There is a Portuguese saying that “when the sea clashes with the rock , the clams suffer”. This is similar to the oft cited Kenyan adage that “when two elephants fight it is the grass that suffers”. Indeed, children are considered part of the “vulnerable” in the society and the most affected when there are issues with the family or the society as a whole.
The issue of custody of children is a very delicate issue that has garnered much attention especially with the prevalence of divorce in Ghana and the world at large.
Article 28(i) of the Constitution and Section 1 of the Children’s Act 1998 (Act 560) both define a child as a person below the ae of 18 years. The Act stipulates that the best interest of a child is to be considered paramount in all matters concerning a child.
The rights of the child are guaranteed by the Constitution and particularly Article 28 of the Constitution enjoins parliament to enact laws that are necessary to guarantee and make certain the rights of children in Ghana.
Ordinarily, every child has a fundamental right to grow up with his or her parents and no child should be stripped off this right, unless of course, living and growing up with the parents would result in significant harm to the child, subject the child to serious abuse, or not be in the best interest of the child. For that matter, the court treats custody issues with utmost priority as these issues are very important in ensuring that very important rights of the child are guaranteed.
In this article we examine the factors that a court would consider in giving custody of children to persons.
The Courts Act 1993 (Act 459), by section 18(1) clothes the High Court with the power to appoint guardians for infants, make orders concerning the custody of infants, the right of access to infants and periodical payment towards the maintenance of infants, make orders concerning the administration of the estate of infants, as well as setting them up in occupation or careers. In matrimonial cases where there are custody issues, Section 34 of the Matrimonial Causes Act, 1971(Act 367) the High Court is again empowered to make child custody arrangements whenever the child whose custody is in question is present in Ghana.
Section 47(2) of Act 459 as amended by section 125 of the Children’s Act 1998 (Act 560) also seems to empower a Community Tribunal which has the jurisdiction of a District Court to hear and determine any action arising under the Children’s Act. Though these two provisions above may reek of conflict, especially as to which forum to institute actions concerning children it is my humble opinion that this rather affords an applicant the opportunity to elect which of the fora to bring such actions especially since the High Court has jurisdiction in all matters except those specifically excluded.
As has already been stated, issues concerning a child ought to be considered while prioritizing their best interest as well as their welfare.
This was extensively discussed in the classic case of Braun v Mallet [1975] 1 GLR 81 where the court posited that in questions of custody it was well-settled that the welfare and happiness of the infant was the paramount consideration…… In considering matters affecting the welfare of the infant, the court must look at the facts from every angle and give due weight to every relevant material.
In arriving at its conclusion, the court considered very peculiar issues that were deemed relevant, after which it stated that “in the circumstances, and regardless of the domicile of the parties, it would be contrary to natural justice, equity and good conscience to deprive the plaintiff of the custody of her son and he should be returned to her forthwith.”
It may be surmised from the above proposition of the court that irrespective of the factors that have been laid down as the guiding principles in the grant of custody of children, each case should be treated with peculiarity according to the circumstances surrounding it.
Section 43 of the Children’s Act, 1998 (Act 560) provides as follows:
“A parent, family member or a person who is raising a child may apply to a family tribunal for custody of the child.”
Per the Act, it is not only a child’s parents who may apply to obtain custody of that child but any other person who is raising that child may actually do so.
According to Section 45 of Act 560, in addition to considering the best interest of the child as well as the importance of a young child being with the mother, a family tribunal has to consider the age of the child, the fact that it is preferable for a child to be with the parents except where the rights of the child are persistently being abused by the parent, the views of the child if the views have been independently given, that is desirable to keep siblings together, the need for continuity in the care and control of the child, and any other matter that the family tribunal may consider relevant.
In the paragraphs following, it would be shown through the discussion that, even though the court considers other factors in granting custody of children to persons the best interest of the child would always take precedence over all other factors. these factors which the court ought to consider in granting custody of children to persons would be discussed with the aid of decided cases.
One of the factors that may appeal to a court in granting custody of a child to a person is the age of the child. In many cases the court would usually grant custody of infant children to the mothers, all other things being equal. However, the best interest principle would still prevail regardless of the age of the child whose custody is in contention.
