IN RE DANKWA [1961]DLHC5398

Date	1961-06-22
Suit No.
Citation No.	[1961]DLHC5398

OLLENNU J.

KOI LARBI FOR THE APPLICANT.

REINDORF (WITH HIM DOVE) FOR THE RESPONDENT

[1961]DLHC5398
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">IN RE DANKWA<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

KOI
LARBI FOR THE APPLICANT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU J.<o:p></o:p>[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.<o:p></o:p><o:p>&nbsp;</o:p>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)<o:p></o:p><o:p>&nbsp;</o:p>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?<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>DECISION<o:p></o:p>Application refused.<o:p></o:p>