Nicoline Nyarko Vrs Godfred Kwasi Arthur [2022] GHADC 22 (11 November 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON FRIDAY THE 11TH DAY OF NOVEMBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM LOVEGRACE AHLIJAH AND MADAM REGINA TAGOE AS PANEL MEMBERS. SUIT NO. A6/305/22 APPLICANT NICHOLINE NYARKO KLAGON-LASHIBI, ACCRA VS. GODFRED KWASI ARTHUR DANSOMAN, ACCRA RESPONDENT Parties present. No legal representation for both parties. RULING This is a Ruling on an Application filed on the 3rd of March 2022 for access to the Fifteen (15) year old child in issue. The Applicant’s case In her Affidavit in Support, the Applicant deposed that she was married to the Respondent and they had a child but they are now divorced. She indicated further that after the divorce, she had custody of the child and later sent her to Nicholine Nyarko vs Godfred K. Arthur her mother during school vacation. She continued that the child got sick and was sent to the Respondent’s mother at Dansoman as she had to go do some petty trading to support the child. Subsequently, after the child had been treated and healed, the Respondent took the child away from his mother and relocated to a new place of abode without her knowledge. She deposed further that all efforts at locating the Respondent and the child were futile as the Respondent kept changing his place of abode and also intentionally prevented her from seeing the child. The Applicant stated that she then resorted to going to the Respondent’s work place to plead with him and convince him to let her have access and visitation rights to the child but the Respondent kept on giving excuses. She deposed further that for the past Ten (10) years she has not been able to see, have access or assert any visitation rights to her child due to the defiant stance of the Respondent. She concluded by indicating that the child is currently in her final year at the Junior High School and wants the court to compel the Respondent to let her know the child’s school for her to support the Respondent with the child’s educational expenses and visit her in school from time to time. She prayed for the following; 1. An Order for the Respondent to let her have access to the child during school vacations and any other holidays. 2. An Order for the Respondent to let his place of abode known in case she wants to send some items to the child or in visit the child. 3. Any other Order(s) this Honourable Court may deem fit and just. The Respondent’s case The Respondent in his Affidavit in Opposition filed on 30th of March 2022 admitted to the marriage and divorce with the Applicant but stated that when Nicholine Nyarko vs Godfred K. Arthur the child was in the Applicant’s custody, she was rather with the Applicant’s mother and was also not schooling. He said the child then got severely sick to the extent that she was almost paralyzed of which he eventually got her treated. He deposed further that after the treatment, the Applicant wanted to send the child back to her mother but he refused of which the Applicant later abandoned the child. He admitted that the Applicant used to visit him at his workplace but she only came there to greet him and was not there because of the child. He stated further that for the past Ten (10) years, the Applicant calls to inquire about the child but she never visited or assisted in catering for the child and he has single handedly raised the child after the Applicant abandoned the child. He therefore prayed for the court to allow the child complete her Basic Education Certificate Examination (BECE) before the Applicant can be allowed to have access to the child. DETERMINATION In view of the processes before the court, the main issue for determination is whether or not the Applicant ought to be granted access to her biological daughter. In making a determination on the issue before the court, the court is guided by Section 2 (1) of The Children’s Act (1998) Act 560 states that ‘…the best interest of the child shall be paramount in any matter concerning a child…’ and Section 2 (2) also provides that ‘…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…’. In arriving at a conclusion, the court was of the opinion that there is the need to independently investigate the claims of both parties and as such ordered for a Social Enquiry Report (SER). Nicholine Nyarko vs Godfred K. Arthur The Social Enquiry Report (SER) The SER as submitted by the Probation Officer, Madam Mavis Gbate on the 11th of November 2022 made certain findings and conclusions including the fact that the Applicant has remarried and occupies a Four (4) bedroom self-contain house at Klagon with her husband and Three (3) other children. The Respondent indicated that he occupies a chamber and hall with his wife and Four (4) children including the child in issue. Whilst the Applicant sells soft drinks and bottled water where she earns about Ghc600.00 a month, the Respondent works as a Laboratory Assistant at Oblogo Health Center and earns Ghc1, 500.00 monthly. The SER gathered that the parties had the child through customary marriage and the Respondent took care of the pregnancy and named the child after birth. The SER further gathered that the Respondent took custody of the child from his mother when the child was Three (3) years old and the child has been in his custody up to date. The Probation Officer however indicated that the Respondent’s house and the child’s school was not visited because the Respondent did not assist her financially to carry out the investigation. The Probation Officer again indicated that the child expressed her desire to be in the custody of the Applicant but the Respondent is only willing to let the Applicant have access to the child after the child has written her Basic Education Certificate Examination (BECE). Analysis The court, pending the final determination of this matter granted interim limited access to the Applicant as the child was preparing to write her final examination. Nicholine Nyarko vs Godfred K. Arthur Thus, upon completion of the exams, the issue for determination is whether or not the Applicant ought to be granted access to her biological daughter. Section 44 of the Children’s Act, 1998 (Act 560) provides that ‘a parent, family member or any person who has been caring for a child may apply to a Family Tribunal for periodic access to the child’. The Applicant in her Affidavit in Support indicated that all efforts at getting access to her daughter has been futile due to the stance of the Respondent hence he resort to the courts