Custody of Children Flashcards
According to S22, what power does the Court have with respect to children
The Court has the power either on its initiative or application by either party, to make in respect of any child any order it thinks reasonable and for the benefit of the Child
What may the Court do in regard to custody and maintenance of children
The Court may:
- Order the child awarded to ANY person
- Regulate access of parents to the child
- Provide for the maintenance and education of child from income and property of parents
What are the factors the Courts have considered in determining Custody of Children in Ghana Courts?
Generally the Court may order, either on its own initiative or on application by either party, any order it thinks Reasonable and for the Benefit of the Child. The factors the Court has used to determination include:
- Mother is usually given custody of child who is Young or in need of special care. (Braun v. Mallet)
- Poverty alone is NOT a reason for depriving custody. Custody may be refused only if the character of the mother is impeached. (Braun v. Mallet)
- Courts will look at the entire background and all the circumstances to determine what is in the Best Interest and Benefit of the Child. (Beckley v. Beckley)
- Courts will tend to not split up children of the same household if it will be desirable in the circumstances to keep them together. (Opoku-Owusu v. Opoku-Owusu)
- Courts will keep child in foreign environment especially where there is evidence that the child will be better off in that environment. (Attu v. Attu)
- Courts will, all other things being equal, prefer a parent to whom the child is attached over a parent without attachment (In Re Dankwa)
Court may order child back to jurisdiction if it finds doing so in Benefit of Child.
What Laws govern Child Custody?
The law imposes a duty on courts during divorce proceedings in respect to custody of children.
- Children’s Act (Act 560)
- Courts Act (Act 459)
- S22 of Matrimonial Causes Act (Act 357)
- Case law
What can Family Tribunals do with respect to Children?
Family Tribunals may deal with the following matters with respect to children:
- Custody of Children
- Parentage of Children
- Access to and Maintenance of Children
Braun v. Mallet (hint: BabyMama)
- Plaintiff (German citizen + resident)
- Respondent (Ghanaian and father of Thomas)
- Plaintiff was given custody (limited visiting by father)
- Under guise of shopping spree, D ran away with Thomas to Ghana
- P came to Ghana to seek custody
Court held:
1. Welfare and happiness of infant is paramount
2. In considering matters, the court must look at every angle and give due weight to every relevant material (Beckley v Beckley)
3. The court took the view that as a natural force, R has no right just because of fatherhood, to claim custody
4. The natural right of a mother of a young child and the mother of an illegitimate child had prima facie preference to father or any other person. And that Thomas needed his mother
5. Court also held that poverty per se was no reason for depriving mother of custody when character had not been impeached.
6. Court also held that regardless of the domicile of both parties, it would be contrary to natural justice, equity and conscience to deprive P of custody of her son
Happee v. Happee (with respect to custody of child)
- Child was 19 years (so technically was an ‘infant’ - which is someone under 21 years
- Set to attend school in Kumasi
- Court found character and actions of mother so abhorrent as to find it not in the best interest of the daughter to be with her
- Court found that in was in best interest of child to be with the petitioner though he was not a citizen of Ghana
- But court also added that a mother was important and daughter be allowed and facilitated to visit anytime she wanted
Beckley v. Beckley
- Child was of a tender age
- Mother was not a resident
- Had no job or permanent place to stay
- Depended on friends
- Husband was employed and had his mother around to look after child
- Court granted the Man custody
Ofori v. Ofori (hint: Yankee Ofori)
- Dissolution occurred
- Children granted to respondent (mother)
- Children were in school in the USA, only been in Ghana for 2 short periods
- Court held that the children’s education and upbringing should not be interfered with
Attu v. Attu (Hint: Atuuuuu - welcome (to Ghana))
- Children did not know father
- Physically attached to mother, respondent
- They had been uprooted from Ghanaian environment to Britain with very different social and cultural background
- Educated and settled in Britain for 4 years
- Father made no effort to trace mother or children or show any interest in the children until petition (returned from Zambia to Ghana - Atuuuuuu)
- Application was not brought timeously
- In Attu v. Attu, both P and R had good homes
In Re: Dankwa (hint: TenDa-nkwa)
- Child was of tender/tenDa(nkwa) age
- Father snatched the child at 2
- Court held that the child had stayed with the father so long that it was not in the interest to be removed from him
- Child was awarded to father!
Ollenu (JSC) acknowledged that this went against the general custom/principle that a mother/woman was generally awarded a child of tender age
Opoku Owusu v Opoku Owusu
The courts are hesitant to split children, but in some situations the courts may split. It is preferable that the custody of male children go to the father.
The couple had 4 children, 3 boys 1 girl. Wife wanted custody of the daughter and the husband wanted custody of all 4 children. Court granted husband’s wish
