CUSTODY AND MAINTENANCE OF CHILDREN IN UGANDA: WHOSE RIGHT AND RESPONSIBILITY?

Children Act as amended in 2016

Who is a child for purposes of Custody, maintenance and adoption?

According to the Constitution and section 2 of the Children Act as amended in 2016, a child is a person below the age of 18 years.

Meaning of custody

While the term Custody is not defined by the Children Act as amended in 2016, the Act defines a custodian as the person in whose care a child is physically placed. The definition of custody can be found in case law.  In the case of Ali Issa & Fatal Yusuf, court defined custody in the following words: “the word custody when used in connection with children essentially concerns control and preservation, care of the child’s passion, physical, mentally responsibility for a child in regard to its needs, food, clothing, instructions and the like”. The Singaporean Court of Appeal in the case of CX v. CY [2006] 4 LRC gave a clearer definition of custody; “Custody as a general concept is divided into two smaller packages, that is ‘care and control’ and residual ‘custody’. Residual ‘custody’ is no longer the same concept as our general understanding of custody. Instead, residual ‘custody’ is the package of residual rights that remains after the grant of a care and control order that dictates which parent shall be the daily caregiver of the child and with whom the child shall live. To put it simplistically, ‘care and control’ concerns the day-to-day decision-making, while residual ‘custody’ concerns the long-term decision-making for the welfare of the child. Care and control concerns the right to take care of a child and to make day-to-day, short-term decisions concerning the child’s upbringing and welfare. Custody without care and control (that is, custody in its narrow sense) concerns the right to make the more important, longer-term decisions concerning the upbringing and welfare of a child”.

Guided by the above definition, the Court of Appeal of Uganda in the case of Otto Methodius Pacific-v- Edyline Sabrina Pacific stated that custody is not only about care and control and access but also involves the right to make long term decisions like education, religion, major healthcare decisions and others relating to a child.

Law Applicable

Custody and maintenance of Children in Uganda is among others governed by the 1995 Constitution, the Children Act Cap 59 as amended in 2016, Divorce Act and the Children (Family and Children Court) Rules. Uganda is also a party to the United Nations Convention on the Rights of the Child 1989. The needs of children are the same worldwide and this explains why the Children Convention is the most instrument ratified worldwide. Except for South Sudan and United States, all United Nations member states have ratified the Children Convention. Some of the provisions of the Convention have been domesticated into Ugandan law under the Children Act as amended in 2016.

 

Who has jurisdiction to grant custody Orders

The Children Act as amended in 2016 establishes the Family and Children Court presided over by a magistrate not below grade two. The Family and Children Court has power to hear and determine applications relating to child care and protection. The application for custody can be made by sole applicant or joint applicants. The application for custody can be made by any person as it is not limited to biological parents only.

When does the issue of custody of a child arise

The issue of custody of children may arise during proceedings for divorce, separation, nullity or during proceedings for declaration of parentage. The issue of custody can also arise where the parents were not married but cohabited.

Interim custody Order and Custody by Agreement

The Children Amendment Act 2016 introduced the concept of interim order. Where a child is suffering or likely to suffer harm, a probation Social Welfare Officer, mother, father or guardian of a child may apply to the family and children court for an interim custody order pending the determination of custody of the child by the court. Before granting an interim Custody Order, the Court has to be satisfied that the child is suffering or likely to suffer harm if the order for interim custody is not issued or that the order is in the best interests of the child.

 

The Children Amendment Act 2016, also introduced the concept of custody by agreement.

The parents of a child may enter into a written agreement to determine which of them shall have custody of the child. Court may recognize an agreement made between the parents of a child giving the custody of the child to one of the parents, except where court finds that enforcing the agreement would not be in the best interest of the child. Court shall only recognize a Custody agreement if it is satisfied that there was no duress or fraud involved in making the agreement.

Who has a Right to Custody of Children?

Both parents have similar and equal rights with regard to their child. Children may not be separated from their families or the persons entitled to bring them up against the will of their families or of those persons except in accordance with the law. While Article 34(1) provides that subject to laws enacted in their best interest, children shall have the right to know and be cared for by their parents or those entitled by law to bring them up.

Parents have a fundamental right to care and bring up their children. In the case of Rwabuhemba Tim Musinguzi v. Harriet Kamakume Supreme Court Civil Application No. 142 of 2009 stated that “Parents have a fundamental right to care and bring up their children. This is a constitutional right. Of course it is not considered in isolation, the welfare of the child is a consideration to be taken into account, and at times may be the paramount consideration. A parent can only be denied the right to care for and raise her children when it is dear and has been determined by a competent authority, in accordance with law, that it is in the best interest of the chi/d that the child be separated from the parent… both parents have similar and equal rights with regard to their child”.

