Laryea Vrs Noi [2022] GHADC 186 (10 October 2022)

IN THE FAMILY AND JUVENILE COURT ‘B’, FORMER COMMERCIAL COURT BUILDING – ACCRA HELD ON MONDAY, THE 10TH DAY OF OCTOBER 2022. BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE, SITTING AS AN ADITIONAL MAGISTRATE WITH MADAM FELICIA COFIE, AND MR. RICHARD TEGBEY AS PANEL MEMBERS. Suit No: A6/05/23 EVELYN LARYEA ….. APPLICANT TESHIE ACCRA SAMUEL NII NOI .…. RESPONDENT Applicant: Present Respondent: Represented by Emmanuel Nyame Lord Kelvin Essandoh holds Jerry Avenorgbo’s brief for Respondent Applicant’s prayer before the Court is for, JUDGMENT 1. Custody of the within named issue to be granted to her with reasonable access to the Respondent. 2. An order for the Respondent to enrol the eldest issue, namely, Candos Nii Noi into a suitable school and pay all educational expenses of the issue as and when it falls due. 3. An order for Respondent to pay an amount of One Thousand Cedis for the upkeep of the issue monthly, subject to an upward review every year from date of judgment. 1 | P a g e 4. An order for the Respondent to pay for Applicant’s antenatal and all medical expenses associated with the pregnancy and the issue herein as and when it falls due. 5. An order directed at the Respondent to perform the naming rights of the issue upon birth. 6. An order for the Respondent to enrol the issue yet to be borne into a suitable school when the issue is two years old and pay all educational expenses thereafter as and when it falls due. 7. An order for the Respondent to provide a suitable accommodation for the Applicant and the issue herein. 8. Any other order(s) this Honourable Court may deem fit. Respondent on the other hand is of the view that Applicant is not entitled to the reliefs sought and therefore prayed for the application to be dismissed. According to Respondent, the Applicant came to live with him when the issue was two months old but moved out in February 2022. She however returned in March 2022 but in April 2022, she went out with the issue and returned around 12.pm (midnight) so he asked her to go back to where she was coming from and she left. He also alleged that Applicant likes walking about with the issue during late hours. He denied being responsible for Applicant’s current pregnancy and that they are no longer in a relationship. He said he provides the necessities of life for the issue and Applicant even though he believes that the unborn child is not his. According to him, Applicant is not in a position to take care of the child, she maltreats the child, shirks her responsibilities as a mother and does not have a place of abode and therefore custody of the child in issue should be granted to him and not Applicant. Since the parties are in disagreement as to who should have custody of the issues, the Court will first consider the issue, which of the parties is entitled to have custody of the issue before proceeding to other matters as this will impact on the determination of the other matters in controversy? The primary authority on custody and access matters is section 45(1) and (2) of The Children’s Act, 1998 (Act 560). 2 | P a g e Though section 45(2) provides some factors to be considered by the court in such a determination such as, “ the age of the child; that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents; the views of the child if the views have been independently given; that it 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” (emphasis supplied), the section 45(1) admonishes the Court thus; “ (1) A Family Tribunal shall consider the best interest of the child and the importance of a young child being with his mother when making an order for custody and access”;(emphasis supplied). This Court as well as the parties have a duty to uphold the best interest and welfare of the issue and the unborn child (see section 2 of Act 560 and article 28 of the 1992 Constitution). In Asem v. Asem [1986] GLR 1146 the Supreme Court outlined the functions of the court as follows; “As is well known, the court is obliged by statute in deciding the question of custody to have regard to the welfare of the infant as its first and paramount consideration…………the crucial question for decision is which of the parents is better suited to be entrusted with the custody of the six year old boy” Again, in the case of Braun v. Mallet [1975] 1GLR 81 Azu Crabbe C. J. emphasised the natural right of the mother of a young child to its custody as against a reputed father and strangers wherein he quoted the dicta of Lindsey L. J in In Re McGrath (Infants) [1893] 1Ch. 143 at page 148 that ‘The affection of a mother for her child must be taken into account, and poverty per se was no reason for depriving a mother of custody when her character had in no way been impeached” The Social Enquiry Report (SER) confirmed that the issue was born out of an amorous relationship, but the parties are currently separated, and their relationship is sour. The issue is about seventeen months old now and Applicant is about seven months pregnant. Respondent sent the Applicant away with the child and now wants custody of the child because, “Applicant is not in a position to take care of the child, she maltreats the child, shirks her responsibilities as a mother and does not have a place of abode” as captured at paragraph fourteen (14) of his affidavit in Opposition filed on the 27th day of June 2022. According to the SER, Respondent wants custody of the issue for his sister to take care of him. The sister is a Caterer and lives at Osu Re. She sells plantain chips for a living. She said 3 | P a g e she is willing to relocate to Respondent’s residence to assist him care for the child if he is granted custody. She is a single mother of three children aged 18, 16 and 7 years old. Being a single mother, she may not be able to work and provide the needs of her children if she has to take care of the child in issue. The said sister doesn’t even live with her own children, they live with their grandmother. Applicant mentioned that when she was staying with Respondent, she used to stay outside between seven to eight (7-8 pm) because the room got hot sometimes, and the issue would be crying and so she takes the issue outside for fresh air and also took the opportunity to communicate with her