In Opoku-Owusu vs. Opoku-Owusu [1973] 2 349 where the wife prayed for the custody of the only daughter aged ten, the Court in arriving at its decision observed that in the normal course, the mother should have the care and control of very young children particularly girls or those who for some special reason need a mother’s care.
A different view was taken by the court in the case of Alexander Brutzer v Georgina Tetteh Haeusser & Anor [9/03/2012] Suit NO. BMISC.27/2010
In that case, the court refused to grant custody of a girl of about 10 years to the mother. The court stated as follows:
“In the instant case, I have considered the living conditions of the parties, and the backgrounds, the age of the girl Nikita, the country of her birth, the conduct of the parties especially that of the 1st defendant since the birth of Nikita and all other circumstances and have come to the conclusion that in all probability the welfare and well-being of Nikita weighs the decision as to custody in favour of the Plaintiff and I so decree. 1st defendant will however not be denied access to her child. Whenever Nikita desires to visit her mother in Ghana Plaintiff must give her every assistance to do so. Alternatively, Plaintiff must provide 1st defendant every necessary assistance to visit Nikita in Germany whenever she reasonably asks for that facility”.
So, in this case, even though the court considered the age of the child in the circumstance it was in the best interest of the child to be with the father and so the court refused the mother custody of the child and ranted her reasonable access.
Custody matters are mostly common in divorce cases where the marriage has produced issues. Usually the courts are saddled with the burden of pronouncing on who should get custody of the child, especially where there is disagreement between the parties.
Section 22(2) of the Matrimonial Causes Act, 1971 (Act 367) provides as follows:
“The court may, either on its own initiative or on application by a party to proceedings under this Act, make an order concerning a child of the household which it thinks reasonable and for the benefit of the child.”
Subsection (3) provides as follows:
“Without prejudice to the generality of subsection (2), an order under that subsection may
- Award custody of the child to any person;
- Regulate the right of access of any person to the child
- Provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage.”
It is important to note that, the same principles apply when considering the grant of the custody of children in divorce matters. The best interest and welfare of the child is ultimate in coming to that determination.
In the case of Happee v Happee [1974] 2 GLR 186 there was evidence that the child of the marriage was aged 19 years and was pursuing studies in a secondary school with the possibility of continuing her education in a university.The court posited as follows:
”nothing should be done to thwart the chances of the child to pursue further education or training. Though the petitioner was a non-Ghanaian there was evidence that he was responsible for the child’s education and maintenance and that the behaviour of the respondent was so uncontrollable and dreadful as to be likely to be detrimental to the well-being of the child. In the circumstances and in all probability the welfare and well-being of the child would be better served if custody was granted to the petitioner; but if at any time the child expressed her desire to visit her mother she must be given every facility by the father to do so.”
It is apparent that the court took into account what in the circumstances would be the best interest of the child in arriving at their decision. Even in arriving at that decision, the court was quick to note that the father ought to make provision for the child anytime she so wished to visit her mother.
Upon reading the cases, it would be noticed that the courts have towed in a particular direction though their decisions are usually on a case by case.
In the case of Christiana Soti v Henry Nartey Soti [3/02/2012] Suit No. BDMC/308/2010 the court stated as follows:
“What the court deals with is the lives of human beings and ought not to be regulated by rigid formulae. All the relevant factors ought to be considered and the paramount consideration being the welfare of the child. By paramount consideration, I mean pre-eminent ad superior consideration……..In making an order under section 44 of Act 560, the court shall take into consideration only the best interest of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. The court shall give effect to the principle that a child of a marriage should have as much contact with each spouse and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. The court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of the person to act as the parent of the child. I am satisfied that the best interest of the child in this instance is that the petitioner shall have custody of Tetteh Soti aged 5 years, and the respondent shall have reasonable and generous access to the child as the parties shall agree. I recognize that this aspect of the order may give rise to some difficulties, but in the best interest of the child, the parties must cooperate and diligently seek to overcome these difficulties, if the parties are unable to agree then this aspect of the order may be brought before me or the parties shall seek mediation before the department of Social Welfare to assist them in reaching an agreement.”
From the above, it is obvious that the court may consider many factors in granting the custody of a child to a person, but ultimately, it is the best interest of the child that would inform a court’s decision.
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