Ben Kudadze Vrs Agnes Ofosu [2022] GHADC 34 (17 October 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON WEDNESDAY THE 17TH DAY OF OCTOBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM PHILOMENA SACKEY AND MADAM LOVEGRACE AHALIJAH AS PANEL MEMBERS BEN KUDADZE GBAWE, ACCRA VS SUIT NO. A6/244/22 APPLICANT AGNES OFOSU NORTH-KANESHIE, ACCRA RESPONDENT Parties present. Sika Abla Addo Esq. for the Applicant Ernest Obeng Amoako Esq. for K. Amofa Agyemang Esq. for the Respondent. RULING This is a Ruling on an Application by the Applicant herein filed on the 5th of March 2021 for the following reliefs; 1. An Order for the Applicant to be granted reasonable access to his biological child. 2. An Order to compel the Respondent to avail herself and the child to the court for the naming of the child. 3. An Order for the Applicant to obtain a Birth Certificate for the child. 4. An Order to maintain the child at Ghc150.00 a month. Ben Kudadze vs Agnes Ofosu 5. An Order to pay medical bills not covered by the NHIS and to register the child with the scheme and renew same when it expires. 6. An Order to conduct DNA Test on the issue to ascertain paternity. The basis of the Applicant’s application as deposed to in his Affidavit in Support is that he was in an amorous relationship with the Respondent that resulted in the birth of the child in issue. He deposed further that the Respondent has refused the right to name his child and has also denied him access to the child for about Five (5) years now to the extent that he has never set his eyes on the child since his initial attempt at naming the child. The Respondent filed an Affidavit in Opposition on the 12th of March 2022 and also prayed for the following reliefs; 1. An Order directed at the Applicant to maintain the child at Ghc600.00 a month. 2. An Order directed at the Applicant to pay all educational bills and medical bills for the child including securing a medical insurance from the workplace of the Applicant for the child. 3. An Order directed at the Applicant to make a lump sum payment covering expenses incurred for the last Five (5) years that she has solely been taking responsibility for the child. 4. An Order directed at the Applicant to pay the full cost of DNA test on the issue to ascertain paternity. 5. An Order directed at the Applicant to pay for compensation for the Respondent should the DNA results prove positive. 6. Reasonable access of the child to the Applicant. 7. An Order for the Applicant to pay cost incidental to this suit including legal fees. 8. Such further Order(s) as the Court may deem fit. Ben Kudadze vs Agnes Ofosu The basis of the Respondent’s Opposition to the instant Applicant is that Applicant forcibly had sex with her resulting in the pregnancy of which she became emotionally and psychologically unstable and therefore could not entertain any form of conversation with the Applicant subsequently. She indicated that the Respondent’s support during the period of pregnancy and child birth was woefully inadequate of which she had to single handedly provide for the feeding and hospital bills during pregnancy and delivery. She continued that child took ill after delivery and before she could be discharged from the hospital the Applicant brought up the issue of naming and this resulted in serious misunderstanding between the parties because it appeared that the Applicant was only interested in naming the child without considering the welfare of the child. The Respondent deposed further that the Applicant disregards her, her family and the child in issue and has equally been irresponsible with regards to the welfare of the child to the extent that he has no idea what goes into the feeding, clothing, medical bills, educational materials and schools fees. She concluded by saying that the actions of the Applicant has caused her so much anguish, pain, emotional instability and distress and the child has suffered the absence and responsibility of a father which is required to help nurture her development. The Applicant filed a Supplementary Affidavit in Support on the 17th of March 2021 where he denied the Respondents averments and insisted that both parties had consensual sexual intercourse that resulted in the pregnancy and birth of the child. He deposed that he adequately maintained the Respondent during pregnancy and paid all the medical bills and expenses of the child whenever she got ill. The Applicant deposed further that the Respondent refused to allow him to name the child, subsequently took the child away and said she would be the only one to name the child. The Applicant indicated that the Respondent warned the Applicant and his family to say away from her and the baby as she was capable of taking care of her own baby. He continued that Ben Kudadze vs Agnes Ofosu the Respondent subsequently cut contact with him, denied him access and warned him never to step foot in her house of which all further attempts at naming the child and having access to her have been futile. He deposed further that sometime in January 2021, the Respondent among others, insisted he owes