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CONTENTS
Acknowledgement
Foreword
Establishment Of Family Tribunal
Composition
Jurisdiction
Procedure At The Family Tribunal
Forum
Applications Made To The Family
Tribunal Include The Following
Best Interest Of The
Child/Welfare Principle
Criminal Matters That May Arise
In The Family Tribunal
The Rights Of The Child
Other Rights
Guidlines For Self Represented
Parties
Care And Supervision Orders
Maintenance
Adoption
Child Panels
Appeal
Key Points To Note
Control Of Lawyers
Role Of The Magistrate
References
ACKNOWLEDGEMENT
Many people and
partners assisted in diverse
ways to the realization of this
project for the provision of
bench books for the District
Courts and hand books for the
support staff of the courts.
The judiciary and
the judicial Service of Ghana
singles out the Royal Danish
Embassy and in particular DAN
IDA, for appreciation, for their
invaluable partnership and
support without which these
publications would not have been
completed. Their commitment to
the advancement and improvement
in justice delivery in Ghana is
highly appreciated.
Special thanks and
appreciation also go to Her
Ladyship, the Chief justice of
Ghana, the Chairman and Board of
judicial Training Institute
UTI), for their support and
encouragement for the project.
A word of
acknowledgment and appreciation
for the able assistance provided
by His Lordship, justice S. A.
Brobbey of the Supreme Court of
Ghana, who moderated the
validation workshop made up of
sixteen (16) judges and
Magistrates with the requisite
experience of the Magisterial
bench, drawn from all the
Regions of Ghana for their
significant inputs into the
manual.
We are also
indebted to Her Ladyship
Gertrude Torkornoo and Ms.
SandraThompson, (Director,
judicial Reforms and Projects)
who did the proof reading; jacob
Soung, Mabel Ahele, Fati
Abukari, Hannah Edzii and Sophia
Okine, all staff of jTI for
their various contributions to
make this a reality. The
judicial Training Institute UTI)
Ghana, deserves our highest
commendation and appreciation
for their professional role in
ably coordinating the drafting
of all the manuals for the Civil
Procedure, Criminal Procedure,
juvenile Court and Family
Tribunal bench books.
Special thanks to
the Ag. Director of judicial
Training Institute (jTI),
justice of the Court of Appeal,
justice J. B. Akamba, for the
leadership role he played in the
development of the manual and
for his tireless effort to see
this project to a successful
end.
FOREWORD
The Judicial Training Institute
(JTI) on behalf of the Judiciary
of Ghana has developed this
bench book to serve as a guide
to the panel members of the
Family Tribunal in the conduct
and performance of their duties.
This undertaking forms part of
the measures adopted by the
Judiciary towards fulfilling its
legal and constitutional
obligations for the efficient
delivery of justice.
The production of this guide is
in recognition of the essential
role played by the Family
Tribunal in justice delivery.
The Family Tribunal interfaces
with the public in the delivery
of justice concerning parentage,
custody, access and maintenance
of children among others. These
are areas in which legal
representation is often
constrained, hence the need to
equip members of the Family
Tribunal with the requisite
skills and knowledge for
effective access to justice and
efficient justice delivery.
The bench book, though
comprehensive and concise,
provides a standard practice
guideline to all Family Tribunal
panels across the country, to
ensure uniformity of service. It
is recommended that this bench
book be studied alongside other
relevant materials related to
the work of the Family Tribunal.
It is hoped that all Family
Tribunal members and support
staff will diligently study and
apply the guidelines contained
in this bench book.
Ag. Director, JTI
May 2011, Accra
ESTABLISHMENT OF FAMILY TRIBUNAL
The Family Tribunal is
established by section 33 of the
Children's Act, 1998 (Act 560)
COMPOSITION
The Family Tribunal
is constituted by a panel
consisting of a Chairman and not
less than two or more than four
other members including a social
welfare officer appointed by the
Chief Justice on the
recommendation of the Director
of Social Welfare. (See
section 34 of Act 560)
The term Chairman
of the panel is synonymous with
the magistrate, since the person
presiding over the Family
Tribunal is usually the
magistrate. The decisions of the
court are by a majority
decision. Where the magistrate
is in the minority or has a
dissenting opinion the other
panel members will write the
majority decision.