aunt. Applicant also indicated that Respondent is very busy and sometimes sleeps in the shop and so will not be able to take good care of the issue if granted custody and that she can take good care of the child when given accommodation and the needed resources. Collateral sources interviewed confirmed that Respondent is a busy person so he will not have time to take care of the issue. Further that Respondent used to maltreat Applicant, and sometimes when the parties quarrel, Respondent will take the issue from Applicant, sack her, and also put out her belongings and will not budge to pleadings on behalf of Applicant. Given the nature of Respondent’s work, it is obvious he may not be able to care for the issue all by himself if granted custody and the issue is also very young. From the forgoing and considering the tender age of the child in issue, the Court deems it in the best interest of the issue to grant custody of the issue to Applicant the biological mother with reasonable access to Respondent the father. Whether or not Applicant is entitled to her prayer for Respondent to pay for her antenatal and all medical expenses associated with the pregnancy and also name the child upon birth. Respondent’s reason for denying responsibility for Applicant’s pregnancy is that they are no longer in a relationship. Further that Applicant has been in and out of the house and only came back recently to tell him that he is pregnant for him. The evidence shows that Applicant moved in to live with Respondent when she gave birth to the issue. She left in February 2022 and came back in March 2022 when the issue was a year old. Applicant is about seven (7) months old pregnant. According to section 32 of the Evidence Act 1975 (NRCD 323) ‘(1) A 4 | P a g e child born during the marriage of the mother is presumed to be the child of the person who is the husband of that mother at the time of the birth. (2) A child of a woman who has been married, born within 300 days after the end of the marriage is presumed to be a child of that marriage’ This however is a rebuttable presumption. Though the parties herein are not formally married, they were living together as partners until Applicant’s departure from Respondent’s home in April 2022. One can safely presume that Respondent is responsible for the pregnancy Applicant is carrying until otherwise proven or rebutted. If on the other hand we choose to reason that once they are not formally married the presumption under section 32 of the Evidence Act will not apply, Respondent will still be caught by section 51(1)(a)(b) of Act 560 which states that ‘A Family Tribunal may award maintenance to the mother of a child whether married to the father or not where the father has been identified, and the maintenance shall include the following- (a) Medical expenses for the duration of her pregnancy, delivery or death of the child. (b) A periodic allowance for the maintenance of the mother during her period of pregnancy and for a further period of nine months after the delivery of the child” (emphasis supplied) And in the instant case, Applicant has identified Respondent as the author of the pregnancy she is carrying. Accordingly, it is hereby ordered that Respondent shall bear the full cost of Applicant’s ante natal, delivery and postnatal expenses. He shall also name the child within six weeks after delivery. If after the birth of the child Respondent still denies paternity, then a DNA test shall be conducted within three months of the birth of the child. He shall also be responsible for the child’s medicals and educational bills as and when they fall due. The cost of the test shall be borne by Respondent, and he shall take up full responsibility for that child until the outcome of the DNA test. If he is confirmed as the father of the child, he shall name the child within three (weeks) of the outcome of the DNA test. If the DNA test result however turns out to be negative, he shall be relieved of all responsibilities towards that child. This disposes off Applicant’s reliefs 4,5, and 6 as they all relate to the pregnancy and unborn child. 5 | P a g e We now consider the issue whether or not Applicant is entitled to her claim for Respondent to maintain the issue with GHC1,000.00 monthly, enrol the issue and the unborn child when he is of school going age in school, pay educational and medical expenses as and when they fall due and provide suitable accommodation for them. Section 47 of Act 560 provides that, “A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply necessaries of health, life, education and reasonable shelter for the child” (emphasis supplied). The care and maintenance of children is therefore the joint responsibility of parents. Also, the duty to maintain a child(ren) is not only limited to the payment of monthly maintenance but also the provision of accommodation, and the necessaries of health, life and education. In the determination of maintenance, the court is required to consider the factors stated under section 49 of Act 560. That is, the income and wealth of both parents of the child, any impairment on their earning capacity, the financial responsibility of the person with respect to the maintenance of other children, the cost of living in the area where the child resides, the rights of the child under the Children’s Act and any other relevant factor. According to the SER, Applicant is a seamstress but currently not working. Respondent is a fashion designer, and he has a shop near his house. He is also reported to be in the process of opening a fashion school attached to his shop. Applicant informed the Court during the last sitting when asked what she does during the day that” Applicant: “Now I help someone to sew. First, I was washing dishes for someone from where I get food to feed myself and the child” Respondent has not provided adequate maintenance for Applicant and the issue since the parties separated in April 2022. They survive on the support from family and friends. Applicant’s cousin mentioned during the social enquiry that Respondent sent GHC110.00 through her to Applicant in May 2022. Respondent however maintained that he has sent a total of GHC210.00 to Applicant through her cousin and grandmother since April 2022 when 6 | P a g e Applicant left. Applicant indicated