arrears of school fees and when he requested for directions to the child’s school for him to make payments, the Respondent refused and also refused to give him details of the school account to enable him pay the fees. He concluded by insisting that he is entitled to all the reliefs being sought at this instant court. DETERMINATION: The issues before this court in view of the Application and the averments of both parties in their respective Affidavits are as follows; (a) Whether or not the Applicant is the biological father of the child. (b) Whether or not the Applicant has the right to name the child. (c) Whether or not the child can be named within the premises of the court. (d) Whether or not the Applicant is entitled to reasonable access of the child. In determining the issues aforementioned, there was the need for the court to conduct an independent investigation into the background of all parties, hence the Order for a Social Enquiry Report (SER). The Social Enquiry Report (SER) The SER as submitted by the Probation Officer, Mr. Joseph Attoh on the 10th day of October 2022 made certain findings, among others, to the effect that the Applicant is currently married and lives at North Kaneshie with his wife in the chamber and hall self-contained. He is a Banker at Access Bank, Head Office, Accra and earns a salary of Ben Kudadze vs Agnes Ofosu GHȻ 4,800.00 a month. The respondent is also married but lives at Kasoa Tuba in a Three bedroom house with her mother and the child in question. She is a Banker at First National Bank, Head Office and she also does some online business as well as renders secretarial duties to some people. She earns a salary of GHȻ2700.00 a month from the Bank and the online business as well as the Secretarial duties fetches her about GHȻ1500.00 a month. The SER revealed that when the Respondent was pregnant, the Applicant maintained the respondent and paid her medical bills but the Respondent has consistently denied the Applicant the opportunity of naming the child because the Respondent wants to name the child after her mother. It was further gathered that the Respondent has named the child after her biological mother of which she is called Meg Tehila Offeibea Dartey, and same runs through all her documents but the Applicant wants the child to be known and called Tehila Eyram Kudadze. Analysis THE CHILDREN’S ACT, 1998 (Act 560) as enacted by Parliament and assented to on the 30th of December 2022, is an ACT to reform and consolidate the law relating to children, to provide for the rights of the child, maintenance and adoption, regulate child labour and apprenticeship, for ancillary matters concerning children generally and to provide for related matters. It is trite that in taking decisions concerning children, courts all over the world are guided by the Welfare principle which implies that the Court determines what would be best for the child despite both parents' good intentions and competing wishes. To that extent, Section 2 of Act 560 is on the Welfare principle and provides that ‘…the 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. Ben Kudadze vs Agnes Ofosu The first issue for determination is whether or not the Applicant is the biological father of the child. The Applicant as part of his reliefs prayed for an Order to conduct a DNA Test on the issue to ascertain paternity. The Applicant in his Supplementary Affidavit stated that the Respondent’s conduct over the years especially in denying him access to the child as well as naming the child made him to begin to doubt whether he was indeed the father of the child hence his request for DNA. The Applicant however subsequently failed to take steps for the DNA Test to be conducted and when the court questioned him about it, Counsel for the Applicant informed the court that she advised the Applicant to abandon that quest in so far as the Respondent has not denied that the Applicant is the biological father of the child. The evidence on record does not indicate otherwise and in other to ascertain the paternity of the child, the court decided to question the Respondent and she admitted in open court that the Applicant is indeed the biological father of the child in issue. The conclusion therefore is that the Applicant herein is the biological father of the child in issue. Since the paternity of the child has been ascertained, it leads us to the next issue for determination which is whether or not the Applicant has the right to name the child. It must be emphasized that the acknowledgement of paternity implies a duty on the father to name the child. To be able to make a determination on this issue, there is the need to appreciate the laws of this country as stated in Article 11 of The 1992 Constitution which lists the laws of Ghana to include the Constitution; enactments made by Parliament, any Orders, Rules and Regulations made authority under a power conferred by the Constitution, the existing law; and the common law which comprises of the doctrines of equity and customary law. In view of the above constitutional provision, it is obvious that Ghana operates a