 

Article 18(1) of the United Nations Convention on the Rights of the Child 1989 to which Uganda is a party imposes a duty on State parties to use the best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Some of the provisions of this Convention have been incorporated in the Children Act.

Where a competent authority determines in accordance with the laws and procedure applicable that it is in the best interest of the child to separate the child from his or her parent, the best substitute care available shall be provided for the child.

Rights of children

Every child has right to live with his or her parent or guardian, where capable, express his or her view, belief or opinion on any matter that affects his or her wellbeing, right to access any information to which a parent, guardian or other person in authority deems critical to the child’s well-being, right to be registered after birth, right to a name and nationality, inherit property where applicable, right to safety, privacy, information and access to basic social services, effective legal aid including representation in all civil, criminal and administrative proceedings among others.

 

What then does court consider before granting Custody

The considerations for granting custody lie in statutory provisions, case law and the particular facts of each case. The Constitution, the Children Act and international law emphasize the right and duty of each parent to care for and bring up their children. The Constitution emphasizes the right of children to know and be cared for by their parents or those entitled to bring them up.

The paramount principle in cases of custody and issues of upbringing children, is the welfare of the child. The Supreme Court has reaffirmed this principle in the case of Re M (an infant) Adoption Cause No. 9 of 1995 that in all matters relating to children, the welfare and best interests of the child shall be paramount.

According to Section 3 of the Children Act, the welfare of the child shall be of paramount consideration whenever the state, a court, a tribunal, a local authority or any person determines any question in respect to the upbringing of a child, the administration of a child’s property, or the application of any income arising from that administration. In all matters relating to a child, regard shall be had to the general principle that any delay in determining the matter is likely to be prejudicial to the welfare of the child.

While Court or any other person is determining questions of upbringing of the child, regard should be had to the ascertainable wishes and feelings of the child concerned, with due regard to his or her age and understanding, the child’s physical, emotional and educational needs, the likely effects of any change in the child’s circumstances, the child’s sex, age, background and any other circumstances relevant in the matter, any harm that the child has suffered or is at the risk of suffering and where relevant, the capacity of the child’s parents, guardian or any other person involved in the care of the child, and in meeting the needs of the child.

What then is meant by welfare principle

Though the term welfare is incapable of exact definition, when used in relation to custody of a child means that all circumstances affecting the wellbeing and upbringing of the child have to be taken into account and the court to do what a wise parent acting for the interest of the child ought to do.

According to the case of Walker-v- Walker and Harrison (1981) N2 Recent Law 257, welfare is an all-encompassing word which includes material welfare, both in the sense of an adequacy of resources to provide a pleasant home and comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. Although material considerations have their place, they are secondary matters and more important are stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child’s own character, personality and talents.

 

In Uganda, the issue of welfare of a child has been considered in a number of judicial decisions. In the case of Bishop David Kiganda vs. Hadija Nasejje Kiganda HC Divorce Cause N0.42 of 2011, Judge B. Kainamura observed that the paramount principle in cases of custody is the welfare of the child. The Court found that the child had been in the custody of the Petitioner since 2006 when the couple separated, the Petitioner was allowed to retain custody of the child.

Age of the child

Where issues of custody of child is between the father and its mother and taking into account the paramount interest of the child, custody of such child, especially when it’s of tender years must be granted to the mother. See Samwiri Massa vs. Rose Achen [1978] HCB 297

 

Wishes of the children

In determining any question relating to the upbringing of children and particularly custody, the court or any other person should have regard to the ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding. The Court should determine whether the children’s level of maturity enable each of them to have their wishes considered. While Court may not necessarily agree with what the children want or doing what they want but paying proper respect to the older children who are of age and attention maturity to make up their minds as to what they think is best for them.

 

Sole or Joint Custody

Both parents have a constitutional right to care and bring up their children. However, the right is not considered in isolation. The welfare of the child is the paramount consideration to be taken into account. Thus a parent can only be denied the right to care for and raise her children when it is clear that it is in the best interest of the child that the child be separated from the parent.

The Children Act under section 86 encourages during separation, divorce or nullity cases joint consultation between the parents in bringing up the child where the circumstances permit and whenever possible. While it is not unreasonable for most people to quickly conclude that joint custody presupposes cooperation and communication between the parties, joint custody can be ordered even where the parents neither correspond or talk to each other as it is often the case in most divorce or custody proceedings. This is because while as between the parties there is bitterness, it does not necessarily follow that this would spill over in determining the educational needs of the children. Both parents have and continue to have the children’s interest at heart. In the unlikely event that an impasse arises, the parties can always seek assistance of the court.

