HIGH COURT, ACCRA
Date: 3 FEBRUARY 1975
AZU CRABBE C J
CASES REFERRED TO
(1) In re H. (Infants) [1966] 1 W.L.R. 381; [1965]3 All E.R. 906.
(2) In re T. (Infants) [1968] 1 Ch. 704; [1968] 3 W.L.R.430; [1968] 3 All E.R. 411; 112 S.J. 639, C.A.
(3) McKee v. McKee [1951] A.C. 352; [1951] 1 All E.R. 942; [1951] 1 T.L.R. 755; 95 S.J. 316, P.C.
(4) J. v. C. [1970] A.C. 668; [1969] 2 W.L.R. 540; [1969] 1 All E.R. 788; sub nom. Re C. (An Infant) 113 S.J. 164, H.L,
(5) In re L. (Infants) [1962] 1 W.L.R. 886; [1962] 3 All E.R. 1; 106 S.J. 686, C.A.
(6) Opoku-Owusu v. Opoku-Owusu [1973] 2 G.L.R. 394.
(7) Beckley v. Beckley [1974] 1 G.L.R. 393.
(8) Happee v. Happee [1974] 2 G.L.R. 186.
(9) In re McGrath (Infants) [1893] 1 Ch. 143; 62 L.J.Ch.208; 67 L.T. 636; 41 W.R. 97; 9 T.L.R. 65; 37 S.J. 45; 2 R. 137, C.A.
(10) R. v. Gyngall [1893] 2 Q.B. 232; 69 L.T. 481; 9 T.L.R. 471; 4 R. 488; sub nom. Re Gyngall 62 L.J.Q.B. 559; 57 J.P. 773, C.A.
(11) In re Thain; Thain v. Taylor [1926] Ch. 676; 95 L.J.Ch. 292; 135 L.T. 99; 70 S.J. 634, C.A
(12) In re O. (An Infant) [1965] 1 Ch. 23; [1964] 2 W.L.R. 840; [1964] 1 All E.R. 786; 108 S.J. 117; 62 L.G.R. 267, C.A.
(13) Re Curtis (1859) 28 L.J.Ch. 458.
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(14) R. v. Nash; In re Carey (An Infant) (1883) 10 Q.B.D. 454; 52 L.J.Q.B. 442; 48 L.T. 447; 31 W.R. 420, C.A.
(15) R. v. Barnardo; Jones’s Case [1891] 1 Q.B. 194, C.A. affirmed sub nom. Barnardo v. McHugh [1891] A.C. 388; [1891-4] All E.R.Rep. 825; 61 L.J.Q:B. 721; 65 L.T. 423; 55 J.P. 628; 40 W.R.97; 7 T.L.R. 726, H.L.
(16) Re B. (An Infant) [1962] 1 W.L.R. 550; [1962] 1 All E.R.872; 106 S.J. 489, C. A.
(17) Merest v. Harvey (1814) 5 Taunt. 442; 1 Marsh 139;128 E.R. 761.
(18) Dumbell v. Roberts [1944] 1 All E.R. 326; 113 L.J.K.B.185; 170 L.T. 227; 60 T.L.R. 231; 108 J.P. 139; 42 L.G.R. 111, C.A.
NATURE OF PROCEEDINGS
ACTION for inter alia custody of a child born out of wedlock. The facts are fully stated in the judgment.
COUNSEL
M. A. F. Ribeiro for the plaintiff.
E. D. Kom for the defendant.
JUDGMENT OF AZU CRABBE C.J.