that, at a family mediation, Respondent promised to maintain the issue with GHC100.00 weekly but he reneged on his promise. She however admitted that Respondent has sent money twice through her cousin and aunt(grandmother) for her because he says she is ungrateful. Respondent confirmed when the Court enquired thus; By Court: Is it a fact that you promised to maintain the issue with GHC100.00 weekly? When was this? Respondent: Yes, this year, about four months ago. I didn’t give her the money because she refused to allow me to take the child to school and also denied me access to the boy.” Counsel for Respondent then chipped in that he is sure his client will do well to maintain the issue if his client gets access to the issue. Really? Do two wrongs make a right? Who was to feel the pinch of Respondent’s failure to maintain the child when he very well knew that Applicant was pregnant and not working? Applicant or the child? Did Applicant’s refusal to allow him to enrol the issue in school change the fact that he is the father? Did that change his responsibilities to the issue? The same child that he is now claiming custody of. What if the child had suffered from malnutrition or the worst had happened as a result of inadequate maintenance? Thank God none of these happened. They claim Respondent does not know where Applicant lives with the child and that she keeps moving from place to place so she should be ordered to show Respondent where she lives to allow him access to the issue. Yet in another breath, he said “Please the reason why she cannot stay at one place is because they all complain she comes home late etc….” By Court: How did you get that information? Respondent: They called me and told me. By Court: So, all along, you knew where she has been staying, all the people she had lived with and yet you told us you didn’t know. Meanwhile, Applicant’s response to Respondent’s allegation of she having denied him access to the children was as follows. 7 | P a g e Applicant: Please it was about three days after he sent us away that he called asking where I was and I told him he did not give us a place to go but when we went for the family meeting, they told him where to find me” So I can conveniently say that Respondent knew where or how to find Applicant and the issue but did nothing about it only to turn around and use that as the reason for refusing to maintain the issue as promised. What happened to mobile money transfers? He actually sent a total of GHC210 through Applicant’s cousin and aunt so there is no doubt he could have had access to the issue if he was minded to. How callous can a person be, to throw out an unemployed pregnant woman and an about 13 months old child (at the time) and not be concerned about what they eat or where they sleep. Respondent is ordered to pay the GHC100.00 weekly he promised for the upkeep of the issue being GHC400.00 monthly from April 2020 less the GHC210.00 he sent to Applicant through her relatives. In addition, he shall maintain Applicant and the pregnancy with another 400.00 during the pregnancy and a period of nine (9) months after delivery in accordance with section 51(1)(a)(b) of Act 560. These shall be paid into Court and shall take effect from April 2022. On education, Applicant prays for an order for the Respondent to enroll the eldest issue, namely, Candos Nii Noi and the unborn child when he is 2 years old into a suitable school and pay all educational expenses as and when it falls due. Respondent said he wanted to enrol the issue in school when he was one year old, but Applicant was against it because to her, the issue was too young to be in school. He said he sought admission for the issue and the headmistress requested to see the issue, so he arranged with his sister to pick up the issue from Applicant’s place. Just about then they received a call from the police that they wanted to kidnap the issue. At the police station, they were warned not to pick the child. The right of children to education is enshrined in the 1992 Constitution as a fundamental human right and also under section 8(1) and 47 of the Children’s Act. It therefore cannot be compromised. In furtherance of parental responsibility towards the education of their children, the parties are ordered to identify a suitable school and enrol the issue in and Respondent shall be responsible for all his educational needs. Same shall apply to the second issue when he is born and of school going age. 8 | P a g e On accommodation, the evidence shows that since Applicant was sent away, she and the issue have not had a stable place to live. Applicant used to stay with his aunt at Teshie Tebibianor before she moved to the grandmother’s place and met Respondent, but the aunt is no longer willing to accommodate her because she has a child and is also pregnant. She has packed her belonging in her grandmother’s uncompleted house where her mother and brother reside, but she sleeps with the issue in a friend’s salon near the said house. Upon further enquiry during proceedings on 12th September 2022 she said “now my friend in whose shop I sleep has also sent us away. When I first left, I went to live with my sister, but she also sent me away because of the pregnancy. At my grandmother’s place (this is where she is keeping her belongings), there is no place for us there. They gave me the option to either build a cement structure or put a container on the land to stay there but I cannot afford it.” Asked why everyone seems to be sending her away? She said “Because of the pregnancy. They do not want me to give birth there. Also when the boy is playing, they say he is making noise. So now, I do not have a place” One of Respondents reasons for asking for custody is because Applicant does not have a place of abode. Parents have a responsibility to provide adequate shelter for their children. Since Applicant is currently not working and pregnant, Respondent is given six (6) weeks to rent a suitable single room with social amenities for Applicant and the issue. Respondent shall also be responsible for the cost of medical care not covered by the National Health Insurance Scheme (NHIS). These orders have been made in the best interest of the issue and the unborn child. H/H MATILDA RIBEIRO (MRS.) CIRCUIT COURT JUDGE 9 | P a g e