JURISDICTION
Section 50 of the
Courts Act, 1993 (Act 459) as
amended by section 5 of Act 620
confers jurisdiction on the
District Court to hear and
determine matters under the
Children's Act, 1998 (Act 560).
Under the
Children's Act, 1998 (Act 560)
the Family Tribunal has
jurisdiction in matters
concerning parentage, custody,
access and maintenance of
children and to exercise other
powers conferred by Act 560 or
under any other enactment. This
is stated in section 35 of Act
560.
Section 18 of the Domestic
Violence Act, 2007 (Act 732)
provides instances in which
reference can be made to the
Family Tribunal. Where there is
the need for special protection
for a child in a situation of
domestic violence, the Court may
refer matters of temporary
custody of the child to a Family
Tribunal.
A child is a person below the
age of eighteen years so the
Family Tribunal has jurisdiction
over a person less than 18 years
of age; see section 1 of Act
560. It is therefore important
to ascertain the age of the
child at the commencement of
proceedings in conformity with
section 122 of Act 560.
PROCEDURE AT THE FAMILY TRIBUNAL
The procedure is
informal and by enquiry and not
by adversarial means as pertains
in regular court, (Section 37 of
Act 560). The process is set in
motion where an applicant fills
the appropriate forms and
submits it to the registrar. The
respondent upon service then
files a defence either in the
form of sworn affidavit or in a
statement of defence. The Family
Tribunal has the same powers as
the District Court in the
control of proceedings and the
calling of witnesses. (see
section 58 and 610f
Courts Act 459)
FORUM
The action is
instituted in the Family
Tribunal in the District in
which the applicant or child
resides. A Family Tribunal sits
either in a different building
or room from that in which
sittings of other courts are
held, or on different days from
those on which sittings of other
courts are held. [See section
36(1) of Act 560] The Family
Tribunal sits in camera. This
means that the court's sittings
are restricted to those
permitted to be present. Those
permitted at the trial are the
child, counsel, parents, court
officials, social welfare,
police officials, and interested
persons permitted by the
tribunal to attend the trial.
[See section 36(1) (a)-(e) of
Act 560J
Additionally
section 22 of the Adoption
Rules, 2003 (CI 42) states that
proceedings are to be conducted
in chambers under the rules
governing the District Court
APPLICATIONS MADE TO THE FAMILY
TRIBUNAL INCLUDE THE FOLLOWING
a.
Care order: section 20 of Act
560
b.
Supervision order: section 21 of
Act 560.
c.
Parentage of a child: section
40-42; order for blood test
S.42.
d.
Custody: sections 43 and 46 of
Act 560. Section 45 mentions the
factors to consider in
determining the custody of or
access to a child.
e.
Access to a child: section 44
and 45 of Act 560.
f.
Maintenance of a child: section
47-48 of Act 560. Attachment of
earnings and property to enforce
maintenance orders section 510f
Act 560.
g.
Arrears of maintenance: section
51 (5) of Act 560.
b. Duration of maintenance order
section 53
h.
Continuation of maintenance
orders for a child over 18
years: sections 54 of Act 560.
i.
Variation or discharge of
maintenance order: S 55 of Act
560. Amartey v. Sraha (1976) 1
GLR 279
j.
Fosterage: sections 62 to 64 of
Act 560
k.
Adoption of a child: S.65-86 of
Act 560.
l.
Protection of the best interests
and maintenance of a child in an
approved residential home:
section 110(3)
m.
Power to order contribution
towards maintenance: section
111(1) of Act 560.
n.
Determination of age of a child:
section 122 of Act 560.
BEST INTEREST OF THE CHILDI
WELFARE PRINCIPLE
In any matter concerned with a
child the best interest of the
child should be the paramount
consideration. This is known as
the welfare principle, (section
2 of Act 560). No guidance is to
be found in the law as to how to
determine the best interest of
the child but reference may be
made to the following cases,
Antwi v. Antwi (1962) 1 GLR 321,
Re Dankwa (1961) GLR 352, Ansah
v. Ansah (1982-83) GLR 1127.
