Odai Vrs Asima [2022] GHADC 188 (29 December 2022)

IN THE FAMILY AND JUVENILE COURT ‘B’, FORMER COMMERCIAL COURT BUILDING – ACCRA HELD ON THURSDAY, THE 29TH DAY OF DECEMBER 2022 BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE, SITTING AS AN ADITIONAL MAGISTRATE WITH MADAM FELICIA COFIE, AND MR. JOSEPH ATTIGAH AS PANEL MEMBERS GIFTY NAA MOMO ODAI …… APPLICANT Suit No: A6/145/23 TESHIE TSUI-BLEOO ACCRA VERSUS SETH ASIMA .…. RESPONDENT TESHIE TUI-BLEOO ACCRA _____________________________________________________________________ Applicant: Present Respondent: Present Counsel for Applicant: Vincent Aikins Esq. Present Counsel for Respondent: Amazing Grace Adomaa, Absent JUDGMENT This is a judgment on an access application filed before the court on the 27th day of September 2022 by Applicant the mother of the three issues herein. The grounds of Applicant’s application for access as contained in the Affidavit in support of the application are that, since the parties’ separation, Respondent has denied her access to 1 | P a g e the children in issue whether in or outside the matrimonial home. She said she sometimes uses surreptitious means to reach the issues when they call her that they are sick. She stated again that Respondent gets upset when he finds out that she visited the issues and vituperates on the phone with all kinds of warnings to her never to step into his house again. According to her, this attitude of Respondent in denying her reasonable access to the issues is affecting the psychological, physical and moral wellbeing of the issues especially the last one who is a female. Wherefore she filed the instant application praying for reasonable access to the children being weekend and vacation access. Respondent denied almost all the averments in Applicant’s Affidavit in Support of her application in his Affidavit in Opposition filed on the 17th day of October 2022 and averred that, Applicant has continuously had access to the issues after she abandoned them and visited them on three consecutive occasions, as recently as September 2022 and that he has never denied her access to them. He said Applicant has had constant communication with the issues through the oldest issue’s phone. That when any of the issues is sick, Applicant is informed of same and on one such occasion, he invited Applicant to take the child to the hospital and he asked her to return home for the sake of the children, but Applicant declined the request. He stated further that during the pendency of the marriage, Applicant seldomly stayed at home since she is a member of the Ghana Immigration band and usually on duty during the weekends and also operates a salon and therefore made him the one responsible for caring for the issues till date. According to him, Applicant will therefore not be personally available during weekends to spend time and supervise the issues when they visit her. He therefore prayed that even if the order should be given, it should be such that the Applicant can visit the children at the Respondent’s home every other weekend. The issue for determination by the Court is whether or not Applicant should be allowed reasonable access (that is weekend and vacation access) to the three issues outside Respondent’s home. 2 | P a g e In determining this matter, I would first like to refer to the main legal provision on custody and access to children which is section 45 of The Children’s Act 1998 (Act 560) which provides that; “(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 or access. (2) Subject to subsection (1) a Family Tribunal shall 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” Section 2 of Act 560 also provides that “(1) The best interest of the child shall be paramount in any matter concerning a child. (2) 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” This is what is popularly referred to as the “welfare principle”. This principle of law has found expression in cases like Asem v. Asem [1968] GLR 1146, CA, Happee v. Happee[1974] 2 G. L. R. 186, Braun v. Mallet [1976]1G. L. R. 81 wherein the Courts emphasized the best interest of a child as the paramount consideration in matters affecting a child. In line with section 45 of Act 560, the court ordered a social enquiry into the lives, background and circumstances of the parties and the issues to help in the determination of the matter in the best interest of the issues. The Social Enquiry Report (hereinafter referred to as SER) submitted by the probation officer confirmed that the parties married in 2003 and were 3 | P a g e blessed with three issues aged seventeen (17) years -male, fifteen (15) years -male and twelve (12) years -female but they have been separated since 2020 due to misunderstandings. It also revealed that Applicant lives in one out of a three-bedroom self-contained apartment with her parents and one sibling at Nungua. The house is walled, gated and has basic amenities. She is an Immigration officer stationed at Hong Kong. She works at most twice a week and on most weekends. She also manages a hairdressing salon. Respondent on the other hand lives with the three issues in a four-bedroom self-contained apartment at Teshie Tsui bleoo. He shares the compound with his brother and his family and a tenant. The facility has a short wall but is not gated. Both parties are government employees. Respondent works Monday to Friday, 8am to 5pm. Whereas Applicant said she earns GHC3,000.00 per month, Respondent said he earns 2,500.00 per month. They however did not produce any evidence in support of their earnings. The first issue is in the Senior High School (SHS), the second just finished Junior High School and the last is in class 6 about to enter Junior High School. The first two issues are boys and the last is a girl. The probation officer also observed during the investigations that the third issue may need some guidance in personal hygiene because the officer perceived body odour on her when she was visited in school although she was well dressed, and she believes Applicant being a woman will be in a better position to give the third issue the needed guidance. It also came out that Respondent tried to influence the issues in their choice of the parent they would like to live with should they be asked by the court forgetting that these children are matured enough to know what they want. The issues expressed the desire to visit Applicant and spend time with her. The third child was however scared to be called