Brief facts

Mawanda Cosma cohabited with Kaitesi Joanna and had two children. Mawanda Brian
aged 14 years and Mawanda Dorcus aged 6 years. Cosma and Joanna eventually
separated and Joanna is staying with the children. Joanna stays in the deep ends of
Katwe slums with her children and is struggling to provide for the children while
Cosma resides in the poshy ends of Upper Kololo in a luxurious mansion since he has a
well-paying job in FXD Airline Company as a pilot. Due to the nature of his job, he is
always travelling out of the country. Cosma is also a heavy drunkard who becomes
extremely violent when drunk and, on several occasions, hosts different women to
satisfy his sexual fantancies when he is back to the country. Cosma believes that his
children are residing in a clumsy environment and associating with children of poor
character yet he can afford to give them a luxurious life style. He thus wants to stay
with his children as he believes they can be well taken care of by his house help at his
home. Cosma has made an application to be granted an order to stay with his children
and has served the said application unto Joanna and both are in court.

LAW APPLICABLE
1. Constitution of the Republic of Uganda, 1995 as Amended
2. The United Nations Convention on the Rights of the Child
3. African Charter on the Rights and Welfare of the Child
4. The Children Act, Cap 59
5. The Children Act Cap. 59 as Amended
6. Case Law

1). As a Magistrate Grade 1, would you grant custody of the children to Cosma?
Elucidate the reasons for your answer.

A child
The constitution of Uganda under Article 257 (1)1 defines a child as a person under
the age of 18 years. Article 12 defines a child as every human being below the age of
18 years. Article 23 also defines a child as a every human being below the age of 18
years. Section 24 of the Children Act also regards a child as a person below the age of
18 years. In the case of Re Kambale,5 a child was defined to mean the person below

1
Constitution of the Republic of Uganda, 1995 as Amended
2
The United Nations Convention on the Rights of the Child
3
African Charter on the Rights and Welfare of the Child
4
The Children Act Cap. 59
5
Re: Kambale (Infant) (Family Cause No: 0003 of 2018) [2019] UGHCFD 5 (9 May 2019

1
the age of 18 years. For children rights to be adhered to the children have to be in
custody of their parents or person granted custody of a child under competent law.

Custody of Children

According to the Black’s law dictionary, 8th edition, 1162,6 custody means the care,
control, and maintenance of a child awarded by a court to a responsible adult. The
children Act does not define the custody but rather defines a custodian in Section 1(f)
to mean a person in whose care a child is physically placed. Case law can also be
relied on while defining custody. For example, in the case of Ali Issa & Fatal Yusuf7,
court defined custody to mean concerns, control and preservation, care of the child’s
passion, physical, and mental responsibility for the child in regard to its needs, food,
clothing, instructions and the like.

Custody concerns the legal rules governing the right of children regarding who to live
with and make decisions concerning the child. These rights continue until a child
attains the age of majority. Custody is the legal process where Court determines who
is entitled to live with. In relation to custody, the guiding principle is the welfare of
the child (the best interest of the child).

In Neale V Clouhoun8, it was held that custody essentially concerns control and
preservation and care of the child’s person, physically, mentally and morally,
responsibility for a child in regard to his needs, food, clothing, instruction and the
like.

The general rule is every child is entitled to stay and live with his or her parents or
guardians unless where a competent authority determines to separate the child in the
interest of the child pursuant to Article 31 (1)9.

Section 5(2)10 states that every person having custody of a child shall protect the
child from discrimination, abuse, violence and neglect.

6
Black’s law dictionary, 8th edition page 1162
7
Ali Issa & Fatal Yusuf (Misc. Application No. 904 of 19991
8
Neale V Clouhoun [1944] S.A.S.R. 119
9
Ibid 1
10
The Children Act Cap. 59 as Amended

2
Parental responsibility

Section 1 (o), defines parental responsibility to mean all rights, duties, powers,
responsibilities and authority which by law a parent of a child has in relation to the
child. Children have the right to know and be cared for by their parents or those
entitled by law to bring them up as provided for in Article 34 (1)11. In matters of
custody, Article 31(4)12 provides that both parents have equal rights in upbringing
and care of their child. This was upheld by the Supreme Court in the case of
Rwabuhemba Tim Musinguzi v Harriet Kamakune 13, where court observed that
parents have a fundamental right to care and bring up their children. In the same
case court also observed that the welfare of child is a consideration to be taken into
account and it may be of paramount consideration.

Section 6 (1)14, provides that, parental responsibility for children is vested on the
parents. This implies that very parent or guardian shall have parental responsibility
for his or her child.

Power of the court to grant custody.