The plaintiff is a national of the Federal Republic of Germany, and the defendant is a Ghanaian who has been living in Germany for the past twenty years. Some time in 1968 the plaintiff met the defendant, then a medical student, in Tubingen in the Federal Republic of Germany, and they formed an association out of which a child was born to them on 7 September 1970. On 18 November 1970, the plaintiff registered the birth of the child at the Office of Vital Statistics, Tubingen, and in the certificate of birth the name of the child appears as Thomas Kwamla Braun. In the eyes of the laws of the Federal Republic of Germany, Thomas Kwamla Braun is illegitimate, and, therefore, only his mother’s name could appear on the certificate of birth. The child lived with the mother until 28 February 1972, when the defendant filed a petition in the German courts for the legitimation of his son. The proceedings were compromised, and it was agreed that the defendant should have access to his son at certain stated times. Accordingly, the defendant withdrew his petition, with liberty to bring a fresh petition at any time he wished. On 12 May 1972, the defendant filed a new petition for the legitimation of his son, but this was dismissed with costs, and the plaintiff was awarded the custody of Thomas Kwamla Braun. The court, however, allowed the defendant a right of access, but reduced the visiting days. On or about 19 October 1974, the defendant, in exercise of his right of access, took the child from the plaintiff on the pretence that he was taking him shopping. This gave the defendant the opportunity to take the child out of the jurisdiction of the German courts, without the consent of the plaintiff, and he travelled over 3,000 miles with him to Ghana. After staying with Thomas in this country for about two months, the defendant entrusted him to the care and custody of his brother, Lieutenant-Colonel Archibald Kwadwo Mallet, and sister-in-law, who live at 34, Juba Road, Burma Camp, Accra. When the plaintiff heard that the defendant had brought Thomas to Ghana, she bought a ticket and flew to Accra on
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19 November 1974, to take her child back to Germany. Accordingly, on 21 November 1974, she commenced the present proceedings, claiming the following reliefs:
(a) A declaration that she is entitled to custody of a child Thomas Kwamla Braun, her son;
(b) Order that the defendant do return the said child to the plaintiff;
(c) Damages incurred as a result of the removal of the said child from the custody of the plaintiff, special damages: ¢2,400.00; and
(d) General damages.
In my view, this is one illustration of those cases which have been aptly described as “kidnapping cases,” and the courts have always frowned upon them. The attitude of the courts has been expressed in the judgments of a few reported cases, and I will gladly quote passages from only two reports. In In re H. (Infants) [1965] 3 All E.R. 906, which was a case in which infants had been removed by a mother without the knowledge of the father from the jurisdiction of an American court to England, Cross J. (as he then was) said at p. 912 as follows:
“The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and, as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. Now for this court to go into the merits of this case will inevitably result in a great advantage to the mother and a great disadvantage to the father.”
Concluding his judgment, Cross J. stated the factors which ought to be weighed in deciding whether the English court should assume jurisdiction and hear the merits of the case concerning the infant, or just send the child back to the jurisdiction from which he has come. The learned judge said at pp. 915-916:
“In infancy cases the welfare of the infant is, of course, the chief consideration; but it is far from being the only consideration. When, in what I may call for short a ‘kidnapping’ case, the judge has to decide whether to send the child back whence he came or to allow the case to be fought out to the end over here, he has to weigh various considerations which may to some extent conflict with one another. On one side there is the public policy aspect, the question of comity and the question of `forum conveniens.’ Again, on the same side there is the question of the injustice which may be done to the wronged parent if the court delays matters and allows the kidnapped child to take root in this country. On the other side, the court has to be satisfied, before it sends the child back, that the child will come to no harm.”
In In re T.(Infants) [1968] 3 All E.R. 411, C.A. Harman L.J. also said at p. 413:
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“This court sets itself against these unilateral movements of children which have been far too frequent in the last few years. The right view is that the court should, other things being equal, set its face against such conduct, and I am supported in that by the observations of Willmer, L.J., in Re E. (an infant) ([1967] 2 All E.R. 881 at p. 885), where, discussing Cross, J.’s judgment ([1967] 1 All E.R. 329), he said; ‘At the outset of his judgment, after expressing his concern at what he described as the growing tendency, which has recently been apparent, of kidnapping children in this way and removing them from the jurisdiction of a foreign court, the judge proceeded as follows ([1967] 1 All E.R. at p. 330): “The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. The substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.” First of all, I would like to say, by way of comment on that passage, that I wholly agree with, and would wish to support, everything that the judge said about the duty of all courts not to countenance behaviour of the kind there referred to’.”
And brushing aside an argument that in that case there was no order of a court, and, therefore, there was nothing to it in the sense that the court ought to set its face against it the learned Lord Justice again said in In re T. (Infants) (supra) at the same page:
“I do not take that view at all. It seems to me that the removal of children from their home and their surroundings by one of their parents who happens to live in or have connexions with another country is a thing against which the court should set its face, and that, unless there is good reason to the contrary, it should not countenance proceedings of that kind. That is precisely what the mother has done here. She did not go to the Alberta court, as she might have done, and get leave to take the children out of the jurisdiction — which for all I know she might have got. She simply took the law into her own hands and spirited the children away – a course of conduct for which the aeroplane of course gives facilities.”
