Fuseina Adamu Vrs Fuseini Alhassan [2022] GHADC 13 (24 October 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON MONDAY THE 24TH DAY OF OCTOBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM PHILOMENA SACKEY AND MADAM LOVEGRACE AHLIJAH AS PANEL MEMBERS SUIT NO. A6/57/23 APPLICANT FUSEINA ADAMU JOMAH-ABLEKUMA, ACCRA. VS FUSEINI ALHASSAN FADAMA-DARKUMAN, ACCRA RESPONDENT Parties present. No legal representation for both parties. RULING This is a Ruling on an Application by the Applicant herein filed on the 25th of July, 2022 for custody and maintenance of the children in issue. Applicant’s Case The Applicant in her Affidavit deposed that she was married to the Respondent for about Fourteen (14) years and has Three (3) children with him of which he rarely maintained her when she got pregnant until she delivered. She stated that after child birth the Respondent refuse to maintain the children and herself of which she has been the sole contributor in the marriage. She further deposed that Fuseina Adamu vs Fuseini Alhassan at some time, when their tenancy agreement expired, a stranger paid part of their rent at Jomah, Ablekuma because the Respondent refused to pay. She continued that the Respondent has consistently refused to maintain the children and therefore prays for the following reliefs; 1. Custody of the children to be granted to the Applicant with reasonable access to the Respondent. 2. An Order for the Respondent to maintain the children with an amount of One Thousand Ghana Cedis (Ghc1, 000.00) every month. 3. An Order for the Respondent to Pay for the School Fees and all educational expenses of the children as and when it falls due. 4. An Order for the Respondent to pay for the medical bills of the children as and when it falls due 5. Any other Order(s) this Honorable Court may deem fit. Respondent’s Case The Respondent filed his Affidavit in Opposition on the 22nd of August 2022 where he deposed that he maintained the Applicant during pregnancy through to child birth and has been responsible for all the needs of the children including maintenance and medical bills. He further deposed that he has been responsible for the rent but the Applicant vacated her matrimonial home with the children without his knowledge and consent. He continued that the Applicant started giving him weekend access and he in turn gives the children money including hospital bills when the need arises. The Respondent concluded by stating that he is currently undergoing apprenticeship with DSTV and prays the court grants Fuseina Adamu vs Fuseini Alhassan him custody as he is not gainfully employed and cannot maintain the Applicant with the amount she is seeking for. DETERMINATION: The main issues for determination is whether or not the Applicant ought to be granted custody of the children in issue and in determining the issue 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 Nii Ayikwei Attoh on the 24th of October 2022 made certain findings including the fact that the Applicant lives at Ablekuma-Jomah in a single room with all the children in a compound house with Five (5) other tenants. She is a petty trader and earns between GHȻ30.00 to GHȻ60.00 on a daily basis. The Respondent, Fuseini Alhassan, lives at Fadama in a chamber and hall alone. He claimed that he is learning how to install DSTV but sometimes his master gives him GH₵10.00 to GH₵30.00. The parties had the Three (3) children through Islamic marriage and they lived together at Fadama until they were separated in 2016 due misunderstandings. The Respondent has not been paying the children’s school after their separated. The SER gathered that the Respondent stopped maintaining the children when the Applicant left with the children but he started paying their Fuseina Adamu vs Fuseini Alhassan maintenance about two years ago, although the amount he pays is not regular and also not adequate enough to cater for the children’s needs. The SER further gathered that the Applicant has not denied the Respondent access to the children but the main aim of the Applicant granting access to the Respondent was for the children to attend Arabic classes during the weekends but he does not allow them to attend on regular basis. The Probation Officer indicated that it appears the Respondent wants custody of the children so that he can give them to his mother who is about Seventy (70) years old. It was again revealed that when the children visit the Respondent he does not allow them to sleep in his room which is not good for the children upbringing. Analysis The first issue for determination is whether or not the Applicant ought to be granted custody of the children in issue. It was held in case of ASEM VS. ASEM [1968] GLR 1146 that ‚the court was obliged by statute in deciding a question of custody to have regard to the welfare of the infant as its first and paramount consideration. The crucial question for decision in the instant case was therefore which of the parents was better suited to be entrusted with the upbringing of the child‛. The basis of the instant Application is that the Respondent has not been adequately maintaining the children. The Respondent however insists on having custody of the children because to him, his mother and siblings are available to take care of the children and as such there will be no need for the payment of maintenance. In the case of Aikins vs. Aikins [1979] GLR 223, the learned Judge stated that ‘… I do not think I should give custody to a parent whose purpose is to deliver the children to another.’ Fuseina Adamu vs Fuseini Alhassan Additionally, the evidence again shows that one of the children is aged Thirteen (13), Eight (8) and Six (6) years old respectively and it is trite that children of these ages need for to have a stable, safe and secure attachments to both parents but the law posits that it will be in the best interest of children of young age to be with their mother. In the case of Opoku-Owusu vs. Opoku-Owusu [1973] 2 GLR 349, Sarkodee J held that ‘the Court’s duty is to protect the children irrespective of the wishes of the parents. In the normal course, the mother should have the care and control of very young children…’ To determine custody, the court, despite the SER sought to ascertain from the children which parent they will prefer to live with and put that into consideration. The consideration given a child's preference in awarding custody depends upon several factors: (i) the age and maturity of the child; (ii) the strength of the preference; and (iii) whether or not all of the children in the family express the same preference. In the case of Edwards v. Edwards 27. 270 Wis. 48, 70 N. W.2d 22 (1955) the court held that ‘the personal preference of the child is very important, and although not controlling on the issue of custody, should be followed if the child "gives substantial reasons why it would be against his or her best interest to award custody contrary to such expressed preference’. All the children indeed informed the Probation Officer of their preferred parents and were able to adduce reasons for their preference. The court is however mindful of the fact that the child's preference rule is only an aspect of the child's best interest test. Nevertheless, in most cases, it will be in the child's best interest to be with the parent preferred. Irrespective of the wishes of these children, the court is mindful of the ‘Welfare Principle’ as posited by Act 560 stated supra and the ‚welfare‛ which is said to be paramount or primary has been given various interpretations. In Re McGrath (Infants) [1893] 1 Ch 143 at 148, CA it was held that ‘… the word ‚welfare‛ of the child must be considered ‚in its widest sense.‛ In R v Fuseina Adamu vs Fuseini Alhassan Gyngall [1893] 2 QB 232 at 243, CA the Court of Appeal per Lord Esher MR stated further: ‚The Court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, . . . and the happiness of the child.‛ Additionally, it is important to note that the Probation Officer, who at best, is an Independent Investigator obtained all the necessary information needed to make a determination and the evidence so obtained by the Independent Investigator is often viewed with great authority by the Court. In this instant case, the Probation Officer, recommended that the best interest of the children will be served if custody of the children is granted to the Applicant with reasonable access to the Respondent and the court finds it extremely difficult to depart from the recommendation of the Probation Officer. 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 Applicant shall have custody of the children and the Respondent shall have weekend access, every fortnight as follows; he is to pick the children up on Fridays by 5pm and return them to the Respondent on Sundays by 4pm with effect from 28th October 2022, and school vacations shall be shared equally. 2. The Respondent is to maintain the children monthly with an amount of Six Hundred Ghana Cedis (Ghc600.00) and same is to be paid into court within the first week of every month with effect from November 2022. Fuseina Adamu vs Fuseini Alhassan 3. The Applicant shall register the children under the National Health Insurance Scheme (NHIS) and the Respondent shall pay for all medical expenses not covered by NHIS. 4. The parties shall share the payments of the children’s school fees equally with the Applicant paying Fifty percent (50%) and the Respondent paying the remaining Fifty percent (50%). The Respondent shall also pay for the textbooks and exercise books whilst the Applicant pays for school uniforms and school sandals. ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… ……………………….. MADAM PHILOMENA SACKEY AHLIJAH PANEL MEMBER MADAM LOVEGRACE PANEL MEMBER Fuseina Adamu vs Fuseini Alhassan 7