Adua Vrs Aserekama [2022] GHADC 315 (1 November 2022)

IN THE FAMILY TRIBUNAL COURT, HELD AT BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON TUESDAY, THE 1ST DAY OF NOVEMBER, 2022. CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (CHAIRMAN) MADAM MERCY PAWAVRA (PANEL MEMBER) MADAM MARY A. ALOSUM ANABA (PANEL MEMBER) MR. APIIGAH ABANGA EDMUND (PANEL MEMBER) SUIT No. UE/BG/DC/A6/21/2019 ADUA ATIAH HARUNA PLAINTIFF VRS. PLAINTIFF PRESENT DEBORAH ATIAMAH ASEREKAMA DEFENDANT TIME: 09:16AM DEFFENDANT PRESENT NO LEGAL REPRESENTATION Introduction JUDGMENT 1. The Plaintiff commenced this action on 7th day of June 2019 and claims against the Defendant as follows: ADUA ATIAH HARUNA VRS. DEBORAH ATIAMAH ASEREKAMA (SUIT NO. A7/21/2019) Page 1 of 7 a. An order for custody of Wasila Haruna aged 12 years ( now 14 years) b. Any other order the court may deem fit. Background facts 2. The Plaintiff says he wants custody of the child in issue because the Defendant was his wife but later she said she does not love him again. Plaintiff says when the Defendant said she does not love him again, he told her to give the custody of their two children to him. The children were attending school then. Plaintiff says the Defendant gave one of the children to him but refused to give the child in issue to him, and so he reported the matter to Social Welfare. Plaintiff says the Defendant was invited to the office of the Social Welfare and she was advised to give custody of the children to him. Plaintiff says further that according to Fafra custom, if your wife says she does not love you again, the man is to take custody of the children to take care of them. And since the Defendant says she does not love him he is praying the court for custody of the child in issue so that the child in question can come and live together under one roof with him and the other children. 3. On the other hand, the Defendant case is that the child in issue has been living with her for the past ten years. Defendant says that the child is attending Quality Brain Academy and she is in JHS 2. Defendant says that she wants the child to be with her and complete JHS before custody could be given to the father. Defendant says that if custody of the child is granted to the Defendant now, her education will be affected but if she completes the school or JHS she can go to live with the Plaintiff. Analysis of the issue in the light of the welfare principle ADUA ATIAH HARUNA VRS. DEBORAH ATIAMAH ASEREKAMA (SUIT NO. A7/21/2019) Page 2 of 7 4. Before we proceed to deal with the vexed matters presented by this suit, it bears reminding that regarding issues concerning children, the Court must seek solely what is in the paramount interest of the child. Section 2 of the Children’s Act, 1998 (Act 560) provides that: [t]he best interest of the child shall be paramount in any matter concerning a child. The best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child. Section 2 of the Children’s Act is based on Article 3(1) of the Convention on the Rights of the Child (adopted by the General Assembly Resolution 44/25 of 20th November, 1989 and entry into force on 2nd September 1990) which provides that, [i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 5. The United Nations Committee on the Rights of the Child in its General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) elucidates the concept which is said to be three-fold: Firstly, it is considered a substantive right in the sense that the child has a right ―to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an ADUA ATIAH HARUNA VRS. DEBORAH ATIAMAH ASEREKAMA (SUIT NO. A7/21/2019) Page 3 of 7 intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.‖ Secondly, it is considered as ―[a] fundamental, interpretative legal principle‖ in the sense that ―[i]f a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen;‖ and thirdly, it is ―[a] rule of procedure‖ such that ―[w]henever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account.‖ 6. Being guided by the Commentary above, the question for the panel is whether it would be in the best interest of the child to grant custody of the child to the Defendant. To resolve this issue, the panel is mandated by section 45 Children’s Act, 1998 (Act 560), to—as a matter of paramount importance— consider the best interest of the child and the importance of a young child being with his mother when making an order for custody or access. To achieve this end the panel is mandated to also consider – “(a) the age of the child; (b) that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents; (c) the views of the child if the views have been independently given; (d) that it is desirable to keep siblings together; (e) the need for continuity in the care and control of the child; and (f) any other matter that the Family Tribunal may consider relevant.” ADUA ATIAH HARUNA VRS. DEBORAH ATIAMAH ASEREKAMA (SUIT NO. A7/21/2019) Page 4 of 7 7. The starting point according to section 45 above is that considering the age of the child in issue, ordinarily, he ought to be with the Defendant. However, that is a prima facie conclusion sustainably only when the other factors or parameters contained in section 45 inure to the presumption in favour of Defendant. The assessment of all the factors to determine what would be in the paramount interest of the child involves the exercise of judicial discretion after all the relevant factors have been considered: see: Re F (an infant) [1969] 2 All ER 766; Attu v Attu [1984-86] 2 GLR 743; and Young v Young [1993] 4 S. C. R 3 at para 71 per L’Heureux-Dubé J 8. The determination as to who should have custody of a child is merely an answer to the question: ―what should be the best interest of the child‖? It does not in any way terminate parental duties owed by the parent against whom the order is made: see Re W (Minors) (Residence Order) [1992] 2 F. C. R 461 at 465 per Butler-Sloss LJ. 9. After considering the evidence led by both parties, we found the following facts: The child is 14 years and have been living with the Defendant for the past ten (10) years. The child is attending school at Quality Brain Academy, Bolgatanga and she is in JHS 2. The Plaintiff is married with other children. The Plaintiff is farmer but finds it difficult to provide the basic needs of the child. The Defendant has been taking care of the child for the past 10 ten years. Conclusion 10. Having examined the whole evidence adduced by the Plaintiff and the Defendant on record in accordance with above authorities as well as in the full consideration of the welfare of the child in issue, we have decided as follows: ADUA ATIAH HARUNA VRS. DEBORAH ATIAMAH ASEREKAMA (SUIT NO. A7/21/2019) Page 5 of 7 a. That the status quo be maintained. In other words, the application for custody of the child in issue by the Plaintiff is hereby dismissed. We accordingly grant custody of the child in issue to the Defendant. b. That to ensure compliance with the dictates of section 5 of the Children’s Act which grants a child the right to grow with his natural parents, we hereby grant access to the child in issue to Plaintiff who shall accordingly have the right to live with the child not later than two days into his vacation except that Plaintiff shall return the child to Defendant not later than five (5) clear days before school reopens. c. It is also ordered that Plaintiff shall pay maintenance allowance of Three Hundred Ghana Cedis (GHC300) a month to the Defendant for upkeep of the child, effective from 1st November 2022. d. Cost One Thousand Five Hundred Cedis (GHC1,500.00) is awarded in favour of the Defendant against the Plaintiff. …………………………………… HIS WORSHIP MAWUKOENYA NUTEKPOR (CHAIRMAN) ADUA ATIAH HARUNA VRS. DEBORAH ATIAMAH ASEREKAMA (SUIT NO. A7/21/2019) Page 6 of 7 ………………………… MADAM MERCY PAWAVRA (PANEL MEMBER) ……………………… MADAM MARY A. ALOSUM ANABA (PANEL MEMBER) …………………………. MR. APIIGAH ABANGA EDMUND (PANEL MEMBER) ADUA ATIAH HARUNA VRS. DEBORAH ATIAMAH ASEREKAMA (SUIT NO. A7/21/2019) Page 7 of 7