plural legal system, a situation in which two or more legal systems co- exist in the same social field and in Ghana, this is revealed in the existence of customary law and statute law rules sometimes on the same subject. Authorities have stated that Ben Kudadze vs Agnes Ofosu since Ghana attained Republican status, the customary laws of various communities have been treated as part of the laws of the country and the only test for their validity is whether they fulfil those conditions which come under the general law of the land including the Constitution and not contrary to national aspirations or public policy. The right of the child to bear its biological father’s name is guaranteed by Statute and specifically Section 4 of the Children’s Act, 1998 (Act 560) which states that ‘…no person shall deprive a child of the right from birth to a name, the right to acquire a nationality or the right as far as possible to know his natural parents and extended family…’ At custom, naming of a child is almost always by the child’s father or the child’s father’s family and this becomes a legal acknowledgment by the father of the paternity of the child. The child also has the right to have her father's name which identifies the child to being the child of the father and a member of her father’s family. The evidence on record indicates the paternity of the child to be that of the Applicant and even though the parties are not married, the absence marriage cannot deprive a father from naming a child. The learned Ollennu in his book, The Law of Testate and Intestate Succession in Ghana at page 206 states as follows: ‘…to become recognized as the father of a child, a man must perform the naming ceremony on the eighth day of its birth or on a subsequent day, and give the child a name . . .’. Similarly, in QUARSHIE v. BOSSO [1992] 1 GLR 77, the learned Omari-Sasu J. opined that ‘…the naming of the child by the father, even without marriage to its mother, is legal acknowledgment by the father of the paternity of the child; that ceremony identifies the child with the father and his paternal family, … and makes it his lawful child…’ The Children’s Act admittedly, is silent on who bears the obligation, or the right to name a child but the customary law position in the overwhelming majority of Ghanaian communities is that the father holds that right to name the child. This customary law, in the opinion of the court is one that is not in conflict with the welfare principle. Section 54 of the Courts Act, 1993, provides that customary law may be applied by state courts, ‘if legal norms Ben Kudadze vs Agnes Ofosu comply with the requirements of ‚equity and good conscience‛ and they are not incompatible with any existing law’. The Applicant therefore has every right, both at law and custom to name the child in issue and the name must be registered pursuant to Section 6(4) of Act 560 which provides that ‘… each parent shall be responsible for the registration of the birth of their child and the names of both parents shall appear on the birth certificate except if the father of the child is unknown to the mother…’. The next issue for determination is whether or not the naming of the child in issue can be done within the premises of the court. The Applicant submitted that since the Respondent and her family have denied him the right to name his child despite several efforts, he then prays for the naming of the child be done within the premises of the court. The evidence on record shows that the Respondent and her family have proceeded to name the child as Meg Tehila Offeibea Dartey but the Applicant herein wants the child to be named and called Tehila Eyram Kudadze. Section 35 of Act 560 provides that ‘…a Family Tribunal shall have jurisdiction in matters concerning parentage, custody, access and maintenance of children and shall exercise such powers as are conferred on it by this Act or under any other enactment. Accordingly, if the jurisdiction of the District Court turned Family Court, per the Courts Act extends to ‘any actions that arise under the Children’s Act’ then a fortiori, the District Court can hear all matters that touch on issues raised under the Children’s Act, whether or not the Act expressly confers such jurisdiction. What actually bothers the Court is whether or not such is in the best interest of the child in issue. The child in issue is yet to be named by her biological father as the law and custom demands solely because the Respondent and her family members have refused. This child has been denied her rights and the Respondent has also denied the Applicant the opportunity to exercise his rights and responsibilities as a father. The question again is, to what extent is the position of the Respondent and/or her family in the best interest of the child in issue? Ben Kudadze vs Agnes Ofosu Although there is no written law to refer to as a basis for the naming of a child in court as well as the fact that the Family Court seem not to have expressly been granted jurisdiction in such matters under the Children’s Act itself, naming of a child forms part of the