EMELIA ACQUAH ASARE VRS SIMON ASARE (C11/110/2022) [2022] GHACC 343 (7 July 2022)

IN THE CIRCUIT COURT (8) HELD IN ACCRA ON THE 7TH DAY OF JULY, 2023, BEFORE H/H JOJO AMOAH HAGAN SUIT NO. C11/110/2022 BETWEEN EMELIA ACQUAH ASARE……………………. APPLICANT H/NO. 12, AVIATION LOOP OKPOI GONNO, SPINTEX ACCRA AND SIMON ASARE………………………………RESPONDENT H/NO. 12, AVIATION LOOP OKPOI GONNO, SPINTEX ACCRA JUDGMENT 1. On 27 June 2022, this Court differently constituted granted an Interim Protection Order against the respondent pursuant to a motion ex parte filed by the applicant herein. Barely two (2) months before the expiration of the Interim Protection Order which was to expire not Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 1 of 16 later than 3 months from the date of the Order, the applicant filed a motion on notice for a final protection order on 5 August 2022. In the affidavit in support, the applicant averred that she filed her motion on notice in anticipation of the expiration of the interim order. In my opinion, to the extent that the said motion on notice was filed in anticipation of the expiration of the interim order and pursuant to the said order, the motion is irregular. 2. The procedure governing protection orders under the Domestic Violence Act, 2007 (Act 732) is stipulated in sections 12 and 14 of the Act. By subsection (3) of section 12 of the Act, unless the Court otherwise orders, the motion for a protection order must be made ex parte. A party cannot motu propio file a motion on notice for an interim protection order. However, I suppose since the Court has the power to order for the respondent to be notified of the motion, it may well choose to waive as a mere remediable irregularity when the said motion is filed on notice to the respondent since it would serve a greater purpose and adhere to the norms of natural justice. 3. Upon hearing the motion ex parte for a protection order, the Court is mandated to issue an interim protection order if it considers the order to be in the best interest of the applicant—see subsection Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 2 of 16 (1) of section 14 of Act 732. An interim protection order being valid for only three (3) months, the Court is mandated [upon a motion ex parte] to summon the respondent to appear before it within three months from the order to show cause why the interim order should not be made final. However, the Court may issue an interim protection order pending the consideration of the motion for a protection order where the Court has ordered notice of the motion to be served on the respondent or where the Court has ratified an irregularly filed motion on notice without its leave. There is no time limit for the validity of an interim protection order where the respondent is notified of the motion nor is there a requirement that the respondent be summoned. The basis for this goes without saying. The motion on notice would, therefore be with regard to whether the Court should make a final protection order under section 16 of Act 732. 4. In the instant case, the applicant filed a motion ex parte for an interim protection order which was duly granted. Unfortunately, before the expiration of the three (3) months period within which the Court was mandated to issue a summons for the respondent to appear to show cause why the interim protection order should not be made final, the applicant purported to file a motion on notice for a final protection order, a process unknown to the relevant legal regime Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 3 of 16 adumbrated above. Being guided by the fact that the purpose of a summons to show cause under subsection (4) of section 14 of Act 732 is to hear the respondent as to whether the order for a protection order should be made final, and considering that from the record the respondent filed his affidavit in opposition to the motion for a final protection order within three (3) months from the date of the order for an interim protection order wherein, together with other supplementary affidavits, he did show cause whether satisfactorily or otherwise, I shall treat the various affidavits filed by the respondent as satisfying the procedural requirements under section 12 and 14 of the Domestic Violence Act. It follows inexorably therefore that the only duty of this Court is not to rehear the motion for a protection order which has been granted but to consider whether it ought to be made final in the light of the cause shown by the respondent. Accordingly, the motion for a final protection order filed by the applicant on 5 August 2022 is irrelevant and irregular and thereby set aside. 5. I have noticed that the Court made an order for both parties to be psychologically assessed pursuant to subsection (4) of section 13 of the Domestic Violence Act. The final psychological reports on both parties have been duly presented to the Court. The law prescribes what such a report should entail. By subsection (5) of section 13 of the Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 4 of 16 Domestic Violence Act, “*t+he report shall contain details of the circumstances of the domestic violence, an assessment of the effect of the violence and any other information considered expedient by the … clinical psychologist” (emphasis added). Thus, whereas a clinical psychologist has the discretion to determine to include “any other information considered expedient”, he has no discretion to exclude from the report “details of the circumstances of the domestic violence [and] an assessment of the effect of the violence….” I have examined the final psychological reports on both parties and none of them satisfies the mandatory conditions regarding details of the circumstances of the domestic violence and an assessment of the effect of the violence. Accordingly, the reports violate subsection (5) of section 13 of the Domestic Violence Act and are thereby set aside. 6. In my opinion, there is no complexity regarding whether the interim protection order in respect of the applicant should be made final. Although the parties are a married couple, a person, regardless of their marital status, has the right to freely associate with or dissociate from whomever she pleases. It is “an essential prerequisite for other fundamental freedoms”1 Therefore, by way of illustration, Joint Guidelines on Freedom of Association adopted by the Venice Commission< venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)046- e> accessed 6 July 2023 Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 5 of 16 notwithstanding that a court may dismiss a petition for divorce on the basis that the marriage between the couple has not broken down beyond reconciliation, the court cannot compel the couple to associate. They may merely remain married “on paper”. Most importantly, however, is the fact that the applicant alleged physical assault against the respondent both on oath and in her report to the medical practitioner who determined after examination [per exhibit 2 in the affidavit in support of the motion ex parte for an interim protection order] that the applicant had “moderate chest compression tenderness … *and+ was managed as a case of chest contusion”. This corroborates her allegation of assault against the respondent which was proximate in time to the day of the assault. However, restraining a parent from contacting his child for a year ought to be considered more carefully. 