an irresponsible child because respondent told them that only irresponsible children go back and forth. The issues have never visited Applicant in her home since she moved out. It was observed that Respondent refused Applicant reasonable access to the issues, and he also does not want them to visit her in her parent’s house because of issues between them and the fact that Applicant’s father called him irresponsible. Respondent stated during proceedings on 4 | P a g e the 17th day of November 2022 that he does not want the issues to go to Applicant’s parent’s house because, “………………… I am not comfortable with the children going to the family house because of how they treated me. So given the two options, I will like her to come and visit them in my house because if the children go there and something happens, I cannot go there.” Meaning, he is willing to grant Applicant visitation access to the issues. This was after he had come to terms with the fact that he cannot deny Applicant access to the issues after his stiff opposition to same early on. The question however is, will this amount to reasonable access? Section 5 of Act 560—Right to Grow up with Parents. “No person shall deny a child the right to live with his parents and family and grow up in a caring and peaceful environment unless 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.” (emphasis supplied) There is no evidence to the effect that should the issues be allowed to spend time with Applicant and her family, they will be subjected to serious abuse or significant harm such that will jeopardise the best interest of the issues. Applicant’s father is willing and happy to see and receive the issues in his home. Truth be told that the welfare and interest of children are best ensured when they live together with their biological parents. Raising children in different homes is not the best but given that the parents herein have been separated for about two years now without an assurance of getting back together, all that can be done is to ensure that the separation does not affect the issues’ right of access and bonding to the parties. Respondent alleges that Applicant will not have time for the issues to care and supervise them because she works on weekends. It is the considered view of the court that when Applicant goes to work on weekends, she still comes home after close of work and the children in issue here are not that young to require constant supervision and care 24hours in a day. Just as Respondent goes to work during the week but is able to manage with the issues 5 | P a g e when they are on vacation, Applicant should be able to do same. In her absence, her parents are there to supervise the issues. Applicant’s father is willing and happy to see and receive the issues in his home. It is also worth noting that all that Applicant is asking for is reasonable access to her children and not custody. As a non-custodial parent, she is entitled to have access to the issues as provided under Section 57 of Act 560 that “A non-custodial parent in respect of whom an application is made to a Family Tribunal for an order of parentage, custody, access or maintenance under this Part shall have access to the child who is the subject of the order”. I also wish to note here that it will be in the best interest of the issues if the parties maintain a cordial relationship between them and the extended families. In any case, their failure to do so should not be allowed to fester and affect the issues. The Court has noted the concerns of the parties especially Respondent, the focus of this court and of paramount consideration however, is the best interest of the three children in issue and not how a party feels or wants if it is found not to be in the best interest of the issues (see section 2(2) of Act 560 -the welfare principle). In 1974, Edusei J. (as he then was) opined in the case of Happee v. Happee [1974] 2 GLR 186, that “The idea of giving access to a parent in such matters seems to spring from the general notion that there is a basic right in a parent to the companionship of his child but I would prefer to call it a basic right in the child rather than in the parent” (emphasis supplied). In that case, custody was granted to the father and even though the court held the view that the conduct or behaviour of the mother was unreasonable, the court nevertheless was of the view that it would not be in the best interest of the issue therein to deny her access to the mother. The court went on and ordered thus “that at any time the daughter expresses her desire to visit her mother she must be given every facility by the father to do so. Indeed, the father must encourage her to visit her mother from time to time” (emphasis supplied). In the instant case however, it is the father who is not allowing and also discouraging the issues from visiting Applicant. Denying the issues herein the right to spend quality time and bond with the mother is in the opinion of this Court, not in their best interest and a breach of their basic rights. From the evidence, all the children desire to spend time with Applicant their mother. The Court is convinced that the views expressed by the issues during the social enquiry were independently given despite the attempts by Respondent to 6 | P a g e influence them and same ought to be considered in the determination of this matter (see sections 11 and 45 (2)(c ) of Act 560). Applicant in turn has been yearning to spend reasonable time with the issues instead of adopting clandestine means to visit them. I see no reason why she should be denied reasonable access to the issues. This Court is not convinced that allowing Applicant access to the issues on weekends and vacations will expose them to any harm or abuse. Rather, it will aid their holistic development. Having considered all the evidence on the record including the SER, it is ordered that Applicant being the biological mother of the three issues herein (SAMUEL EYRAM ASIMA 17years, EDWIN SENA ASIMA, 15years and ESTHER ESINAM ASIMA, 12 years) shall have bi-weekly weekend access to them in her home from 9:00am on Saturdays to 6:00pm on the Sunday following plus half of their school vacation periods. Parties shall also alternate access to the issues on public holidays. Applicant shall support in the provision of the necessaries of life for the issues. Parties shall do their best for the issues. SGD. H/H MATILDA RIBEIRO (MRS) CIRCUIT COURT JUDGE 7 | P a g e