n African Human Rights Law Journal - Towards defining the 'right to a family' for the African child

Volume 12, Issue 2
  • ISSN : 1609-073X
  • E-ISSN: 1996-2096



Most international instruments and national legislation dealing with children recognise the need for children to grow up in a family environment - in an atmosphere of love and understanding. In different regions around the world there are various family structures and patterns - traditional families with the heterosexual marriage form as the cornerstone; extended families with up to four generations in one household; and a mixture of family forms (cohabitation, homosexual ('lesbigay') unions, non-residential father households, single parented households, childheaded households, to mention a few). This article argues that every child has a right to a family which includes other familial rights, such as the right to family life and the right to a family environment. It begins with a brief overview of existing family forms, followed by an examination of the functions of the family. From that premise, it explains the need for understanding family from a functional rather than a structural viewpoint. It argues that, for the effective realisation of all familial rights enjoyable by the child, the concept 'family' must be defined. The definition must be based on its function, and tailor-made by each state to suit its societal circumstances. The article concludes that such a definition would provide clarity to the concept and aid in avoiding the legal limbo which sometimes affects children's familial status. Legal references in the article are mainly to international documents, regional documents and legislation from selected African countries.

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