The Marriage Act, Cap M6, Laws of the Federation of Nigeria (LFN), 2004, and the Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria (LFN), 2004, have dealt only with custody of a child born in wedlock/marriage.
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There however seems to be some shortage of intellectual resources in the aspect of rights and custody of a child born outside wedlock. This vacuum has led to situations whereby the mother of a child born outside wedlock is most times coerced, forced and intimidated to release or give up custody of a child to the father. In most situations, the father of the child born outside wedlock abandons the child and the mother is left to cater for the child alone.
Visualize this scenario. A lady has a child with a man outside wedlock, and the man abandons the child at birth. The Lady caters for the child from birth all alone until the child is 6 years old, just for the man to show up demanding to have the child back with threats that he will forcefully take the child if the lady doesn’t co-operate. Now, the foregoing scenario is clearly one that touches on the rights and custody of the child who is born out of wedlock.
I will at this point do an appraisal of the state of the law as regards custody of a child born outside wedlock and the related rights. I must state foremost that every child is legitimate irrespective of the circumstance of birth. Apposite to the foregoing is the provision of Section 42(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) on Right to freedom from discrimination which provides that:
“No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”
The above provision presupposes that a child born outside wedlock is entitled to all rights that accrue to a child born in wedlock. Therefore, any law that so discriminates a child born outside wedlock from enjoying such rights shall to the extent of such inconsistency be null and void. See Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
A similar provision is contained in Article III of the African Charter on the Rights and Welfare of the Child which states thus: “Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.”
Pursuant to the Declaration on the Rights and Welfare of the African Child (AHG/ST.4 Rev. 1) adopted by the Assembly of Heads of State and Government of the Organization of African Unity (OAU), at its 16th Ordinary Sessions in Monrovia, Liberia, from 17th to 20th July, 1979, the said Charter was birthed.
This discourse seeks to crystallize the law as it relates to custody and the rights of a child who is born outside wedlock, in other words, outside marriage.
- CUSTODY OF A CHILD BORN OUTSIDE WEDLOCK
While the Child’s Right Act, Cap C50, LFN, 2010, defines a Child as “a person under the age of eighteen years”, Article II of the African Charter on the Rights and Welfare of the Child similarly defines a child as “every human being below the age of 18 years”. It therefore means that any child below the age of 18 years of age is the focus of the legislations.
At common law, a mother has right to the custody of a child born outside wedlock to the exclusion of the natural father of the child. For a father to be awarded custody at common law, he must sufficiently establish that the mother is unfit.
Under customary law, as it is applicable in some part of Nigeria, if a woman has a child by a man to whom she is not married, custody of the child is deemed to be exclusive to the father or the mother, and this is so even if the child has been acknowledged by the Father.
In Okoli V. Okoli (2003) 8 NWLR (PT. 823) 565 @ 580, the Court of Appeal in discussing the custody of a child born outside wedlock held that the custody of a child born out of wedlock follows that of the mother in the absence of any person claiming custody of the child of being the natural father. See also Anode v. Mmeka (2008) 10 NWLR (2008) 10 NWLR (PT. 1094) 1 @ 18, Paras. F-G.
- CHILD’S RIGHT ACT, CAP C50, LFN, 2010
Sections 68 and 69 of the Child’s Right Act, Cap C50, LFN, 2010 which relates to access to and custody of a child born outside wedlock, allows a Father or Mother of a child born outside wedlock to file an application before the Family Court established under the Act, seeking an order granting him/her custody and parental responsibility for the child, and/or right of access to the child in the absence of custody.
This jettisons resort to self-help by means of threat, coercion or force in order to have or remain in custody of the child born outside wedlock as any disobedience of such order of court granting custody in favour of the father or mother, will amount to contempt which when established can lead to imprisonment.
On the damning effect of a parent abandoning or deserting a child as against the parent who has been taking responsibility, in custody proceedings, Section 72 of the Child Rights Act provides thus:
“72. Principal on which questions relating to custody, upbringing, etc., of child is to be decided.
Where the parent of a child has:-
- abandoned or deserted the child; or
- allowed the child to be brought up by another person at the expense of that other person, for such a length of time and under such circumstance as to satisfy the Court that the parent was unmindful of his parental responsibilities,
the Court shall not make an order for the child to be delivered to the parent, unless the parent satisfies the Court that, having regard to the welfare of the child , the parent is a fit and proper person to have the custody of the child.”
Section 74 of the Act empowers the Court in a custody proceedings to consult the wishes of the child, whose interest is paramount, as to the parent of choice where the child is capable of communicating, in order to aid the Court in granting any order.
On the fundamental nature of the interest of a child, Section 1 of the Child’s Right Act, which is in pari materia with the Child’s Rights Law of Cross River State, Law No. 4, 2009, provides that “In every action concerning a child, whether undertaken by an individual, public or private body, institutions or services, court of law or administrative or legislative authority, the best interest of the child shall be the primary consideration.”