Section 13 (2)15 provides that, a magistrate not below the grade of magistrate grade
II shall be assigned to preside over the family and children court. Section 73(1)16
provides for court’s power to grant custody of a child to an applicant as it deems it. It
follows that the court may, on application by sole or joint applicants grant custody of
a child on such conditions as may be determined by the court. The person seeking
custody has to file a petition to the Family and Children’s court supported by an
affidavit.

Procedure and forum for granting of custody of a child.

Welfare principle

Section 3,17 is to the effect that, “Whenever the state, a court or tribunal, a local
authority or any person determines any question in respect to the upbringing of a
11
Ibid 1
12
Ibid 1
13
Rwabuhemba Tim Musinguzi v Harriet Kamakune (Civil Application No. 142 of 2009) [2009] UGCA 34 (25 August

2009)
14
Ibid 10
15
Ibid 4
16
Ibid 10
17
Ibid 10

3
child, administration of a child’s property or the application of any income arising
from that administration, the welfare of a child shall be of paramount consideration.”

Section 3 (3)18, provides that in determining who to grant custody of a child, the
court should primarily consider the welfare of the child. The welfare principle is the
guiding principle on grant of custody. This section further provides the factors to
consider under the welfare principle as follows; the ascertainable wishes and feelings
of a child with due regard to his/her age, the child’s physical, emotional and
educational needs, the likely effects of any change in the child’s circumstances, the
child’s age, sex, background and any other circumstances relevant to 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.

In Nakagwa V Kiggundu19, it was held inter alia that welfare in relation to custody of
children means that all the circumstances affecting the wellbeing and upbringing of
the child have to be taken into account and the court has to do what a wise parent
acting for the interests of the child ought to do.

In Re M [1967]20, the court gave factors to be considered in determining to whom

custody of a child should be granted as being the welfare of a child, personality and
character of claimants, medical evidence, sex and age of the child, racial and other
background, education, accommodation and other material advantages.

In R V Gyngall21, Lord Kith said, “The term welfare in this connection must be read in
its largest possible sense, that is to say, as meaning that every circumstance must be
taken into consideration and the court must do what under the circumstances a wise
parent acting on the true interest of the child ought to do.

Capacity of the child’s parents in meeting the needs of the child.

First schedule to the Act, Rule 3 22 provides that, the capacity of the parent or
guardian will only be considered where relevant. In Re Hoffman V Hoffman23, Court
ruled that the father’s superior financial position was irrelevant to the issue of
custody since it only went to show that he could support the child when it was living
with its mother.

18
Ibid 10
19
Nakagwa V Kiggundu (1978) HCB 310
20
Re M [1967] 3 ALL ER 1074
21
R V Gyngall [1893] 2 QB 232 at 248
22
First schedule to the Act, Rule 3
23
Re Hoffman V Hoffman (1972)

4
In the case of Re Mc Grath24 Lord Justice Lindley held that, the welfare of the child is
not to be measured by money only nor by physical comfort only. The word welfare
must be considered in its widest sense. The moral and religious welfare of the child
must be considered as well as its physical well-being. Nor can the ties of affection be
disregarded.

In Nyakairu V Nyakairu25, the father’s superior position was relevant since it could be
used to cater for the welfare of the child better than the mother.

In Fatoom Bint Abdul M V Nabiha Bint Ahmed Mohamed Ibrahim 26, Campbell CJ held
that the welfare of a child cannot be and is not intended to be exclusively confined to
the matter of material welfare as opposed to psychological welfare.

Financial superiority was shown to be relevant to show that the child could be
supported in maintenance. However, court observed that the financial position perse
wont override or make one a better parent. The welfare of the child is the paramount
consideration. The father’s money can be given to the mother to support the
children.

The child’s sex, age, background and any other circumstances relevant in the
matter

Section 3 (d)27 of the Children Act Cap 59 as amended provides that the age of the
children should be put in to consideration while determining the issues relating to
children.

In cases of custody of an infant, it is settled law that the welfare of such a child
should be paramount. In Samwiri Masa V Rose Achen28, Where the issue of custody of
a child is between a father and a mother, and taking into account the paramount
interest of a child, custody of such child, especially when it’s of tender years must be
granted to the mother.

Prior to coming into force of the Children Act, there was a preference of Courts that
the mother should have custody of a child of tender years. This position was
emphasized in Kayongo V Sekizibu29.

24
Re Mc Grath (1893) 1 Ch 143
25
Nyakairu V Nyakairu 1979 HCB 261
26
Fatoom Bint Abdul M V Nabiha Bint Ahmed Mohamed Ibrahim [1957] EA 673
27
Ibid 10
28
Samwiri Masa V Rose Achen
29
Kayongo V Sekizibu C.A no.18 of 1978.

5
In Teopista Kayongo30, Court held that, as concerns custody of children of tender
years such should normally stay with the mother unless she is not a fit and proper
person. Where custody is taken away from the mother, she should be free to visit her
children as often as she pleases.