As part of her case, the plaintiff tendered in evidence the order of the German court, whereby she was given custody of the child. But Mr. Kom, counsel for the defendant, objected to this being admitted in evidence on the ground that it does not satisfy the requirements of the provisions under Part V of the Courts Act, 1971 (Act 372), entitled “Enforcement in Ghana of Foreign Judgments and Maintenance Orders.” He referred to subsections (1) and (2) of section 76, which deal with reciprocity, and argued that under that section the Foreign Judgments (Reciprocal Enforcement) Instrument, 1973 (L.I. 824), was made, and that the Federal Republic of Germany is not one of the countries mentioned. This implies
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counsel continued, that judgments or orders by the courts of the Federal Republic of Germany have no force or operation in Ghana, and consequently they are of no evidential value here. Secondly, Mr. Kom contended that the German order is caught by section 77 (1), because it had not been registered in the High Court in accordance with the provisions of that subsection. Finally, Mr. Kom submitted that since the plaintiff could not register the judgment or order and enforce it here, she ought not to be permitted to enforce it indirectly by bringing a substantive action and bolstering her claim with that judgment or order. Counsel stated that Abban J. had recently in similar cases rejected foreign judgments or orders, because they offended against the provisions of sections 76 and 77 of the Courts Act, 1971. I was not shown those judgments or orders of Abban J., but if that conclusion was arrived at by him in proceedings relating to the custody of infants, then I respectfully differ from it. In questions of custody it is well-settled that the welfare and happiness of the infant is the paramount consideration, to which all others yield, including the order of a foreign court of competent jurisdiction. The judgment of a foreign court as to the custody of an infant need not as a matter of binding obligation be followed in the courts of this country. Thus, in McKee v. McKee [1951] 1 All E.R. 942, P.C. Lord Simonds said at p. 948:
“It is the law of Ontario (as it is the law of England) that the welfare and happiness of the infant is the paramount consideration in questions of custody: see Re Laurin ((1927) 60 O.L.R. 409), following Ward v. Laverty ([1925] A.C. 101). So, also, it is the law of Scotland: see M’Lean v. Leftley (or M’Lean) (1947 S.C. 79), and of most, if not all, of the States of the United States of America. To this paramount consideration all others yield. The order of a foreign court of competent jurisdiction is no exception. Such an order has not the force of a foreign judgment. Comity demands, not its enforcement, but its grave consideration. This distinction, which has long been recognised in the courts of England and Scotland: see Johnstone v. Beattie ((1843) 10 C1. & Fin. 42) and Stuart v. Bute (Marquis), Stuart v. Moore ((1861) 9 H.L.Cas. 440); and in the courts of Ontario: see e.g. Re Davis (an Infant) ((1894) O.L.R. 579), Re Gay ([1926] 3 D.L.R. 40); rests on the peculiar character of the jurisdiction and on the fact that an order providing for the custody of an infant cannot in its nature be final.”
In a later case, J. v. C. [1969] 2 W.L.R. 540, H.L. Lord Upjohn expressed similar views as follows at p. 573:
“But where there has been something in the nature of kidnapping, as it is usually called, a court in this country after investigating the facts may decide that a foreign court which is already seised of the matter is the proper forum to decide all questions relating to the infant’s welfare (see for example In re H. (Infants) [1966] 1 W.L.R. 381, C.A.).”
It seems to me, therefore, that the order of the German court in this case is admissible, not for the purpose of enforcing it in this court, but only for
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the purpose of considering it in the determination of the critical issue – the welfare and happiness of the child. For after all, as Lord Denning M.R. said in Re L. (Infants) [1962] 3 All E.R. 1 at p. 4, C.A., “Whilst the welfare of the children is the first and paramount consideration, the claims of justice cannot be overlooked.” The court cannot put on blinkers, when it is considering matters affecting the welfare of an infant— it must look at all the facts from every angle and give due weight to every relevant material. A previous custody order, made by a foreign court, deserves grave consideration, but what weight is to be given to it must depend upon the circumstances: see McKee v. McKee (supra at p. 948). It is the order of the German court that gave the defendant the chance to see the child and to kidnap him, and it lies ill in the defendant’s mouth to say that this court is precluded from looking at that order. In my view, notwithstanding the striking out of the second issue on the summons for directions, this court can still look at the order of the German court as forming part of the evidence when considering, at least, whether there are circumstances in which the parental rights of the parties should be superseded.
