Wilma Akuya Osei
Been thinking about penning a note on my thoughts on a running conversation between myself and a colleague lawyer for a while now. The conversation has bordered on the seeming endemic neglect of child and parental duty. In the past several months my colleague and I have never finished any conversation without returning to this troubling matter and the related matters of spousal and societal neglect of those to whom they owe a duty of care. I guess we caught the bug. Yesterday, as a new batch of professional law students were called to the bar, my thoughts returned to the subject. Perhaps I was hoping there would be some kindred spirits among them. But I digress.
Sometime in 2018 when I did a stint at the Commission for Human Rights and Administrative Justice (CHRAJ) the numbers did not look good for child related rights abuses. Between 2012 and 2017, the Commission’s reports showed that children’s rights issues were the most reported, recording about double the average of all the complaints resolved by the Commission in that period. Of the types of children’s rights complained of, non-maintenance of the child was consistently and outrageously higher than any other in the 10year period between 2006 and 2015. (See table below). In my own experience in the last 4 years, I can say that 4 out of 5 cases I encounter in legal aid sessions involve domestic neglect - neglect of maintenance of children by a parent, failure to accept responsibility for pregnancy, abandonment of pregnant partner, failure to contribute to the upkeep of children in a household or the household generally and all the related ways in which these things manifest. So, it’s a problem!
Source: CHRAJ Case Content Analysis
What baffles me is that this phenomenon seems to run counter to the general Ghanaian claim or belief that culturally (read ‘religion’ as you please) children are a blessing and for which reason we go to great lengths (both males and females) to trumpet the ‘fruitfulness’ of our wombs or ‘potency’ of our loins. By the same logic we point to having a child as a sign of achievement. How then do we end up with so much neglect? And how perverse then is this neglect, when viewed alongside the sense of entitlement that many parents and families have about being cared for by their offspring later in life. Yet somehow, neither the social values nor family and religious structures that maintain the familiar narratives on family, children, marriage and what nots seem to have a handle on this wretched condition. Not too long ago, I encountered a woman who had left her matrimonial home due to mistreatment by the spouse. On requesting that the spouse contribute to the upkeep of the children, she was told by the spouse not to expect a penny unless the children lived with him. When the lady reported this to family members, she was advised to return to the matrimonial home if she wanted her children to be taken care of. There are many examples. Since I have a limited understanding of the socio-cultural context in which I live, save that it is unfavourably tilted against one gender, I will leave the question why these avenues are failing to address the challenge of child neglect hanging for others and shift to clearer waters.
There are several provisions in our laws to deal with breaches of child rights including child maintenance. The CHRAJ experience is an example. The courts and local assembly structures are also lawful avenues to seek redress. However, the relative effectiveness of these legal avenues need questioning and evaluating given the evidential history before us. For instance, do the numbers not suggest that something extra and something different need to be done by the judicial and social welfare systems to stem this tide, including my favourites, some real attention to legal education and access to justice? For starters, I think persons who abandon their duty of care to a child must in turn lose any rights accruing to them under the law as parents, legal guardians, or other family, without prejudice to any legal cause of action available against them. This really is basic.
Here are some thoughts, probably provocative, but worth a starting stub.
There should be no questioning of a child not carrying the name of a parent who wilfully abandons their duty to maintain a child. This should irk the ‘traditionalist’ immensely. I have come across some situations in which people fear that not having a child named by its father risks the father not taking care of the child. Barring any so-called cultural reasons, I suspect Section 41 of the Children’s Act, 1998 (Act 560) which identifies the naming of a child by the father as one way to determine paternity of the child may account for some of this. Well, by that same logic, when a parent neglects to maintain a child, why should the child carry the name of the absentee parent?
A parent who neglects the duty to maintain a child must lose the right of access to the child. Again, both the Constitution of Ghana and Act 560 recognize the place of the parent in the life of a child. For that reason, the Constitution in Article 28 and Sections 43 and 44 of Act 560 gives special consideration for custody and access to “a parent, family member or a person who has been caring for a child” or “a person who is raising a child”. If it is proved that a person is doing none of these duties without justification, the courts should have no problem denying them any rights of custody or access. Similarly, they cannot be heard to be demanding those rights before or without having shown consistency in taking care of their statutory duties.
By Section 13 of the Wills Act, 1971 (Act 360) a parent, among others, who claims that a deceased child has made no reasonable provision for him or her during their lifetime or in a will and that this will cause the person hardship can apply to the court for some provision out of the estate of the deceased. I would think that a person who is shown to have neglected their duty to maintain a child must not be allowed to claim under this provision.
Intestate Succession Act, 1985 (PNDCL 111) equally provides for parents and families as beneficiaries of the estate of a deceased person. It is because the law presumes that they have carried out their duty to care and maintain their offspring. Reason why parents and families in absentia during the lifetime of a person, suddenly appear to claim their status when the person dies. Since it is not always the case that such parents did indeed take care of their children, there should be opportunity for the portions of the estate of the deceased due them to be challenged.
What do you think?