matters that arise under the Children’s Act and resultantly, the court can proceed to name the child in so far as it will be in the best interest of the child to do so. The right of a father to name the child and the naming ceremony itself are symbolic and signifies the acceptance and inception of the paternal relationship between the baby and the father. It also signifies the personal recognition of the man as the father of the child, and the baby as the legitimate child of the father. Again, the Act establishes as a right due a child, the opportunity to know his natural parents and the extended family of which the stance of the Respondent and/or her family members is not in the best interest of the child. The next issue for determination is whether or not the Applicant is entitled to reasonable access of the child. It is the case of the Applicant that the Respondent has denied him access to the child in issue. The Court on the 27th of September 2021 granted interim visiting access to the Applicant where it was required of him to meet the child every Sunday at the West Hills Mall between the hours of 2pm to 5pm. The Applicant however informs the court that the Respondent has refused to comply with the Orders of the court and as such he has been unable to consistently have access to his daughter. Section 44 of Act 560 provides that ‘a parent … may apply to a Family Tribunal for periodic access to the child…’. In fact, the Probation Officer indicated in the SER that it appears the Respondent has polluted the child’s mind towards the Applicant. The SER further gathered that in as much as the Applicant is willing to interact with the child, the Respondent does not permit such neither does she give both father and daughter some form of privacy. There is therefore the need for the court to consider a time arrangement that provides for the child to have some substantial and significant time with the Ben Kudadze vs Agnes Ofosu Respondent who is her biological father, so as to build a meaningful relationship in accordance with the best interest of the child. The Court observes that the parties have a severed relationship and when this happens, the parties are unable to see eye to eye on what is best for the child regarding regular contact by the father. The mother would either blatantly refuse the father access or would place strict measures on when and how the father can see the child. When such a situation arise, as in this instant case, the option left for the child’s biological father is to approach the Court for relief. It is important to state to both parties/parents that at common law, the father was generally entitled as a matter of right to custody of his minor children but later the law generally gave the mother preference. Many people assume that mothers have greater child custody rights than fathers probably because mothers are perceived as the primary caretaker of children of the family whilst the father worked outside of the home and provided for the family. It must be emphasized there is no gender preference in custody laws and what the law recognizes is the child's best interest as the determinative factor. According to Author Despert, in the book, Children of Divorce (1962) ‘… the best interest of the child doctrine cannot be applied within its historical and present spirit and purpose unless the law places both parents on equal footing…’ In fact, Article 18 of the United Nations Convention on the Rights of the Child (UNCRC), of which Ghana is a signatory, provides ‘… that parents have a shared and core responsibility for the nurturing of their children…’. The point being made is that no one parent should feel or think that s/he has a higher right or responsibility of the child as against the other parents, both parents have equal rights and responsibilities over their children. The duty of the court is to make decisions using a case-by-case analysis of the facts surrounding custody and/or access and will then determine what sort of arrangement is in the child’s best interests. Ben Kudadze vs Agnes Ofosu It appears the circumstances surrounding the pregnancy, birth and illness of the child after her birth may have made the Respondent to take a particular stance, but she has no right whatsoever to do deny the Applicant his rights, responsibilities and obligations. It is important to state that Ghana has a plural legal system which creates various avenues for seeking legal redress, so that if the Respondent has personal issues or some scores to settle with the Applicant for impregnating her, she is at liberty to seek redress against the Applicant in a different forum for ‘forcibly having unprotected sex with her without her consent’ because what bothers and concerns this instant court is the welfare of the child in issue. The Respondent cannot use the child as basis for settling her personal scores with the Applicant as the child is an innocent offspring of the parties and should not be made to suffer for what appears to be an indiscretion exercised by her parents. The court before concluding will want to comment on what appears to be