The welfare of the children does not only require that both parents be involved in the children’s upbringing but also demands that both parents be involved in determining what is best for them in that regard. The court should not decree an arrangement which gives an impression to a child that either the father or mother does not care about his welfare.

In the case of Otto Methodius Pacific-v- Edyline Sabrina, the Court of Appeal of Uganda adopted reasoning of the Singaporean Court of Appeal in the case of CX v. CY (supra), which recognized that in any custody proceedings, it is crucial that the courts recognize and promote joint parenting so that both parents can continue to have a direct involvement in the child’s life. The Court noted that parental responsibility is for life and that courts should endorse the concept of joint custody. Court should not assume that sole custody orders should be made simply because parents display animosity towards each other. Joint custody could still be ordered even if there was apprehension that the parties might be unable to agree. The fact that the parties cannot agree during divorce proceedings does not necessarily mean that they would be unable to agree on the future long term interests of the child, particularly where the allegations against each other arose from being unhappy with each other. Where a parent has care and control over a child, and the other parent has access to the child, and is also obliged to pay or contribute towards his or her maintenance, it is appropriate for the child to be placed in their joint custody. It is only when it is evident that joint Custody will not work that an alternative order should be made. Courts are no longer inclined to assume that sole custody orders should be made simply because parents display animosity towards each other in the midst of litigation.

Viewed from the above perspective, the Court of Appeal of Uganda in the case of Otto Methodius Pacific-v- Edyline Sabrina Pacific concluded that sole custody should be exceptional, and should be granted only where for example physical, sexual, or emotional abuse by one parent is established. A decision giving sole custody to one parent with minimal access/visitation amounts to excluding that parent from the upbringing of his or her children, which should be done upon evidence that he or she is not suited for the job. The Court should give reasons why it has given such little time to the one parent with the children, especially if there is evidence pointing to the fact that both parents love their children. The test should not be which parent is best suited to be granted custody but what is in the best interests of the child.

Where one of the parents requests for the joint custody and the other does not oppose it in his or her evidence, the Court should considered it. A court should not intervene unnecessarily in the parent-child relationship where there is no actual dispute between the parents over any serious matters relating to the child’s upbringing. The Court should make investigation on the workability or impossibility of a joint custody order. Where there are no exceptional circumstances established to warrant sole custody, grant of a sole custody order amounts to misdirection and a misapplication of the welfare principle.

Burden of proof

The Constitution of Uganda and the Children Act gives both parents equal rights to care for their children unless there are clear grounds that it would not be in the best interests of the children. For one of the parents to be denied custody, there must be evidence disentitling him or her from having custody of the children and Court must not only consider which parent is suited to have custody without considering what the best interest of the children is.  The court is required to consider other interests of the child and allow parties to adduce evidence thereof.

Unfit parents and Variation of custody order

Where the court finds during divorce, separation or nullity proceedings that the child is suffering or is likely to suffer significant harm as a result of both parents being unfit to have custody of the child, the court may place the child in the custody of a fit person, but the parents shall be allowed to have reasonable access to their child unless it is not in the best interest of the child.

Where the court is satisfied that the parent who has custody of the child is willfully neglecting or mistreating the child, custody can be granted to the other parent.

Maintenance

The law imposes a duty on the parent, guardian or any person having custody of a child to maintain that child. The duty of the parent to maintain gives a child a right to education and guidance, immunization, adequate diet, clothing, shelter and medical attention. Thus maintenance includes feeding, clothing, education and the general welfare of the child. Even in cases of divorce, separation or nullity, the law requires both parents to continue maintaining and educating their child.

Application for child maintenance order

The law allows the mother, father, or guardian having custody of the child to make an application for maintenance order against the father or mother. Where a declaration of parentage has been made in respect of a child, such a child can apply for a maintenance order through a next of friend. An application for maintenance of a child may be made during subsistence of marriage, proceedings for divorce, separation, nullity of marriage or proceedings for declaration of parentage or after a declaration of parentage has been made. The application can be made at any time during pregnancy and must be made before the child attains 18 years since it ceases to have effect upon attaining 18 years.

Where the parent who has been declared to be the mother or father of the child has died, the law allows an order for maintenance to be made and enforced against the estate of the deceased. The money payable under a maintenance order is payable to the applicant except where a custodian has been appointed in which case, the money is payable to the custodian. The court may also order that the money be paid in court and then to the applicant or custodian as the court may direct.

Conclusion and way forward

Whenever the issue of custody arises, the parents should always ensure that whatever they do, they are guided by the welfare of the child. The parents should endeavor to settle the issue of custody amicably before taking the matter to court. It is always important to seek legal advice from a family law attorney whenever the issue of custody and maintance arises.