A similar provision is embedded in Article IV of the African Charter on the Rights and Welfare of the Child. It states that “In all actions concerning the child undertaken by any person or authority the best interest of the child shall be the primary consideration.” Paragraph 2 of the said Article protects the views or choices of the child in any administrative or judicial proceedings.
- RIGHTS OF A CHILD UNDER THE CHILD’S RIGHT ACT, CAP C50, LFN, 2010, THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD, AND THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
Remarkably, Section 3 (1) of the Act, which is a replica of Section 3 (1) of the Child’s Rights Law of Cross River State, Law No. 4, 2009, reiterates the application of the constitutionally guaranteed fundamental rights in providing that:
“The provisions in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, or any successive constitutional provisions relating to fundamental Human Rights shall apply as if those provisions are expressly stated in this Law”
The above lucid and unambiguous provision reinforces the fundamental rights guaranteed all citizens of Nigeria as applicable to every child. Therefore a breach of any fundamental right of a child protected under the Constitution is also a violation of the above Section of the Child’s Rights Act.
In addition to the constitutionally guaranteed rights, the following rights are protected under the Child Rights Act, the African Charter and the United Nations Convention:
- Right to survival and development (Section 4 of the Act). Also, Article XVIII of the United Nations Convention on the Rights of the Child, which was adopted in Geneva at the 44th Session of the United Nations General Assembly on the 20th day of November, 1989, and was ratified by Nigeria on the 20th day of November, 1991, states thus:
“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their concern.”
- Right to a name (Section 5 of the Act)
- Right to Leisure, recreation and cultural activities (Section 12 of the Act)
- Right to Health and health services (Section 13 of the Act). This Section places this responsibility on Government, parent, guardian, institution, service, agency, organization, or body responsible for the care of a child. Section 13(5) of the Act makes failure of a parent to fully immunize a child an offence with a term of years not exceeding one month in addition to an order compelling the parent to immunize the child.
- Right to parental care, protection and maintenance. Section 14(2) of the Child’s Right Act, Cap C50, LFN, 2010, entitles a child to maintenance. . Importantly, Article XVIII (3) of the African Charter on the Rights and Welfare of the Child states as follows:
“Article XVIII:
- No child shall be deprived of maintenance by reference to the parents’ maintenance status.”
- Right of a child to free, compulsory and universal primary education, etc. Section 15 of the Child’s Right Act, Cap C50, LFN, 2010, also places this responsibility on Government and the Parent of a child. Failure of a parent to perform this statutory responsibility amounts to an offence and is punishable on first conviction to be reprimanded and ordered to undertake community service; on second conviction to a fine of N2,000.00 or imprisonment for a term not exceeding one month or to both; and on subsequent conviction to a fine not exceeding N5,000.00 or imprisonment for a term not exceeding two months or to both.
Article XI (1) of the African Charter on the Rights and Welfare of the Child also guarantees the right of a child to education.
- Right of a child in need of special protection measure. The Act acknowledges the existence of children with disabilities, etc., and places a responsibility on government, institution and authority to provide the needed protection measures to ensure the child’s integration, dignity, and individual, cultural and moral development.
- Right of unborn child to protection against harm, etc. An impressive aspect of this piece of legislation is the protection accorded an unborn child. Section 17(1) empowers a child to bring an action for damages against a person for harm or injury caused to the child willfully, recklessly, negligently, or through neglect before, during and after his/her birth. Section 17(2) and 17(3) respectively, entitles an unborn child conceived during the life time of the Father or Mother to consideration in the distribution of their estate, where any or both dies intestate.
CONCLUSION
Every child no matter the circumstances of his birth deserves the best and enjoys the full coverage of the Law. These rights are not negotiable and can be enforced against a parent, government or any authority or institution in whose care a child is placed. The major victims of these violations are children born out of wedlock and the mothers in whose possession the children are abandoned or deserted, most times without the means to cater for them. These victims are not helpless as succor and remedy can be found in the applicable legislation.
It must be noted that similar provisions as contained in the Child’s Right Act, Cap C50, LFN, 2010, and the Child’s Rights Law of Cross River State, Law No. 4, 2009, are also contained in the Child’s Rights Law of Lagos State, with significant modifications. It behooves the States that are yet to domesticate the Child’s Rights Act to go ahead and do so while those with existing laws on the subject are admonished to educate and sensitize citizens on its existence and provisions. This way, the high level of violations and trampling of the rights of children can be brought to a minimal rate if not completely extricated.
DANIEL KIP is a Human and Employment Rights Lawyer.,Contact Details/Further Enquiry: +2348036964847. kipdann@gmail.com
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