The definition of a child, under our laws, is not straight forward. Our 1992 Constitution recognizes this position and could not give us a general definition of a child. Article 28 (5) of the Constitution which covers the rights of children, provides a restricted definition of a child in relation to only those who can enjoy the rights provided under the said Article. It provides:“For the purposes of this article, “child” means a person below the age of eighteen years.” (emphasis added)
An attempt was subsequently made by parliament to expand these rights as enumerated under the Constitution by an Act of Parliament, named Children’s Act, 1998 (Act 560) as amended by Act 936 at Section 1 which definition can also be said to be a restricted definition since it limits its scope to the provisions of the Act and cannot be said to be a general definition of a child. It provides: “For purposes of this Act, a child is a person below the age of eighteen years.”(emphasis is mine)
Our Intestate Succession Act, 1985 (P.N.D.C.L. 111), however, provides a wider definition of a child (not restricted to age) for the purposes of succession to property under the Succession Act. Its Section 18 provides: “unless the context otherwise requires, “child” includes a natural child, a person adopted under an enactment or under customary law relating to adoption and a person recognised by the person in question as the child of that person or recognised by law as the child of the person;” (emphasis is mine)
From the foregoing, it can be said in conclusion that under Ghanaian law there is no general definition of a child. A child may however be defined in accordance with the circumstances and facts of each case, whether or not limited to age. This is the main reason, I believe, why Honourable Martin Amidu (when he was being vetted by parliament for the position of the Office of the Special Prosecutor) told the Committee in his CV that he had no child because all his children were at the time adults who were married, and would be inappropriate to refer to them as children. Honourable Atta Akyea challenged this definition saying that a child is a child irrespective of the age and cited the Intestate Succession Act as his reference. I think a child is who is defined as such depending on the facts and circumstances of the case. There is no general definition of a child and so both Honourable Martin Amidu and Honourable Atta Akyea (both lawyers), were rightly defining who a child is from their own perspectives, appealing to different authorities.
When it comes to marriage, a child is an issue or offspring of a couple. However, when it comes to custody (seeking legal control, care, supervision or charge of a child) the courts restrict the definition of a child to a person who is below 18 years. Such an order for custody may be made either on the court’s own initiative or on the application of a party to the divorce proceedings. This means that the court will not grant custody in respect of a person who is more than 18 years. The reason being that a person who has attained the age of 18, in the absence of any mental disability, should not be ordered by the court to submit to the control of either of the parents upon divorce. He or she must decide which of the parents to stay with.
The court in the case of ANSAH v. ANSAH [1982-83] GLR 1127, after granting custody of one child to one of the parents, did not really consider the custody of one Clifford into detail as it concluded that he was already eighteen. Again, the court in the case of BARAKE v BARAKE [1993-94] 1 GLR 635 decided that of the four children, one is almost an adult, aged twenty years. The second will soon attain the age of majority, she being about sixteen years. The real contest then centres around the last two aged eight years and nine years, respectively and possibly the second child aged sixteen years. The court accordingly granted custody of the three children in question to the petitioner excluding the 20 year old daughter. The reason was simply because the 20-year-old was no longer a child.
At common law, distinction is made between a legitimate child (one born during lawful marriage) and illegitimate child (one born during dating courting,concubinage or adultery). Now the courts recognize all children as legitimate irrespective of when they were born. At common law a father had no right to the custody of his illegitimate child.The natural father is not in the same position as a legitimate father. At customary law the non-payment of the bride price means that although the children are the legitimate children of the man yet on the break-up of the concubinage he may not be able to obtain legal custody until he pays at least part of the bride price. This customary view can be supported otherwise it will in effect be like permitting a complete stranger custody and depriving a woman and her family of the custody of their child.
The fundamental principle underlying custody is that the welfare of the child is, inter alia (among others), the paramount consideration. The person claiming custody must have, some right to custody before the welfare of the child is considered. The court’s duty with regard to custody of children is to make an order which is reasonable for the benefit of the children.Thus in deciding what is in the best interest of the children, the conduct of the parents is looked at to determine who will best serve the child’s welfare. The courts do not measure the welfare of the child by the standard of living of the parents. Thus, custody will be refused a man who owns ten 5-star hotels and mansions and granted the woman who lives in a rented one-room apartment, where the welfare (happiness, education) of the child will reasonably be served with the woman.
In this regard, the court may award custody of the child to any person, other than the couple, regulate the right of access of any person to the child, and provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage. An order for custody may be made although the child is already out of the jurisdiction.If it is shown that an aunty of the child has been taking care of the child and the livelihood and happiness of the child is dependent on her,with very good future prospects, custody may be granted the aunty and refused the couple. The court’s duty is to protect the children irrespective of the wishes of the parents.
REFERENCES:
IBRAHIM v. AMALIBINI [1978] GLR 368
OFORI v. OFORI [1981] GLR 745
OPOKU-OWUSU v. OPOKU-OWUSU [1973] 2 GLR 349