CHILD CUSTODY ON FAMILY BREAK DOWN
Introduction
The question of who shall have responsibility for the care and upbringing of a child arises normally at the time parents wish to live apart and have not made suitable arrangements for the long term care of their child or children. It is in that context that a court of law is invited to intervene to allocate responsibility for the care and upbringing of the affected child or children. This Lecture examines the principles applicable in the determination of who shall have responsibility for the care and upbringing of a child when the family breaks down.
Applicable Principles
It is widely accepted that the family is “the natural environment for the growth and well-being of all its members and particularly children”[1] Hence, when unfortunately, parents divorce it becomes necessary to determine who of the two parents will reside with the child and provide a home for that child while the other parent continues to discharge his or her parental responsibility as determined by the court applying the principle of best interests of the child.[2]Unless there are reasons to the contrary, the court will normally place custody of the child with one parent and allow the other access to the child at predetermined intervals. The court will also make maintenance orders requiring the non-custodian parent to provide periodic maintenance to the child including other necessaries of life depending upon the age and needs of the child.
Where there are exceptional circumstances making it undesirable to entrust a child with any of the two parents, the court may order that the child be placed under the care of a relative or an institution responsible for children.[3]In all cases involving the determination of a child’s future upbringing the court must apply the best interest standard.
Best Interest of the Child Principle
Section 125 (2) LMA states that in deciding in whose custody an infant should be placed, “the paramount consideration shall be the welfare of the infant.” The terms “welfare of the infant” and “best interest of the child” have the same meaning and are often used interchangeably[4]. However, the modern and more widely used term is the best interest of the child. In J v C,[5] a leading case on the meaning of best interest principle as a paramount consideration, Lord McDermott stated that the paramountcy principle connotes:
“a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term is now to be understood. That is the first consideration because of its first importance and the paramount consideration because it rules upon or determines the course to be followed.”
Hence, as noted by Bromley and Lowe, in decisions affecting the child the court’s sole concern is the child’s welfare and other factors “are relevant only to the extent that they can assist the court in ascertaining the best solution for the child.”[6] How does the principle of best interests apply in practice? Consider for example a case of child abduction by parents. Where the child after abduction has lived for a long time with the abductor parent and has become settled in that home environment, the court will not place much weight on the wrong committed by the abducting parent. Rather, it will give priority and place emphasis on the harm that the child would suffer if separated from the abductor parent. If there are no other factors to contradict the best interests principle (except for the fact of abduction), the court will not remove the child from the abductor. In other words, court will not seek to address the wrong committed by one parent against the other. Rather, it will make a decision which is in the best interest of the child.
It must be stressed however, that the best interest of the child has at least two levels of emphasis, that is, the strong and the weak version. The weak version states as provided, for example, in Art 3 CRC that “the best interest of the child shall be a primary consideration.” The use of the indefinite article “a” shows that the decision-maker has to put into consideration not only the best interest of the child but also other factors in order to arrive at a decision affecting the child’s interests. For example number of considerations including the wishes, in child adoption, the court is expected to take into account the views and wishes of the biological parent before it makes an adoption order.
Indeterminacy of the Best Interest
Apart from the strong and weaker version of this principle, the best interest is widely known to be indeterminate and difficult to apply in practice. There are many reasons for this. First, decisions that seek to promote the best interest of the child will depend on the context or a matter before the court. As noted above, in child adoption cases, the court will not order adoption where the parents are opposed to it. It is a different case if the court is to determine which of the two parents should have custody of that child. The application of best interest also depends on the time and the society’s scientific understanding of what actually promotes the child’s best interest. Hence, social, economic and scientific change will inevitably affect the court’s perception and decision as to what is in the best interest of the child. Cultural and religious factors have also an influence on the decisions we make about what will promote the child’s best interests. In order to reduce the uncertainty in the application of this principle, the English Children Act 1989 included a checklist, as noted below, to assist the court in applying the principle.
Best Interests Check-List
The best interest checklist simply means a further elaboration of the best interest principle to provide guidance to the court in the application of this important guideline. Six of the most widely accepted items in the checklist include the following:
i) Custody of a young child must be with the mother unless there are contrary indications; (ss 26(2), 39 (1) LCA and s125(3)LMA)[7]
ii) The views of an older child must always be sought and seriously considered before a decision is made affecting the interests of that child, taking into consideration the child’s age and understanding; (s 39(2)(d)LCA, s125(2)(b)LMA)[8]
iii) Siblings should not be separated unless there are compelling circumstances. (s39(2)(e)LCA, s 125(4)LMA)[9]
iv) Delay in resolving matters affecting a child is likely to be detrimental to the child; (s 2; First Schedule; Guiding Principles; Uganda Children Statute, 1996)
v) Removing a child from a familiar environment where he or she has become settled is likely to be detrimental to that child best interest (ss 26(2), 39(2)(f) LCA and s125(3) LMA.
vi) In making a decision affecting a child or children, the court or any decision maker must consider each child individually, the age and gender of the child; and further consider the effect of that decision on that particular child (s39(2)(b)LCA and s125(4)LMA.
