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The drafting of the CPW Act is based on the best interest principle. Section 4 states that
the best interest of the child shall be the primary consideration for all persons, courts,
parents, institutions and other bodies in any matter concerning a child. This is
intrinsically linked with Section 5 regarding a child's evolving capacity, whereby as a
child ages they become more capable of making decisions for themselves. That is, the
better capacitated a child is to consider a situation regarding their own well-being, the
more weight should be given to that child's opinion. A child's view on their own adoption
for instance must be sought where the child is over the age of ten (10) years and given
the appropriate weight based on the child's capacity.
Decisions surrounding a child during a parental marriage break-up must be made based
on the principle of the best interest of the child in accordance with the Legal Capacity of
Married Persons Act (2006) and CPW Act. The Court of Appeals maintenance case of
Mapetla v Leboela [2012] LSCA 2 discussed the Court's duty to conduct investigation
beyond evidence placed before it, if necessary, to ensure that the order serves best
interests of the child.
A child's evidence should be given in camera under the Sexual Offences Act (2003)
where it is deemed to be in that child's best interest.
Administration
The National Strategic Plan 2012-2017 on VC explicitly states the best interests of the
child as a guiding principle. It suggests that empowerment of families and communities,
child participation, political commitment and multi-sectoral and decentralised
approaches are necessary for its fulfillment.
The Fostering and Adoption Policy of Lesotho follows this same guiding principle in its
administration and monitoring of local and international adoptions.
A distinct Children's Courts has been established in the capital Maseru, which employs
child-friendly court practices in a less formal environment, based on the best interests of
the children before it.
Difficulties
Despite efforts, a continued lack of broad dissemination of policy and legislative texts
leads to limited knowledge and understanding of these underlying principles. Cultural
practices and social attitudes regarding a child's role in the community mean that the
value of children is not given sufficient weight. The long-term damage done by harm
inflicted to young children is misunderstood and underestimated.