During his very able argument, Mr. Kom referred me to Dicey and Morris, The Conflict of Laws (8th ed.), r. 52 at p. 397, where the law on comity is stated thus:
“A custody order made by a foreign court does not prevent the court from making such custody orders in England in respect of the infant as, having regard to his welfare, it thinks fit.”
The comments on this passage by Lord Guest in J. v. C. [1969] 2 W.L.R. 540, H.L. deserve very careful study. He said at p. 555:
“The basis of the doctrine of comity is that there has been an order by a foreign court and that the English court will be constrained on the ground of comity to do nothing to conflict with that court’s order. But there is no case reported where `comity’ has operated in the case of a foreign national where there has been no order of a foreign court. Even then, a custody order by a foreign court will not prevent an English court from making a custody order having regard to the welfare of the infant (see In re B.’s Settlement [1940] Ch. 54). National status is merely one of the factors which the judge in exercising his discretion will take into consideration.”
Before I leave this point I will refer to the pleadings. By paragraph (4) of her statement of claim the plaintiff averred that the court in Germany awarded her the custody of Thomas Kwamla Braun, and by his statement of defence the defendant alleged that he would put the plaintiff to “strict proof of the averments contained in the said paragraph (s).” The plaintiff could only prove this fact strictly by tendering the German order in evidence, and I ruled that it was admissible, not as establishing her right to custody, but as showing that she had had a previous order in her favour.
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And though I am not bound by the German order, comity demands that I ought to have regard to it in making my independent order in this case, having regard to the welfare of the child.
In his statement of defence the defendant says that the plaintiff is not entitled to the reliefs she claims, and he counterclaims as follows:
“(1) The plaintiff and the defendant had a child by name Thomas Kwamla Mallet on 7 September 1970.
(2) The defendant will contend that since he is the father of the child, the child is by laws of Ghana a Ghanaian citizen.
(3) The defendant avers that it would be in the interest of this child to be brought up and trained in Ghana where he has a better future than in Germany.
(4) Wherefore the defendant in addition to the averments contained in the statement of defence claims custody of the said child, Thomas Kwamla Mallet.”
The defendant did not appear before me to give evidence, because he he lives in the Federal Republic of Germany, and though in two letters which he wrote to his relatives in Ghana he emphasized that he would be back home this year 1975 “with the help of God,” he did not indicate what exact time in the year he should be expected. And one sentence in his second letter reads, “I want to be sure, however, that before I get home, there is a job waiting for me.” It seems to me that the defendant in these letters was merely expressing a hope of coming home to roost, after a sojourn of nearly twenty years in a foreign land. But has the defendant any chance of realising this hope? At the moment his passport has been impounded by the law enforcing agencies in the Federal Republic of Germany, and he is to face a trial on a criminal charge of kidnapping a child, and if convicted, he will possibly be in jail for five years. On the evidence I am satisfied that the date for the return of the defendant to Ghana is very uncertain and reunion with his son is not possible within the foreseeable future.
As a father, the defendant has a right to the custody of the child, but in making an order for custody the court is bound to treat the welfare of the child as being of primary and paramount consideration. The welfare of the child requires that the father must be of good conduct and must have a happy home. Now, there is evidence that the defendant is now married to another German woman, and that there is an issue by that marriage. There is the further evidence that his wife commenced divorce proceedings against him, though it now appears that he has persuaded his wife to withdraw those proceedings. My impression is that the defendant has not got a home where the happiness and mental stability of young Thomas can be fully assured.
Mr. Kom has urged on me that this case raises a question of choice of law, and that it should be decided solely by reference to Ghanaian law irrespective of any other decision. As to what principles to apply counsel
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referred me to the local decisions in Opoku-Owusu v. Opoku-Owusu [1973] 2 G.L.R. 349, Beckley v. Beckley [1974] 1 G.L.R. 393 and Happee v. Happee [1974] 2 G.L.R. 186. In all these cases the parties were lawfully married, and were resident and domiciled in Ghana, but in each case the court stated the general principle that in an application for the custody of children the paramount concern of the court is the welfare of the child. Statutory force has been given to this principle in section 16 (2) of the Courts Act, 1971 (Act 372), to which I have been referred.