The best interest checklist was first included in the English Children Act 1989. Section 1 of the Act states, that when a court determines any question with respect to the upbringing of the child or the administration of the child’s property, or the application of any income arising from such property, “the child’s welfare shall be the court’s paramount consideration.” The foregoing provision limits the application of the best interest principle to specific matters stated in the Act.
Since the 1990s the best interest principle has become adopted by certain jurisdictions as a general principle of law to be applied in the interpretation and application child-specific legislation. A good example is the Uganda Children Statute of 1996 and the South Africa Children Act As a general principle of the whole Act it requires courts to apply this principle in the interpretation and application of the entire legislation and in all decisions affecting children. The inspiration for a wider application of the best interest principle comes from Art 3 of the UN CRC and Art 4 of the OAU Charter on the Rights and Welfare of the African Child (1990). The broadening of the best interest standard to apply to all child related decisions in certain jurisdictions is a direct consequence of the best interest acquiring an international status as a principle of children’s rights law (Philip Alston et all).
The Law of the Child Act 2009 contain a checklist under s39 which is combined with the rights of the child under s 26 LCA. The LCA also adopts the best interest principle as a general guideline of the Act. Section 4 LCA states that “the best interests of the child shall be the primary consideration in all actions concerning a child whether undertaken by public or private social welfare institutions, courts or administrative bodies. This is a clear domestication of Article 3 of the CRC even though the implications of this measure are yet to be fully explored. On its face, section 4 LCA requires that the best interest of the child principle should guide all decisions affecting children whether made by public bodies such as the courts in the application of any legislation including the LCA, or by private social welfare institutions and other bodies whose decisions affect children. Yet it remains to be seen whether s 4 LCA applies to the whole LCA and whether the section goes beyond the LAC to apply to all decisions affecting the child made elsewhere and in other contexts in the private and public spheres.
There are additional guidelines which appear in the LCA in the form of rights of the child. For example, s 7 LCA provides that a child shall be entitled to live with his or her parents or guardians. There are also occasional references to the principle, for example, under s 26 concerning care and upbringing of a child when parents separate or divorce. There is also reference to provisions of the Law of Marriage Act relating to the power of the court to make custody orders under ss 125-137. In sum, the Law of the Child Act 2009 has adopted the best interest principle as a general principle under s 4 and also as a guideline to the application of certain provisions of the LCA and possibly other legislation.
Child Custody on Divorce: Application of Best Interest
Section 26 LCA directs that the provisions of the Law of Marriage Act governing child custody shall apply in all cases where the child’s parents become separated or divorced. In addition to that s 26 LCA makes further provisions that a child shall have a right to reside with a parent who, “in the opinion of the court, is capable of raising and maintaining the child in the best interest of the child.” The child also shall have a right “to visit and stay with the other parent whenever he [or she] desires, unless such arrangement interferes with [the child’s] school or training programme” (s 26(1)(c). But as noted above, the substantive provisions governing child custody and access are to be found under s 125-137 of the Law of Marriage Act. It is to these sections that the discussion turns.
One point to bear in mind is that in theory parents are free to look after their children as they consider fit without any interference by the state. But there are points of departure when the law takes over as super parent and tells parents how to care for their children. This happens in cases where, during marriage, one of the parents, e.g. the mother, invites the court to enter the family unit to resolve a dispute between her and the father over their child. Such an occasion is anticipated under s 125 LMA where the court may, at any time, by order, place an infant in the custody of any of the child’s parent, a relative, or a child welfare organization.
The state may also intervene where parents separate or divorce and the court has to determine who has to have the care of the infant children. According to s 127(1) LMA court may make such an order when granting a decree of separation or divorce or at any time thereafter, on the application of the father or mother of the infant of the marriage (see s 127LMA). When the court intervenes to decide which one of the two parents should have custody of the child, it applies the best interest standard as the paramount consideration (see s 125(2) LMA). But where parents wishing to separate or divorce have made arrangements or proposals regarding the maintenance and custody of their children, the court is required to evaluate these arrangements and to approve them if they are in the best interests of the infant children of the marriage[10]
While the best interest principle remains paramount, the court is also required to have regard to the wishes of the parents, the wishes of the child where such a child is of an age to express an independent opinion. [11]The court must also have regard to “the customs of the community to which the parties belong.” (s25(2)(c) LMA). Where the child in question is below the age of seven year there is a rebuttable presumption that it is in the interest of that child to be with the mother. However, the presumption may be rebutted where changing custody will lead to the unsettling of the child by moving him or her to a new environment. In cases where the determination of custody involves more than one child, the court shall not be bound to place both or all the children with the same parent. Rather, the court shall consider the welfare of each child independently and decide who shall have custody of that child.
