OPPONG VRS. ADU-SARPONG (CCD/C6/22/24) [2024] GHACC 328 (29 October 2024)

CORAM: HER HONOUR HALIMAH EL-ALAWA ABDUL BAASIT (MRS), JUDGE, SITTING AT THE CIRCUIT COURT, DANSOMAN-ACCRA ON THE 29TH DAY OF OCTOBER, 2024. SUIT NO. CCD/C6/22/24 IN THE MATTER OF AN APPLICATION FOR LEGAL CUSTODY ORDER PURSUANT TO ORDER 43 & 45 OF THE CHILDREN'S ACT 1996 (ACT 360) AND IN THE MATTER OF AN APPLICATION BY KOFI KODOM (LAWFUL ATTORNEY) IN RESPECT OF JADA YAA-GYAFO SARPONG (CHILD). PETER OPPONG SUING PER HIS LAWFUL ATTORNEY - APPLICANT KOFI KODOM VRS GABRIEL DONYINA ADU-SARPONG - RESPONDENT Parties present No Legal Representation ================================================================== RULING-APPLICATION FOR CUSTODY This is the Ruling on an Application for Custody of Jada Yaa-Gyafo Sarpong (hereinafter referred to as the ‘Child’) pursuant to Orders 43 and 45 of the Children's Act, 1998 (Act 560). BACKGROUND 1. The Applicant, on the 11/9/24 and through his Lawful Attorney, applied for the custody of the above mentioned child. In an accompanying Affidavit in Support, the Lawful Attorney stated among others, that basis for the instant Application is Ruling-In the matter of Application for Custody Page 1 of 6 that the biological parents of the child are currently not working and as a result, the Applicant is willing to let the child join him in Austria for a proper care. He added that the Applicant is putting in a Visa Application for Jada Yaa-Gyafo Sarpong to join him. The Lawful Attorney deposed further that the Respondent herein has expressed his desire for his biological child to stay with the Applicant in Austria as he does not object or oppose to the Applicant's application for custody. 2. The Respondent, being the biological father of the child, deposed in his Affidavit of Consent, stating among others that the Applicant is the Uncle of the child and has been remitting the child as the parents are not working. He added that the Applicant is desirous of having custody of the child for the purpose of providing her with maintenance, good education and a better future. To the Respondent, custody of the child by the Applicant will be in the best interest of the child as both parents are currently not working, hence his consent to the instant Application. The child’s mother, pursuant to a Court Order, also filed an Affidavit of Consent and stated among others that the custody of the child by the Applicant is in the best interest of the child as the Applicant will o provide her with protection and care needed since both parents are currently unemployed. Hence, her full consent and approval to the Applicant to have custody of the child herein. Issues and Analysis 3. In view of the above and upon considerations of all the processes filed, the main issue for consideration is whether or not the Applicant ought to be granted custody of the child herein. In making a determination on whether or not to grant custody, it is important to state emphatically that there is no prima facie right to the grant of custody of the child to anyone. What the Court does is to make a determination solely on what is in the best interest of the child and what will best Ruling-In the matter of Application for Custody Page 2 of 6 promote her welfare and happiness. So that the Court, irrespective of the wishes of the parents and/or the Applicant, will want to ascertain from the child what she wants or what her preference is. It must however be emphasized that the consideration given a child's preference in awarding custody depends upon several factors including but not limited to : (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. 4. 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’. In a bid to determine the preference of the child, the Court asked the child some few questions and the following were some of her responses; ‘…I do not know why I am in court today. I love my father and mother but I like my mother more. I will not like it if someone takes me away from my mother and I will not be happy if I do not stay with my mother. …’ 5. The laws governing custody in Ghana is governed by several laws but especially, the Children’s Act, 1998 (Act 560). So that, irrespective of the wishes of a child, the court is mindful of the ‘Welfare Principle’ as posited by Section 1 of Act 560 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 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.” In the case of Attu vs. Attu [1984-86] 2 GLR 743, the learned Judge was Ruling-In the matter of Application for Custody Page 3 of 6 of the opinion that ‘...in considering matters affecting the welfare of the infant, the court must look at the facts from every angle and give due weight to every relevant material’. 