the stance, position and role of the Respondent’s biological mother. The court appreciates the roles of grandparents in the life of a growing child as in most cases such grandparents assists parents and are willing to do anything for the said child. It however appears again to the court that it is the Respondent’s mother who makes major decisions as far as the child in issue is concerned. It must be stressed, emphasized and stated categorically that decisions concerning the welfare of a child are limited to the biological parents of the child to the exclusion of all others. Yet, although the assistance, guidance and support of persons such as grandparents, uncles, and members the extended families are needed and welcomed, they cannot make ultimate decisions concerning the child as such is the sole preserve of the biological parents of the child. The Applicant, being the biological father of the child cannot, must not and should not be side-lined to the extent that it is the Respondent and her mother who rather take decisions as far as the child is concerned. The child in issue has a right to grow up knowing the father and this is Ben Kudadze vs Agnes Ofosu buttressed by Section 5 of Act 560 which provides that ‘…no person shall deny a child the right to live with his parents and family….’ Section 6(1) of Act 560 further provides that ‘…no parent shall deprive a child his welfare whether –a) The parents of the child are married or not at the time of the child’s birth; or b) The parents of the child continue to live together or not…’. DECISION: Upon consideration of the Application, the evidence before the Court, the SER and pursuant to the provisions of Act 560, the Court is satisfied that it will be in the best interest of the child to grant this instant Application. Consequently, the court orders as follows; 1. The Respondent is hereby ordered to arrange with her family members for the Applicant to name his child customarily and same should be done on any day from the 18th of October 2022 to 30th of October 2022. OR IN THE ALTERNATIVE The Respondent is ordered to come along with the child and at least Two (2) members of her family for the child to be named within the premises of the court on any day from the 1st of November to 18th day of November, 2022 and a desired day is to be agreed to by both parties. The Court Connected Alternative Dispute Resolution (ADR) Office is hereby ordered to arranged and coordinate the naming of the child in issue and the parties must pre-inform the ADR Office of the desired day for the naming of the child. Ben Kudadze vs Agnes Ofosu 2. The child shall with immediate effect be known and called Tehila Eyram Kudadze and the said name must be registered pursuant to the provisions of Section 6(4) of Act 560. 3. The Respondent shall immediately introduce the Applicant as the biological father of the child to the authorities of the school the child is currently attending and ensure that all records of the child in the school bear the names Tehila Eyram Kudadze. 4. The child’s name on all other records and/or official documents must as soon as practicable be changed to reflect the names Tehila Eyram Kudadze. 5. The Respondent is to have custody of the child and the Applicant shall have reasonable access to his biological child every other weekend with effect from the first weekend after the naming ceremony of the child has been held. He is to pick the child up from school on Fridays and return the child to school on Mondays. The Applicant shall also have access to the child during half of her school vacations. 6. The Applicant is to maintain the child with an amount of Four Hundred Ghana Cedis (Ghc400.00) and same is to be paid into court within the first week of every month with effect from November 2022. 7. The Applicant is to pay the school fees, the cost of exercise books, text books, Robotics as well as UCMAS and other incidental school expenses of the child in issue and same is to be paid directly to the school whilst the Respondent pays the Ben Kudadze vs Agnes Ofosu feeding fees, transportation, school uniforms, sandals and other necessaries of the child. 8. The Respondent shall register the child under the National Health Insurance Scheme (NHIS) and renew same when it expires. The Applicant shall be responsible for all the bills not covered under the NHIS which the Respondent shall present to him within a week of having incurred the expenditure. The Respondent shall ensure that the medical facility and pharmacy she accesses shall be one that the Parties have agreed on except in emergency situations and she shall inform the Applicant as soon as it is practicable to do so. OR IN THE ALTERNATIVE; the Applicant is to secure a Medical Insurance from his workplace for the child. 9. Parties are ordered to reconcile accounts at the Cashier’s office and any or all arrears owed by the Applicant must be paid into court on or before the 31st of December 2022. ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… MADAM FELICIA COFFIE PANEL MEMBER ……………………….. MR. WISDOM ATIASE PANEL MEMBER Ben Kudadze vs Agnes Ofosu 14