I am unable to accept Mr. Kom’s argument that this case is to be decided by reference only to Ghanaian law. In this case the plaintiff is a national of the Federal Republic of Germany, and the defendant is a Ghanaian, though it has been argued by Mr. Ribeiro, counsel for the plaintiff, that he is a Ghanaian now domiciled in the Federal Republic of Germany. If one accepts the defendant’s claim that he is still a Ghanaian, then it is obvious that the parties to this suit are not subject to the same personal law, and in determining what law is applicable to the issue arising in this case, guidance ought to be sought in section 49 (1) of the Courts Act, 1971. Section 49 (1) reads:
“Subject to the provisions of this Act and any other enactment, the Court when determining the law applicable to an issue arising out of any transaction or situation, shall be guided by the following rules in which references to the personal law of a person are references to the system of customary law to which he is subject or to the common law where he is not subject to any system of customary law.”
Rule 5 reads:
“Subject to the foregoing Rules, the law applicable to any issue arising between two or more persons shall, where they are subject to the same personal law, be that law; and where they are not subject to the same personal law, the Court shall apply the relevant rules of their different systems of personal law to achieve a result conformable to natural justice, equity and good conscience.”
In my judgment, whatever the domicile of the parties, and I do not wish to express any concluded opinion on whether the defendant has acquired a German domicile, a result that is conformable to natural justice, equity, and good conscience in this case is one that assures the paramount welfare of the child. The important question which now arises is: how does the court determine what is for the benefit of the child?
In In re McGrath (Infants) [1893] 1 Ch. 143, C.A. Lindley L.J. said at p. 148:
“The duty of the Court is, in our judgment, to leave the child alone, unless the Court is satisfied that it is for the welfare of the child that some other course should be taken. The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken 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.”
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(The emphasis is mine.) In R. v. Gyngall [1893] 2 Q.B. 232, C.A. the issue as to the welfare of the child again arose, and there Lord Esher, after a reference to the judgment of Lindley L.J. in In re McGrath (Infants) (supra), proceeded to state at p. 243 that:
“The Court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion, and the happiness of the child. Prima facie it would not be for the welfare of a child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say, from its mother’s lap in one form of religion, it would not, I should say, be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the child ought to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these. As Lindley, L.J., well pointed out in the case of In re McGrath, it is the welfare of the child in the largest sense of the term that is to be considered. In the present case I proceed on the footing that the mother has not been guilty of any misconduct that would, as between her and other people, derogate from her natural right. The Court has to consider what is for the welfare of the child and for her happiness, what her prospects are if not interfered with, the fact that in a short time she will be able to choose for herself, and what her position will be if taken by the mother to live with her.”
(The emphasis is mine.) In In re Thain [1926] Ch. 676, the Court of Appeal affirmed the decision of Eve J. who is reported as saying (at p. 684) that:
“As I said at the commencement of my judgment, I am satisfied that the child will be as happy and well cared for in the one home as the other, and inasmuch as the rule laid down for my guidance in the exercise of this responsible jurisdiction does not state that the welfare of the infant is to be the sole consideration but the paramount consideration, it necessarily contemplates the existence of other conditions, and amongst these the wishes of an unimpeachable parent undoubtedly stand first. It is my duty therefore to order the delivery up of this child to her father.”
Finally, if I may quote from one last case, In re O. (An Infant) [1965] 1 Ch. 23, C.A. where Harman L.J. said at p. 29:
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“It is not, I think, really in dispute that in all cases the paramount consideration is the welfare of the child but that, of course, does not mean that you add up shillings and pence, or situation or prospects, or even religion. What you look at is the whole background of the child’s life, and the first consideration you have to take into account when you are looking at his welfare is: who are his parents and are they ready to do their duty?”
In this case I have not had the advantage of hearing the evidence of the defendant himself. The natural father of a child has not any right, merely by virtue of his fatherhood, to claim custody.
The defendant was in this country when the plaintiff filed her claim, but he left, for he preferred others to fight his battle for him. In the absence of the defendant the real contest in this case, therefore, is who should have the custody of Thomas; the mother or the father’s brother and sister-in-law? This situation can be resolved by considering the evidence on the merit.