The person who has custody of a child has the power to decide all questions relating to the upbringing and education of the child subject to any conditions that the court may consider appropriate to impose. These conditions may relate to the place where the child is to reside, the manner of the child’s education and the religion in which the child is to be brought up. The court may also order that the child be permitted to visit the other parent at specific intervals and for such periods as the court may consider reasonable. Where applicable the court may make orders that the child be permitted to visit the family of a parent who is dead in order to maintain ties with the child’s extended family. In appropriate cases the court may “prohibit the person given custody from taking the infant outside the United Republic of Tanzania.” This condition is relevant where the child’s parents belong to different nationalities and there is concern that the custodial parent may take the child out of Tanzania thus depriving the non-custodial parent regular access to the child.(note that Tz is not party to the Hague Convention on Child Abduction. Placing such a condition is not enough to stop a determined parent)
Summary and Conclusion
This lecture has discussed the importance of the best interest standard and its relevance as a guide in the decision making process involving the upbringing of children in the context of family breakdown. The chapter has noted that historically the principle of best interest first emerged as a principle of family law and was applied by courts when determining the upbringing of a child and the administration of the child’s property. In later years, especially after 1990, the best interest principle emerged as a rule of international children’s rights law with a much wider application. Despite its growth in popularity, the best interest principle is also acknowledged to be vague and difficult to apply. The emergency of the best interest checklist in some jurisdictions was intended to reduce its indeterminacy and to assist courts and other decision makers in arriving at decisions that promote the best interest of the child.
The principle of best interest of the child is contained in the Law of the Child Act 2009 and the Law of Marriage Act 1971. The LMA views the best interest as principle of domestic law while the LCA broadens the application of the principle to cover all matters involving children, both in the context of family law and beyond. The LCA has therefore successfully domesticated the best interest principle as a rule of international children’s rights law. What remains is for the courts and administrative bodies to mainstream this principle in their decision making processes involving children.
Bibliography
Leticia V K Rweyemamu (2006) Judicial Implementation of the Principle of Best Interests of the Child in matters relating to custody: A Case study of Court Decisions from Ilala District, Dar es Salaam, Tanzania, LLM Dissertation in Women’s Law; Southern and Eastern African Regional Centre for Women’s Law (SEARCWL) University of Zimbabwe, Harare, Zimbabwe.
[1] Preamble to the United Nations Convention on the Rights of the Child (1989)
[2] See section 125 Law of Marriage Act [Cap 29 R. E .2002). See also Jerome Joseph v Ester Jerome ( DSM High Court Civ App No 7 of 2009) where Muruke J also relies on Art 3 of the UN Convention on the Rights of the Child (CRC), noting that Art 3 of CRC is also relevant and applicable given that Tanzania ratified the Convention in 1991 and is a party to this treaty.
[3] See Chapter 13 on alternative care for the child.
[4] See s 4(2), 26(2) and 37(4) LCA. See also Articles 3(1) and 21; UN Convention on the Rights of the Child (1989). But also see s 1(1) of the English Children Act 1989 which speaks of “the child’s welfare shall be the court’s paramount consideration.” See also s 39(1) LCA which speaks of “best interest of the child..”
[5] [1970] AC 668, 710-711, [1969] 1 All E R 788, 820-821, HL
[6] P M Bromley and NV Lowe , Bromley’s Family Law, 8thEd (1992) p 336. See also Ramesh Rajput v Mrs Sunanda Rajput 1988 TLR 96 (CA) where the Court of Appeal stressed that “the most important factor in custody proceedings is the welfare of the child.”
[7] See Ramesh Rajput v Mrs Sunanda Rajput 1988 TLR 96 (CA)
[8]See Mariam Tumbo v Harold Tumbo 1983 TLR 293 (HC) where Lugakingira J held that “in matters of custody the welfare of the infant is of paramount consideration, but where the infant is of an age to express an independent opinion the court is obliged to have regard to his or her wishes”.
[9] See Jerome Joseph v Ester Jerome (DSM High Court Matrimonial Civ Appeal No 7 of 2009) per Muruke J where this principle was applied.
[10] See s 108 (c) LMA
[11]See Monica Kasmiri v Tafuteni Shabani Moris DSM High Court Civil Appeal No 79 of 2008 per Wambura J where the judge noted before deciding custody of older children the court ought to call them and seek their views as to which parent they prefer to live with and give reasons why.