for redress. The evidence on record shows that the Applicant hardly knows child in issue and the child saw her mother for the first time in the court room when the matter came up for hearing. It is therefore not surprising that the Applicant prayed for access to the child as against custody. However, the Probation Officer indicated in the SER that the child in issue wants to be in the custody of the Applicant as against the Respondent. At this point, the duty of the court is to determine whether to rely on the child’s preference so as to award custody. Generally, the weight to give to the custodial preference of the child depends largely on the child’s capacity to make an informed and intelligent judgment. Unfortunately, the law does not set a specific age at which it will be presumed that the child has such capacity but such capacity will be evaluated individually on the basis of the child’s mental development, maturity and the extent to which the child exhibits intellectual discretion. In the case of Edwards vs. Edwards 270 Wis. 48, 70 N. W. 2d 22 (1955)the court held that ‘the personal preference of the child is very important, although not controlling, it should be followed if the child gives substantial reasons why it would be against her best interest to award custody contrary to such expressed preference’. The Court had the opportunity to speak to the child in the absence of her parents and this child did not mince words with respect to her preference. She is Fifteen (15) years old, appeared to be Nicholine Nyarko vs Godfred K. Arthur emotionally mature and as such was able to give her views and wishes freely about her choice. In spite of the child’s preference, the court has a duty to determine whether the Applicant or the Respondent deserves custody of the child. 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 evidence on record shows that the Respondent has solely raised the child with the help of his mother and current wife. The Respondent however informed the court that he is willing to let the Applicant have custody of the child if that is what the child wants. The Applicant also informed the court that she is ready to have custody of the child if the Respondent releases her daughter to her. It must be stated that in custody cases, there is no prima facie right to the custody of the child in either parent, but the court shall determine solely which parent is for the best interest of the child, and what will best promote its welfare and happiness. 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. Today the law recognizes the child's best interest as the determinative factor and this is also referred to as the Welfare Principle as posited by Act 560 stated supra. The Welfare Principle implies that the Court determines what would be best for the child despite both parents' good intentions and competing wishes. In R v 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.‛ Nicholine Nyarko vs Godfred K. Arthur In evaluating the evidence before the court, it appears the child in issue has been looking forward to an opportunity to reunite with her biological mother. In fact, the child saw her mother for the first time when the court ordered the Respondent to bring the child to court. It therefore seems to suggest that the Respondent has, over the years, denied both the Applicant and the child the opportunity to know each other. Indeed, per the Applicant’s depositions, she made several efforts at seeing her daughter but the Respondent took a defiant stance and prevented her from seeing the child. After taking custody of the child, when the child was barely Three (3) years old, the Respondent relocated to a new place of abode and refused to allow the Applicant know his new place of abode. The Applicant then resorted to going to the Respondent’s work place so as to get him to grant her access to her child, but the Respondent again never made that possible as he kept giving excuses that the child is in school or has travelled. The Applicant then lodged a complaint at the Domestic Violence and Victims Support Unit (DOVVSU) of the Ghana Police Service but the Respondent informed the DOVVSU officials that the child had travelled for vacation and will grant access upon her return but he again failed to do so despite several telephone calls to him. It therefore shows that the Applicant’s efforts at having access to her daughter have been relentless and the instant approach to the Court for a determination of access is consistent with a genuine desire for access to her daughter. The SER however indicated that the child prefers to be in the custody of her mother and the child also informed the Panel Members that she prefers to be in the custody of her mother. It therefore shows that the child’s best interest will be served if she is in the custody of her mother as that is what she has always yearned for and the court finds it extremely difficult to go contrary to her preference. Nicholine Nyarko vs Godfred K. Arthur DECISION: Upon consideration of the Application, the evidence before the Court, the testimony of both parties, the preference of the child and pursuant to the provisions of The Children’s Act (1998) Act 560, the Court is satisfied that it will be in the best interest of the child to grant this instant Application and further Orders as follows; 1. The Applicant shall have custody of the all the child and the Respondent shall have reasonable access during the weekends every fortnight. He is to pick the child up from the Applicant on Fridays by 4pm and return the child to the Applicant on Sundays by 4pm with effect from 25th November, 2022. The child’s school vacations shall also be shared equally. 2. The Respondent shall maintain the child with an amount of Three Hundred Ghana Cedis (Ghc300.00) monthly and same is to be paid into court within the first week of every month with effect from December 2022. 3. The Respondent shall be responsible for all the incidental school expenses of the child as she proceeds to secondary school and the Applicant shall be responsible for the child’s school uniforms, sandals, bags and toiletries. 4. The Applicant shall register the children under the National Health Insurance Scheme (NHIS) and renew same when it expires. The Respondent shall be responsible for all the bills not covered under the NHIS. Nicholine Nyarko vs Godfred K. Arthur ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… ……………………….. MADAM PHILOMENA SACKEY PANEL MEMBER MADAM VIDA DANQUAH PANEL MEMBER Nicholine Nyarko vs Godfred K. Arthur 9