It was urged that the plaintiff is a person of moderate means and, therefore, if the child is returned to Germany, the plaintiff cannot by reason of her inadequate means give him a full and perfect education. It is also said that the child can benefit better from our free educational system. I feel unable to accept these submissions. The poverty of a parent is not per se a ground for depriving him of the custody of his or her child, and the mere fact that another claimant to custody is in a position to give the child a better start in life does not automatically give him a prior claim: see Re Curtis (1859) 28 L.J.Ch. 458 at p. 463 and R. v. Gyngall (supra). It was not proved that if custody is given to the plaintiff the child will be exposed to any physical or moral harm. Besides, the character of the plaintiff has in no way been impeached.
In this case, the defendant brought the child to Ghana and has left him in the care and custody of persons who are strangers to him; neither Lieutenant-Colonel Mallet nor his wife, Beatrice, speaks German, and I do not believe that Thomas understands sufficient English so that he can make himself understood by them within this relatively short time that he has been with them. I find Mrs. Mallet an honest and reliable witness. She frankly told the court that the place for a child of four is by the mother. As a mother of a child of that age, she ought to know the harm that will be caused to a child of that age by separating it from the mother. As Lindley L.J. said in R. v. Nash; In re Carey (An Infant) (1883) 10 Q.B.D. 454 at p.
456, C.A.:
“We cannot interfere with the right of the mother in favour of persons who are mere strangers. There is indeed no legal relationship, but there is a natural one, and the affection of the mother for the child must be taken into account in considering what is for the benefit of the child. The right of the mother as against the appellants is to my mind clear.”
This right of the mother of an illegitimate child was again stated in more vivid terms by Lindley L.J. in R. v. Barnardo; Jones’s Case [1891] 1 Q. B. 194 at p. 211, C.A.:
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“But, although this is true, it is now settled, after some fluctuation of opinion, that the mother of an illegitimate child has a prima facie right to the custody of the child up to the age of fourteen in preference either to the reputed father or to any other person: Reg. v. Nash. This right is based on the relationship which exists between a mother and her child, and in the absence of all superior right on the part of the reputed father or of any one else. This right of the mother is no doubt subject to control by the High Court, and if in any case it be proved that a mother is unfit to have the custody of her own illegitimate child, the Court clearly has jurisdiction to remove the child from her control. The power of the Court of Chancery to deprive a father of the custody of his own legitimate child in a proper case is undoubted; and the power of the High Court over the mother of an illegitimate child is certainly not less extensive. The power of the Court to control the mother is, in truth, indisputable and not disputed. But the Court will not interfere with her arbitrarily, and will support her and give effect to her views and wishes unless it becomes the duty of the Court towards the child to refuse so to do. Taking this view of the mother’s rights and of the duty of the Court, I see no reason why a mother should not from time to time change her mind as to where, how, or by whom her child shall be brought up, nor why the Court should interfere with her or refuse to support her, unless circumstances be proved which satisfy the Court that its duty to the infant requires it to act contrary to her wishes.”
More recently in Re B.(An Infant) [1962] 1 All E.R. 872, C.A. where the dispute was about a child aged four, as it is in this case, Donovan L.J. emphasized the importance of giving grave consideration to the position of the mother. He said at p. 875:
“Prima facie a child of this age ought to remain with his mother and strong grounds are required to justify taking him away. I agree there is no rule of law to that effect but certainly it is the natural law and one that should, if possible, prevail.”
The mother of a young child has a natural right to its custody, and in the absence of any strong reasons to the contrary, the court will confirm that right. In determining who is to have the custody of and control over an illegitimate child the court in exercising jurisdiction with a view to the benefit of the child, will primarily consider the wishes of the mother: see Barnardo v. McHugh [1891] A.C. 388, H.L. I am aware that the defendant claims that Thomas is not illegitimate by Ghanaian law, but whatever the status of a child, I think that other things being equal it is far better to give the mother custody of young or sickly children or those who for some other reason particularly need a mother’s care. After considering all the evidence, I hold that Thomas needs the care and natural affection of his mother.
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In this case, the evidence I have heard satisfies me that both Thomas and the plaintiff need each other. The child cries and feels unhappy after a visit by the plaintiff. I have seen the plaintiff in court; she looks distressed and almost distraught, and at one stage in the proceedings she became hysterical, and I ordered that she should be led out of the court.
