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Children and the Law (2): Parentage| Custody| Maintenance

In the first part of this article, I dealt with the general rights of a child under our laws. We understood that the best interest of the child is the overriding principle in all matters concerning a child. Also, that parents have the primary duty to ensure that the rights of a child are assured and protected. Parents do this with the help and in collaboration with various institutions that are mandated by law to protect and enforce the rights of children in Ghana. Some of these institutions include Social Welfare Departments under the supervision of the Ministry of Women and Children’s Affairs within district assemblies, the Commission on Human Rights and Administrative Justice (CHRAJ), the Legal Aid Commission and the courts. In addition, the Ghana chapter of the International Federation of Women Lawyers (FIDA Ghana) provides legal support in these matters. Find more on these institutions here.


We now look at how the rights of children vis-à-vis the rights and duties of parents or guardians as regards custody, maintenance and parentage are dealt with under the law and by the related institutions.

Parentage

It takes two to tango so why should the parentage of a child be an issue? Well, sometimes circumstances land us in a place where an interested party is not certain who the mother or father of the child is or is claiming that a parent of a child is not who it is being claimed to be. Unfortunately, this happens often when a mother is abandoned by the alleged father of the child during pregnancy or after birth. It also happens in divorce proceedings, or in matters concerning the administration of the estate of a deceased person. Sometimes even in matters where a person is claiming maintenance for a child, the alleged parent may mount a defense that the child is not his. When this happens, it is important to determine the parentage of the child so as to be able to properly organize the entitlements that are due to a child under the law and to determine who is responsible for ensuring they are met. The Children’s Act, 1998 (Act 560) provides that in such situations, the family tribunal which is a district court has the authority to investigate the matter and make an order for the parentage to be confirmed.

Those who can make an application to the court for the determination of a child’s parentage are the child whose parentage needs to be established, a parent, a guardian of a child, a probation officer, a social welfare officer, or any other interested person. In recent times where parentage can be determined through DNA tests, the applicant, or the court by itself may request for the determination to be done by DNA testing if the applicant is prepared to pay the cost of the test. In the absence of a DNA test, the Children’s Act provides that the court can use the following factors to make the determination:

(a) the name of the parent entered in the register of birth,

(b) performance of customary ceremony by the father of the child,

(c) refusal by the parent to submit to a medical test,

(d) public acknowledgment of parentage, and

(e) any other matter that the court considers relevant to decide on the parentage of a child.



Care and maintenance

Parents have the primary duty of care towards their children or their offspring. Even though socially or culturally, these duties have been divided between the father (males) and the mother (females), the law does not acknowledge such differentiation of roles. Rather it places the duty on both parents jointly and individually. This is to say, both parents are equally and at the same time individually responsible to ensure that the child they bring into being is provided the necessaries of life in accordance with the law.


Section 47 of the Children’s Act on the duty to maintain a child states:

A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, basic education, and reasonable shelter for the child.


This is an extension of Section 6 of the Act on general parental duties and responsibilities which provides among others that:

  1. A parent shall not deprive a child of welfare whether, (a) the parents of the child are married or not at the time of the child’s birth, or (b) the parents of the child continue to live together or not.

  2. A child has the right to life, dignity, respect, leisure, liberty, health, education and shelter from the parents.

  3. A parent has rights and responsibilities whether imposed by law or otherwise towards the child which include the duty to (a) protect the child from neglect, discrimination, violence, abuse, exposure to physical and moral hazards and oppression, (b) provide good guidance, care, assistance and maintenance for the child and assurance of the child’s survival and development, (c) ensure that in the temporary absence of a parent, the child is cared for by a competent person and that a child under eighteen months of age is only cared for by a person of fifteen years and above, except where the parent has surrendered the parental rights and responsibilities in accordance with the law.

  4. A parent is responsible for the registration of the birth of the child and the names of both parents shall appear on the birth certificate except where the father of the child is unknown to the mother.

This is the same consideration that informs the provision in the law that children are entitled to a reasonable provision out of the parent’s estate. In pursuit of this, when a person dies intestate (i.e., without making a will), leaving a child or children, the child or children are one of the main group of beneficiaries of the person’s estate. Even where a person dies testate (i.e., having made a will), the law allows a court to modify the will in order to make adequate provision for any child who has not been satisfactorily taken care of by the dead parent, either in the will or otherwise.


When a person who is legally responsible to provide care and maintenance for a child is alleged to be in breach, an application may be made to the district court for an order against that person. The law provides that the child can do so through it’s ‘next friend’. That is, someone who takes up the child’s interests. A social welfare officer, probation officer or the Commission on Human Rights and Administrative Justice (CHRAJ) can also make such an application. Any person who has custody of the child such as a parent, guardian or any other person can also make an application to the court for a maintenance order.



Custody and access to children

Custody of a child means having the child in one’s possession so to speak and under one’s protection and guardianship. Basically, the person with custody of a child is the person the child is living with. Access to a child means being able to make contact with a child, spending time with the child and or having temporary custody of the child from time to time. When parents live in the same domestic setting, there is a coincidence of custody of and access to children. However, when parents do not live together, the issue of custody and access to the children becomes an important one and must be organized ‘in the best interest of the child’. A parent or anyone with custody or access to a child has the duty to always ensure the best interest of the child in respect of all the rights of a child.

In the absence of the intervention of a court, the living circumstances of the parents, age of the child, economic status or other situation usually influence the arrangements for custody of and access to children. These factors are not necessarily those that the court takes into consideration. However, for as long as the parties involved or anyone concerned are satisfied with the arrangement and abide by it, the assumption is that the custodial and access arrangement around the child are lawful and acceptable. As soon as one party becomes dissatisfied with the situation or arrangement, it means the custody of the child is contested but it does not mean a person even if a parent can take the child away from the other or decide on his or herself how the custodial arrangement must be organized.


Section 46 of the Children’s Act provides:

A person shall not unlawfully remove a child from another person who has the lawful custody of the child.


Thus, custody and access arrangements for a child cannot be done or changed unilaterally or forcefully by one parent or any other person in the absence of mutual agreement. To do so will be unlawful. Where there is disagreement that cannot be settled by the relevant parties, it is the court, and the court alone that may make an order to determine access and custody of a child. The Children’s Act 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’. In similar fashion, ‘a parent, family member or a person who has been caring for a child may apply to a family tribunal for periodic access to the child.’


Some people tend to think that a parent who is financially sound or living in a nice house or is educated or has a good job etc. is the one more likely to be given custody of a child. This is far from the truth. Rather, in deciding what is in the best interest of the child, a court will consider many factors including the following which are stated in Section 45 of the Children’s Act:

  • The age of the child

  • The views of the child if the views have been independently given,

  • The importance of a young child being with the mother.

  • The desirability for a child to be with the parents except where the rights of the child are persistently being abused by the parents,

  • The desirability of keeping siblings together,

  • The need for continuity in the care and control of the child

  • Any other matter that the court considers relevant.


To conclude

This article has sought to shed light on the issues of parentage, custody and maintenance of a children and related matters. It is clear that the law is quite interested in the protection of children and so makes it very clear what steps to take when these rights are not being respected. All these issues can be specifically applied for at the court, whether the parents are married or not and whether they live together or not. There is no need and indeed it is often not helpful, when parents, guardians or other adults use unlawful means, economic duress, or psychological manipulation to get their way. The child is the one that suffers the most when that happens.


Remember, the only standard for deciding these matters is always ‘the best interest of the child’ and by the procedures and guidelines that the law provides.


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