A court decision says the practice contravenes Vanuatu's Constitution and the UN Declaration on the Rights of the Child.
The judges comments were delivered during the sentencing of a driver who ran over a killed a child.
Speaker:Tony Wilson, editor, Vanuatu Independent
WILSON: Just to give your listeners a bit of background here, this tragic accident happened earlier this year and a driver was taking a short cut through someone's yard, which was common practice and a little 7 year-old girl was wrapped up in a mat, lying in the grass, and although they noticed the mat, they didn't try and avoid it or go round it. They drove over it and unfortunately drove over the little girl.
Now Justice Mary Say, in the Supreme Court, was not only critical of the whole thing, but wanted to know why the driver, who had six children of his own hadn't handed over one of his children and it was explained that the relative, a relative, who was a front seat passenger and was supposed to be the lookout had failed to realise there was a child wrapped in the mat, and therefore it became the relative's responsibility and he ended up handing over one of his children.
EWART: It's an extraordinary tangle. But bearing in mind what has happened now during the course of this court case. I mean can we expect some definitive change in the legal standing of this particular practice?
WILSON: Yeah, the courts have signified now, twice in the last two years, that they were going to start to look at this practice and take action. They said it contravened the fundamental rights of Article 5 of the Constitution and it also contravened the United Nations Charter on Children and that they warned that they would be taking action.
Interestingly enough, our journalist contacted one of the senior chiefs from Tanna, John Lomi? and he said that no court decision would ever change Tannese custom and he explained that his own mother had been an example of this particular custom. I might add this custom on Tanna only involves females, so even if it was male child that was killed, the exchanged child would be female.
Now there is a somewhat similar system in New Zealand with the Maoris, but it appears to be more of an adoption system if a person has too many children or they're too young or there's orphans involved. This is really straight compensation for some sort of violent death and it would appear that we are going to see a clash between the court system and custom.
EWART: Now, I think it stands to reason that countries outside Vanuatu might look on this practice and regard it quite frankly as something extraordinary and something rather out of date to say the least. But what's interesting to me is the fact that it's taking place in Tanna, but not elsewhere in Vanuatu. So how does the rest of Vanuatu view this practice?
WILSON: Hmm, from what I can gather. This is the second time I've dealt with it in the last three years, people from the other islands here quite definitely distant themselves from that practice and would agree with the attitudes of the rest of the world.
EWART: So is there as it were growing pressure on the people of Tanna, to as it were leave this cultural practice behind. I mean you've already indicated that as far as the Council of Chiefs are concerned, they're going to go they're own way. But can the law force them to change?
WILSON: Oh, I doubt it to be honest. The Tannese are pretty much a law unto themselves and are well known for that here and I don't think they will take too much notice what the rest of the world thinks at all.
EWART: And as far as the government is concerned, therefore. How heavyhanded do you they might get? I mean plainly, if the UN, for example, gets involved. We've talked about the UN Declaration on the Rights of a Child, it will bring an enormous amount of unwanted international attention to Vanuatu?
WILSON: That's right. I mean the UN got involved when we had a similar case in 2010, but to be honest, it didn't go anywhere. After some headlines and some noise at the time, it just went back to status quo, so it's hard to know what will happen. We have a different government clearly. They haven't said anything about this particular case as yet. So it's hard to know. But I know the Tannese are very, very strong on custom. It's a huge part of their day to day life and they won't be flayed by outside influences to any great extent.
EWART: Has there been in the recent past or in the distant past any comeback as far as the children involved in these cases are concerned. I mean once they discover, I guess if they ever do, but I mean once they discover what has happened to them, I mean it must be very traumatic to realise they've been effectively given away by their families?
WILSON: Yeah, I would imagine that's the case. It seems that it is a reasonably common practice in Tanner, but there's no knowledge or evidence that they've had any real problems and they are apparently allowed to see their real parents. They're not sort of cut off from them totally. They just don't actually live with them and it is up to the new parents to look after them. Of course, the rest of the world would think why would anyone want to look after someone who comes from a family involved in the death of my child and that's where the rest of the world would really view this whole matter as completely strange.