In all the circumstances, I have come to the conclusion that it would be contrary to natural justice, equity and good conscience to deprive the plaintiff of the custody of her son. I think that it is in the supreme interest of Thomas that he should be in the custody of the plaintiff, whose motherly care and influence will provide that stability which is essential during the development of a child. I will, accordingly, allow the plaintiff’s claim for the custody of Thomas Kwamla Braun.
I now proceed to consider the plaintiff’s claim for damages. In her statement of claim the plaintiff avers that she has suffered special damages by the act of the defendant in that she had had to leave her job and travel all the way to Ghana to seek redress. For special damages she claims the sum of ¢2,400. 00. She tendered in evidence a Lufthansa air-ticket, which shows that her return-ticket cost DM. 2,240. 00, and when converted into our currency this comes to ¢1,103.46. The plaintiff says that she was accompanied by someone from Germany to help her, since she was not fluent in English. However, the ticket for this friend was not tendered, though the fare may be the same as hers. In any case, I do not think the companionship of this friend during the journey was necessary, and probably the plaintiff was unaware of the assistance which she might get from the Embassy of Federal Republic of Germany in Ghana. The plaintiff also gave evidence of how much it had cost her so far to live in Accra. She said that up-to-date she has expended the amount of DM. 2,000 (¢986.00), and that her financial resources are almost exhausted. Ordinary living expenses are not recoverable, and these could generally be incurred any way, regardless of the wrong done; but extra or increased living expenses resulting from a wrongful act are, however, recoverable. There is no evidence that any extra living expenses have been incurred by the plaintiff. In the result I would allow the plaintiff’s claim under special damages only the sum of ¢1,103.46 (DM. 2,240.00), which is the amount she paid for her own fare from Germany to Accra.
The plaintiff also claims general damages for the harm done to her by the defendant. The question of damages is in the discretion of the judge who has heard the evidence. The judge is entitled to look into the conduct of the wrongdoer in order to consider whether “his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumacious disregard of the plaintiff’s rights”: see Mayne and McGregor on Damages (12th ed.), p. 196, para. 207. In Merest v. Harvey (1814) 5 Taunt. 442, Gibbs C.J. said at p. 443, “I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?”
[p.95] of [1975] 1 GLR 81
In Dumbell v. Roberts [1944] 1 All E.R. 326, C.A. Scott L.J. said at p. 330 that though damages in a false imprisonment case were at large, yet “in so far as they represent the disapproval of the law . . . they may be `punitive’ or ‘exemplary,’ given by way of punishment of the defendant or as a deterrent example, and then are not limited to compensation for the defendant’s loss.”
This is a case where the defendant had kidnapped a child of four years, and brought him to strange surroundings in Ghana. He did this without any regard for the mother’s feelings or her rights. Surely this is a conduct which the court must condemn. The plaintiff gave up her job in Germany and came to Ghana to take her son back, and whilst she is here the defendant has written a letter to his brother Lieutenant-Colonel Mallet and instructed him that he should on no account allow the plaintiff to see her son, until she has withdrawn a criminal charge against him. In consequence of this letter, the plaintiff has not been allowed to visit her son until now. So far as the defendant and his brother are concerned the plaintiff’s feelings in this matter do not matter. Both Lieutenant-Colonel Mallet and wife told me the pathetic condition of Thomas after a visit by the mother, but they rather thought the best solution was to stop the plaintiff from visiting the child. This cruel act of the defendant and his relatives has caused the plaintiff great distress, and I think that the amount of damages I award the plaintiff should reflect my strong disapproval of the conduct of the defendant and his relatives. I also think that the plaintiff ought to be compensated for the mental torture which she has suffered since 19 October 1974. Accordingly, I will award the plaintiff ¢2,000.00 general damages. I fix plaintiff counsel’s costs at ¢200.00. Other costs incurred by the plaintiff are to be taxed. I enter judgment for the plaintiff accordingly.
I have considered the defendant’s counterclaim, and I am satisfied that it is without merit, and I dismiss it.
Finally, I order that Thomas Kwaml Braun be delivered forthwith to the plaintiff by Lieutenant-Colonel Mallet or whoever has the present custody of him.
DECISION
Judgment for the plaintiff.
J. D.