6. Per Section 43 Act 560, ‘… a parent, family member or any person who is raising a child may apply … for custody of the child’. It must be emphatically stated that per the evidence on record, the Applicant herein is a brother to the mother of the child and both parents of the child have consented to the instant Application because they are currently unemployed and the Applicant is willing to take custody and maintenance of the child. The child, however, is barely Six (6) years old and has an older brother as a sibling. As part of her testimony before this Court, the child said as follows; ‘… I do not know Mr. Peter Oppong (Applicant). I will not like it if Mr. Peter Oppong comes to take me away from my mother. I will like to go to abroad but if I go abroad, I want to go with my mother and stay there together with my brother and father…’ 7. Section 45 of (1) Act 560 provides that in granting custody, ‘the 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’. 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, particularly girls or those who for some special reason need a mother’s care…’ Similarly, in Bentsi-Enchill vs. Bentsi- Enchill [1976] 2 GLR, the court held that ‘the primary concern of the court is to ensure that there are appropriate safeguards for a child’s general welfare, irrespective of the interests of the parents… Normally the mother should have the care and control of young or sickly children (particularly girls) or those who for some other reason need a mother’s care.’ The Court also takes cognisance of the Section 45 (2) (d) of Act 560 which states that ‘…in considering custody, the Family Tribunal shall consider…that it is desirable to keep siblings together…’ Ruling-In the matter of Application for Custody Page 4 of 6 8. The Applicant herein wants custody of the child simply because her parents are unemployed and he (the Applicant) is willing to maintain and take care of the child. The evidence shows that both parents have consented to Application but the ultimate decision of whether to grant custody or not rests with the Court. It is the Court’s duty to protect the child irrespective of her wishes, the wishes of her parents and the wishes of the Applicant. Section 2 (1) of 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’. 9. In view of the above, the Court is of the opinion that the child herein is too young to be separated from her parents, especially her mother as well as her only sibling. Section 5 of Act 560 is on the Right to grow up with parents and it is stated that ‘… 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…’ Per the evidence on record, the only reason behind the instant Application is because the parents of the child are unemployed and the Applicant is willing to cater for the needs of the child if the instant Application is granted. 10. Additionally, it must be further emphasized that is the utmost responsibility of biological parents of a child to cater for the child’s needs. These parents equally have a shared fundamental responsibility for the child’s upbringing with the mother being likely to meet the needs of the child at this early stage of her life. Section 6(2) of Act 560 provides that ‘… every child has the right to life, dignity, respect, leisure, liberty, health, education and shelter from his parents…’ The import of Act 560 is that it is the utmost duty and responsibility of every parent to see to the upbringing of their child. Thus, with due respect to the parents of the child, the Ruling-In the matter of Application for Custody Page 5 of 6 Court is of the considered opinion that granting custody of their child to another on the grounds that they are unemployed is not only flimsy but untenable as well. Additionally, the Court humbly opines further that the Applicant, with due respect to him, can still provide and cater for the needs of the child, if he wants to, without necessarily applying for the custody of the child. Conclusion 11. In summary, and upon consideration of the totality of the evidence before me as well as the innocent views expressed by the child, I am of the considered opinion that it will not be in the best interest of the child to grant this instant Application. The child appears too young to be separated from her parents and her sibling. The Court opines that the psychological effect of removing her from the current environment and sending her to a foreign environment without her biological parents and sibling is likely to be dire. In the circumstances, the Application is dismissed. H/H HALIMAH EL-ALAWA ABDUL-BAASIT CIRCUIT COURT JUDGE Ruling-In the matter of Application for Custody Page 6 of 6