7. From the affidavit in support of the motion ex parte for an interim protection order the applicant—the mother of the child-in-issue—seeks to restrain the respondent—the father of the child— from having physical contact with the child on the basis that the respondent “physically abused [the child] by beating her and spitting on her”. He was also alleged to have slapped the child. This appears to be the tip of the iceberg for the respondent is alleged to have Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 6 of 16 additionally instructed the child to “leave the house, threatened to break her legs, took an umbrella and chased her with it, and pushed her into a nearby gutter.” This caused harm to the child who had to run away to safety with great difficulty and caution. 8. To prove these allegations, the applicant exhibited a police medical form and a medical report of the child wherein the child reported to the medical officer that she was assaulted by her father. The child complained of “having been physically assaulted by her father … [and] resolving bilateral wrist pain....” After examination, the medical officer observed that “she was clinically stable with no obvious marks or lesions on the body. Both wrists are fully functional with no obvious swelling or tenderness.” 9. In his affidavit in opposition filed on 12 September 2022, the respondent denied abusing the applicant. According to the respondent, the applicant rather subjected him to emotional and psychological abuse. He alleged further that the applicant had taken up a new religion and was engaged in conduct that did not endear her to him. On one occasion when he complained bitterly about that conduct, the child in issue slapped him. Fearing that he would discipline the child for that reason, the applicant and the child left the Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 7 of 16 matrimonial home in his absence at the instigation of the applicant and procured the instant interim protection order. The respondent recounted various incidents of alleged domestic violence against him and averred that he was rather a victim of domestic violence considering that the applicant and their children subject him to emotional torture, disrespect, and psychological abuse to the extent that on one occasion he collapsed out of shame. 10. Regarding the maintenance of the child in issue, the respondent asserted that he was responsible and did honour all her needs including her accommodation and feeding. In any case, as he averred, the child is in a boarding house. When she vacates from school, the respondent was prepared to offer his house at Kasoa to the child, and the applicant as their lodging, an offer which was confirmed by his counsel at the hearing of the motion. The respondent was nonetheless unwilling to be solely responsible for the maintenance of the child in issue because that responsibility lay with both parents. However, the respondent opposed the applicant’s prayer for maintenance for herself given that she was a worker and a teacher who thus did not require maintenance and could take care of herself. Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 8 of 16 11. The respondent asseverated further that reliefs (a) to (d) contained in the motion for a final protection order which had earlier been granted in the interim protection order restraining him from carrying out threats of domestic violence against the applicant and their daughter, and from further committing acts which constitute domestic violence against them, and an order restraining him from physical contact with the applicant and their daughter were moot because he no longer lived with the applicant and their children. He proffered that the child in issue could live with the applicant in one of his houses at Kasoa when she was on vacation as indicated ante. 12. Notwithstanding these concessions, the respondent in a supplementary affidavit filed on 27 January 2023 prayed for the interim order to be vacated on the basis that the applicant abandoned the child in issue who fell extremely ill and was diagnosed with sexual infection. It appears from paragraph 6 of the said supplementary affidavit that the relevance of this assertion to the case of the respondent is that the protection order seeks to restrain him despite performing such an important role in the life of the child in issue. In an additional supplementary affidavit filed on 4 April 2023, the respondent averred that he had a cordial relationship with the child in issue who called him on the phone continually from school. The Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 9 of 16 respondent asserted further that he visits the child in issue at her school where they spend time discussing academic work and other related issues. He informed the Court he has plans to take the child in issue abroad to continue her education. 13. By virtue of section 19 of the Domestic Violence Act, the Court has the discretion to extend a protection order to a person other than the applicant if it is established that she has or is being subjected to domestic violence. Where the other person is a child as in the instant case, the Court is mandated to give primary consideration to her welfare: see section 2 of the Children’s Act, 1998 (Act 560) and Baffour v Anaman [2018- 2019] 1 GLR 473. So crucial is the welfare or best interest principle that 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) considers the concept as 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.” According to the Committee, “[a]rticle 3, Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 10 of paragraph 1 [of the Convention on the Rights of a Child], creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court;”2 14. Flowing from the welfare principle is the right of the child to grow with her parents and the corresponding rights and duties of the parent to protect, provide maintenance, guidance and support, amongst others, for the children. These find expression in international human rights instruments and norms and the Children’s Act, 1998 (Act 560). Under section 5 of the Children’s Act “No person shall deny a child the right to live with his parents and family and grow up in a caring and peaceful environment…” 15. In the exercise of that right, the parent with whom the child associates “has rights and responsibilities whether imposed by law or otherwise towards his child which include the duty to – (a) protect the child from neglect, discrimination, violence, abuse, exposure to physical and moral hazards and oppression; (b) provide good guidance, care, assistance and maintenance for the child and assurance of the child’s 2 United Nations Committee on the Rights of the Childrenhttps://www2.ohchr.org/english/bodies/crc/docs/gc/crc_c_gc_14_eng.pdf accessed on 6 July 2023 Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 11 of survival and development...” by the provisions of paragraphs (a) and (b) of subsection (3) of section 6. Inherent in these provisions is a “responsibility to protect” vested in the State and any other person responsible for the child to ensure that such a child is removed from a parent if “it is proved in court that living with his parents would – (a) lead to significant harm to the child; or (b) subject the child to serious abuse; or (c) not be in the best interest of the child”—see section 5 of the Children’s Act. 16. An anathema to the interest of the child which constitutes significant harm and serious abuse to a child is domestic violence defined under section 1 of the Domestic Violence Act to include harm or threats thereof under sections 69, 72, 74 and section 75 [amongst others] of the Criminal Offences Act, 1960 (Act 29); physical abuse, and conduct that in any way harms or may harm another person. Therefore, the question before the Court is whether the respondent has engaged in conduct that would require the State to interpose to curtail his parental rights of the child bearing in mind that “*a+ single act may amount to domestic violence.” 17. Despite the evidence that the respondent and the child-in-issue may be cordial from the conversations between the respondent and Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 12 of the child exhibited in the supplementary affidavit filed on 4 April 2023, I do not consider a pose of the child in a picture one showing excitement and two others grimness enough to dispel the allegation of domestic violence. It is my opinion after examining the respective affidavits of the parties herein that the most important pieces of evidence provided by the applicant in support of her case are the medical reports although they offend the rule against narrative in the sense that from their contents they are being offered to show consistency in their narration of the alleged assault of the child-in-issue. No objection was raised on the basis that they were self-serving. It would seem the failure to object is attributable to the erroneous reliance and fixation with the motion on notice for a final protection order. That notwithstanding, once they are in evidence I have a duty to consider them and give them the necessary weight. 18. It would be recalled that whilst the applicant averred that the child run away from the respondent’s house after she was assaulted by the respondent who threatened further assault, the respondent alleged that the child rather assaulted him by slapping him when he complained about the conduct of the applicant. Fearing that the respondent would discipline her, she run away at the instigation of the applicant whilst the respondent was at work. It is rather curious why Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 13 of the child did not run away out of fear of discipline immediately after she allegedly slapped her father—the applicant—but rather inferentially remained only to leave at a time the applicant was at work. It is a rather incredulous allegation made by the respondent. In my opinion, it is more probable than not that the respondent did assault the child who was removed with despatch from the respondent. This position is corroborated by the medical reports and the extract from the station diary [exhibit 4]. There is clear evidence of hostility in that family with the child at the centre and her welfare amidst the hostility has been prejudiced and would continue to be prejudiced if the Court does not interpose. It is my considered opinion, therefore, that the respondent has failed to protect the child from … violence, abuse, exposure to physical … hazards and oppression. Consequently, I am satisfied that associating with her father would lead to significant harm to the child, may subject the child to serious abuse, and would not be in the best interest of the child. The net effect of these findings is that the respondent has failed to show cause why the interim order should not be made final thereby vesting the Court with a “responsibility to protect” to terminate his rights over the child. Accordingly, I hereby issue a final protection order valid for one (1) year as follows: the respondent is hereby Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 14 of a) Restrained from carrying out threats of domestic violence against the applicant— Emelia Acquah Asare—and Josephine Esi Nyansemah Asare—the child-in-issue, and from further committing acts which constitute domestic violence against the applicant and the child-in-issue; and b) Restrained from physical contact with the applicant and the child-in-issue. 19. Not having been furnished with the financial circumstances of both parties and balancing the absence of the same against the right of the child to be cared for by her parents who brought her into this world without her permission, and being guided by the fact that the maintenance of the child is a shared responsibility, I hereby order the respondent provide for the entire educational needs of the child in issue and maintain her with a monthly sum of GHC1,000.00 whilst she is on vacation. I further order the applicant to provide shelter for herself and the child. All other expenses relating to the welfare and well-being of the child-in-issue shall be borne by the respondent. The instant orders for maintenance, shelter, education and all other ancillary expenses shall be valid until the child-in-issue turns eighteen Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 15 of (18) years or becomes gainfully employed, whichever is earlier, subject to review. Since counsel for the applicant did not pray for costs, there shall be no order as to costs. SGD JOJO AMOAH HAGAN JUDGE, CIRCUIT COURT. Legal representation 1. Sheila Armah Jones Esq with Nana Akua Awuku Asabre holding the brief of Sheila Minkah-Premo Esq for the applicant. 2. Benedicta Mawusi Fianyo Esq holding the brief of Simon Okyere Esq for the respondent. Emelia Acquah Asare v Simon Aare (Suit No. C11/110/2022) Page 16 of