In Karanu V Karanu31, the dispute was over a girl and boy aged 5 and 6 respectively.
They were sickly and needed attention. The courts were of the view that the younger
the child, the greater the need for constant attention and since mothers had been
playing this role better, then preference favoured them.

In Wambwa V Okumu32, where there was a dispute between the alleged/putative

father under Customary Law, and the mother. The preference was given to the
mother for custody of a 4-year-old in the absence of exceptional circumstances.
Custody of an illegitimate 4 years old child was granted to its putative father under
the principles of the relevant customary law. The court held that the customary law
did not take into account the welfare of the child. That in absence of exceptional
circumstances, a four-year-old child would be looked after by its mother.

The likely effects of any change in the child’s circumstances

This is provided in Section 3 (c) of the Children Act as Amended. In Nyakairu V

Nyakairu33, there was disputed custody over a child of a husband and a wife recently
divorced. Among the factors the court considered while applying the welfare principle
is that if the child had been living with the one parent (father) with no harm, it would
not be in the best interest of the child to be shifted to the mother, the environment
they were not used to. In the facts at hand, given the character of the father, the
children are likely to suffer emotionally because of their father’s violence,
drunkenness as well as immorality.

Any harm that the child has suffered or is at the risk of suffering

In custody proceedings, the character of a parent is extremely relevant. Pursuant to

Section 3(1)(b)34, the child’s physical, emotional and educational needs must be
considered. Section 3(1)(e)35, is to the effect that the court must consider any harm

30
Teopista Kayongo (1978) HCB 24,
31
Karanu V Karanu [1975] EALR 18,
32
Wambwa V Okumu [1970] EA 578
33
Ibid 27
34
Ibid 10
35
Ibid 10

6
that the child has suffered or is at the risk of suffering. A person having custody of a
child has a duty to maintain it and this confers upon a child a right to education,
shelter medical attention, adequate diet, clothing and many others.
Availability of the parent

In the case of Kalisa V Kalisa36, the mother was granted custody but entrusted the
child to the care of her mother and went to Nairobi to look for work. The Chief
Justice held that she had displayed lack of care and concern for the child by going to
Nairobi and leaving the children with their grandmother. Her application to shift the
children to Kenya was therefore rejected. In the instant facts, it is clear that due to
the nature of his job, Cosma is always travelling out of the country something that
may hinder him from taking good care of the children.

Finally in the instant facts, it is evident that due to the nature of his job, Cosma is
always travelling out of the country. He is also a heavy drunkard who becomes
extremely violent when drunk and, on several occasions, hosts different women to
satisfy his sexual fantancies when he is back to the country. All this is contrally to the
welfare principle as provided for in Section 337 of the Children Act as Amended.
Considering the fact that in all custody proceedings, the welfare of the child is the
paramount consideration, as a Magistrate Grade 1, I would not grant custody of the
children to Cosma basing on the articles, sections and case law discussed above.

b) What orders could you make in regards to the wellbeing of the children.

A maintenance order under Section 76(5)38 can be made in regards to the wellbeing
of the children. An application for a maintenance order shall be made by complaint
on oath to a family and children court having jurisdiction in the place where the
applicant resides.

The court then issues a summons to the father or mother of the child to appear
before court on a day named in the summons as stated in Section 76(6)39 of the
Children Act.

36
Kalisa V Kalisa (1974) HCB 108
37
The Children Act, Cap 59
38
Ibid 4
39
Ibid 4

7
Further, Section 76(7)40 provides that on proof that the summons was duly served on
him/her seven days or more before the hearing, the court shall hear the evidence of
the applicant and that of the respondent.

Having regard to all the circumstances of the case, the court shall proceed to make
an order against the father or mother for the payment of maintenance to the
applicant for, a monthly sum of money as may be determined by the court and having
regard to the circumstances of the case and the financial means of the father or
mother and the costs incurred in obtaining the order.

Section 76(8),41 states that maintenance of the child shall include feeding, clothing,
education and the general welfare of the child.

Court may also order that the father or mother pay the maintenance money to the
court to be used for the maintenance of the child as per Section 76(9)42 of the
Children Act.

In Re Hoffman V Hoffman43, Court ruled that the father’s superior financial position
was irrelevant to the issue of custody since it only went to show that he could support
the child when it was living with its mother.
Also, in the case of Selamawit Haile v Amanuile Yemane 44, court held that the welfare
principle governing decisions concerning children would demand that financially
capable parents must cater for the needs of their children irrespective of where the
children are and in whose custody they are in.
In conclusion, Court will grant a maintenance order against Mawanda Cosma, the
father of the two children since he is at a better financial position of providing for the
welfare of the child.

40
Ibid 4
41
Ibid 4
42
Ibid 4
43
Re Hoffman V Hoffman (1972)
44
Civil Appeal No. 22 of 2017.