardian shall be necessary, but the advocate applying to enter such appearance, shall make and file an affidavit in the Form No. 12, in Appendix A, Part V, with such variations as circumstances may require.  R.S.C. O.16, r.18.

Rule 18.  Guardian ad litem.

Every infant served with a petition or notice of motion, or summons in a matter, shall appear on the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for.  No order for the appointment of such guardian shall be necessary, but the advocate by whom he appears shall previously make and file an affidavit as in the last rule mentioned.  R.S.C. O.16, r.19.

Rule 20.  Consent of persons under disability to procedure.

In all causes or matters to which any infant or person of unsound mind or person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall if given with the consent of the Court by the next friend, guardian, or other person acting on behalf of the person under disability, have the same force and effect as if such party were under no disability and had given such consent.

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[16] Here and elsewhere, the “R.S.C.” annotation is to the Rules of the Supreme Court of England, indicating the order and rule of the source laws.  Note that the order and rule of the laws in Kiribati is different.