IN RE DANKWA [1961] GLR 352
22 June 1961 · OLLENNU J · ≈ 3 min read
[1961] SLR (HC) 33Other citation styles and permanent link
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DIVISION: IN THE HIGH COURT, ACCRA
DATE: 22ND JUNE, 1961.
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Re A and B (infants) [1897] 1 Ch. 786, C.A.
(2) B v. B. [1924] P. 176
NATURE OF PROCEEDINGS
APPLICATION by mother, by way of habeas corpus, for custody of her three and a half-year-old baby daughter in the possession of her husband.
COUNSEL Koi Larbi for the applicant.
Reindorf (with him Dove) for the respondent.
[p.353] of [1961] GLR 352
JUDGMENT OF OLLENNU J.
[His Lordship narrated the facts contained in the headnote supra, and continued:] There is no doubt that hebeas corpus proceedings can properly be instituted by a parent or guardian to regain the custody of his child or ward when wrongfully deprived of the child: see Halsbury’s Laws of England (3rd ed.) Vol. 11, page 31, para. 52, and page 33, para. 57. If in such proceedings conflicting claims are made to entitlement to custody, the court will award custody to the party who appears to be the proper person to have custody: Halsbury’s Laws of England (3rd ed.) Vol.11 pages 24 – 25, para. 41. At common law a father is the natural guardian of his infant child and has a right to its custody: see Halsbury’s Laws of England (3rd ed.) Vol. 21, pages 191-2, para. 425. That legal right of the father exists even against the mother: see Halsbury, op. cit. page 192 and the cases there cited. It is only in very special cases, for example, where the father by his own act or conduct proved himself unsuitable, or where the interest and welfare of the child so require, that the father would be deprived of custody.
As to the principle which the courts apply in these matters see Halsbury, op. cit. Vol. 21, page 194, para, 429. But it has been held that other things being equal, it is proper that a child of tender years should be with the mother: Re A and B (infants)1(1); B v. B.2(2) Now the child in this case is only three and a half years old and is a girl. Having regard to her tender age and sex, all things being equal, I would have thought it most desirable that the proper person with whom she should be is the mother. But do the interest and welfare of the child warrant that she should be sent back to the mother? If this application had been made some twelve months or so ago, I would not have had the slightest hesitation in making an order for custody in favour of the mother. If the child is now three and a half years old, it means she was only about two years old when the father took her away in December, 1959. The sudden removal from the mother to quite new environmental influences must have had some psychological effect upon her. It certainly must have taken her some time to become adapted to those new surroundings. The mother took no steps then to recover custody of her and to save her the drastic reactions she must have had. Now that the child apparently has settled down happily, will it be to her welfare and in her interest that she should again be subjected to a change of environment, of associations and so many other things? In my opinion it will be cruel to subject a child of that age to such treatment; she is happy where she is, why disturb her? In the circumstances of this case, I do not consider it proper that the respondent’s legal custody of the child should be disturbed.
The application is refused.
DECISION
Application refused.
