KUSI VRS. ACHEAMPONG (C11/77/24) [2025] GHACC 15 (7 March 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON FRIDAY THE 7TH DAY OF MARCH, 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU- BARNIEH, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO.C11/77/24 IN THE MATTER OF AN APPLICATION UNDER THE CHILDREN’S ACT 1998, ACT IN THE MATTER OF SECTION 43, 44, 45 OF THE CHILDREN’S ACT, 1998, (ACT 560) AND IN THE MATTER OF AN APPLICATION FOR THE GRANT OF SOLE CUSTODY OF ADIEL ASARE-MENYAH BY ALBERTA KUSI IN THE MATTER OF AN APPLICATION FOR THE GRANT OF GUARDIANSHIP TO AUGUSTINA KUSI IN THE TEMPORAL ABSENCE OF THE MOTHER OF THE MINOR ALBERTA KUSI — APPLICANT VRS: KOFI ACHEAMPONG — RESPONDENT PARTIES ABSENT SARAH KUSI, ESQ. FOR THE APPLICANT PRESENT JUDGMENT FACTS: The Applicant herein, by an Originating Motion on Notice filed on 29th February, 2024, pursuant to Sections 43, 44 and 45 of the Children’s Act, 1998 (Act 560) is praying this Court for an order granting custody of Adiel Asare-Mensah, aged 11 years to her. Additionally, the Applicant seeks an order granting Augustina Kusi, the Applicant’s mother, guardianship of the minor during the temporary absence of the Applicant who 1 is the child’s primary caregiver. The processes were served on the Respondent, but he failed to file any affidavit in opposition to contest the application. The Applicant states in her affidavit in support that her relationship with the Respondent has ceased to exist and the child has been under her sole care, custody and protection. The Respondent has been a full-time resident of the United States of America since before the child’s birth, while the Applicant has lived in Ghana with the child until she traveled to Europe in February 2024. The Respondent when visiting Ghana does not have a fixed place of abode. The Applicant on the other hand, resides in an eight-bedroom family home in Community 12 with her siblings and mother, who assist her in caring for the child. The child is a special needs child with a speech impairment and as a nurse, the Applicant has sought professional assistance for the child’s development. The Applicant further states that the Respondent's involvement in the child's upbringing has been minimal. Apart from sending clothing and food items after the child’s birth, the Respondent has played a limited role, only contributing to school fees for the first time in the 2023/2024 academic year. Upon learning that the Applicant had traveled abroad, the Respondent made plans to take the child to live with him. The Applicant contends that the Respondent is not equipped to care for the child and that she and her mother have always been the child’s primary caregivers. She further argues that it would not be in the best interest of the child to relocate at this stage, given her stable home environment and schooling in Ghana. Additionally, since the child is a girl approaching adolescence, the Applicant and her mother are better suited to provide her with proper guidance and care. The Applicant therefore prays this Court to grant her sole custody and to appoint her mother as the 2 legal guardian in her absence with the Respondent being granted only limited access during his annual visits to Ghana. LEGAL ISSUE: Whether or not the Applicant is entitled to the grant of sole custody of the minor. ANALYSIS: Section 43 of the Children’s Act, 1998 (Act 560) provides that: “A parent, family member, or a person who is raising a child may apply to a family tribunal for custody of the child.” Although Section 43 refers to the Family Tribunal, Section 42(1)(a)(iv) of the Courts Act, 1993 (Act 459) confers jurisdiction on the Circuit Court to make orders regarding the custody and guardianship of infants. The primary consideration in a custody application is the welfare of the child as emphasised in Section 2 of Act 560. Under Section 45(1), a court making a custody order must consider the best interests of the child and the importance of a young child being with the mother when determining custody and access. Some key factors the court may consider include: • The age of the child, • The importance of a child being with the parents, unless the child is persistently abused, • The need for continuity in the care and control of the child, • The views of the child, if independently given, • The need to keep siblings together, and • Any other relevant matters. 3 In the case of Happee v. Happee [1974] 2 GLR 186, the court held at page 190 that: “In deciding which of the two parents should have custody of their child, the paramount consideration is the child’s own welfare. All other considerations are subsidiary. Section 22 of the Matrimonial Causes Act, 1971, deals with the custody and financial provision for children of the marriage. Subsection (2) of that section enjoins the court, in deciding on custody, to have regard to what is reasonable and what will be for the benefit of the child.” It is trite law that every child has the right to grow up under the care and control of a biological parent and no child should be deprived of this right unless circumstances dictate that such removal is necessary for the welfare and best interests of the child. Thus, considering the welfare and best interests of the child as required by Sections 2 and 45(1) of the Children’s Act, 1998 (Act 560) and the legal principles established in Happee v. Happee [1974] 2 GLR 186, the Court finds as follows: 1. The Applicant has been the child’s primary caregiver providing stable housing, specialised care and financial support. 2. The Respondent has had minimal involvement in the child's upbringing and lacks a permanent residence in Ghana and has not demonstrated the ability to provide continuous care. His plans to relocate the child lack practical considerations for her special needs and schooling. 3. Relocating the child to the Respondent’s care would disrupt her education, routine, and specialised support for her speech impairment. 4. As an 11-year-old girl, continuity in care from the Applicant and her mother is in her best interest. Accordingly, the Court grants the Applicant sole custody of Adiel Asare-Menyah, aged 11 years. The Applicant’s mother, Augustina Kusi is appointed temporary guardian in the Applicant’s absence. The Respondent is granted reasonable access during his annual visits to Ghana and communication with the child via phone. The respondent is 4 restrained from removing the child from the jurisdiction without the consent of the Applicant in writing. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 5