CRIMINAL MATTERS THAT MAY ARISE
IN FAMILY TRIBUNAL
The Family Tribunal is basically
a civil court but in some
situations some matters may
arise incidental to civil trials
which may amount to criminal
offences. These include:
a.
Unlawful removal of a child in
lawful custody of another:
section 59(a) of Act 560.
b.
Failure by a parent or person
legally liable to supply
necessaries of life, health,
education and reasonable
shelter: section 59(b) of Act
560.
c.
Bringing an action for
maintenance while application
for maintenance is pending in
matrimonial proceedings: Section
59(c) of Act 560.
d.
Without the approval of the
court, paying or receiving
payment for adoption or
arrangement leading to adoption:
section 83 of Act 560
THE RIGHTS OF THE CHILD
Under Section 38 of Act 560 the
child has a right to legal
representation, to give an
account and express an opinion
and also has a right to his/her
privacy during proceedings. The
child has also a right of appeal
which shall be explained to
him/her, guardians and parents.
Section 39 prohibits publication
of information that may lead to
the identification of a child. A
person who contravenes this is
liable to pay a fine not
exceeding ¢5 million (GH¢500.00)
or imprisonment for a term not
exceeding one year or to both.
OTHER RIGHTS
Other rights of the child which
may be enforced by the Family
Tribunal include:
a.
The right against discrimination
on grounds of gender, race, age,
religion, disability, health
status, custom, ethnic origin,
rural or urban background, birth
or other status, socio-economic
status or because the child is a
refugee. (Section 3 of Act 560).
b.
The right to a name and
nationality. Section 4 of Act
560.
c.
The right to grow up with
parents. Section 5 of Act 560.
d.
The right to life, dignity,
respect, leisure, liberty,
health, education and shelter
from his parents. Section 6(2)
of Act 560.
e.
The right to parental property.
Section 7 of Act 560.
f.
The right to education and
well-being. Section 8 of Act
560.
g.
The right to social activity.
Section 8 of Act 560.
h.
The right of opinion. Section 11
of Act 560.
i.
Protection from exploitative
labour. Section 12 of Act 560.
j.
Protection from torture and
degrading treatment. Section 13
of Act 560.
k.
The right to refuse betrothal
and marriage. Section 14 of Act
560.
The penalty for contravening
these provisions is payment of a
fine not exceeding ¢5 million
(GH¢500.00) or imprisonment for
a term not exceeding one year or
to both.
GUIDELINES: MATTERS IN WHICH ONE
OR MORE OF THE PARTIES IS
SELF-REPRESENTED
a.
A judge/magistrate should ensure
as far as is possible that
procedural fairness is afforded
to all parties whether
represented or appearing in
person in order to ensure a fair
trial.
b.
A judge/magistrate should inform
the litigant in person of the
manner in which the trial is to
proceed, the order of calling
witnesses and the right which he
or she has to cross examine the
witnesses.
c.
A judge/magistrate should
explain to the litigant in
person any procedures relevant
to the litigation.
d.
A judge/magistrate should
generally assist the litigant in
person by taking basic
information from witnesses
called, such as name, address
and occupation.
e.
If a change in the normal
procedure is requested by the
other parties such as the
calling of witnesses out of turn
the judge/magistrate may, if
he/she considers that there is
any serious possibility of such
a change causing any injustice
to a litigant in person, explain
to unrepresented party the
effect and perhaps the
undesirability of the
interposition of witnesses and
his or her right to object to
that course.
f.
A judge/magistrate may provide
general advice to a litigant in
person that he or she has the
right to object to inadmissible
evidence, and to inquire whether
he or she so objects. A
judge/magistrate is not obliged
to provide advice on each
occasion that particular
question or documents arise.
g If a question is asked, or
evidence is sought to be
tendered in respect of which the
litigant in person has a
possible claim of privilege, to
inform the litigant of his or
her rights.
h A judge/magistrate should
attempt to clarify the substance
of the submissions of the
litigant in person, especially
in cases where, because of
garrulous or misconceived
advocacy, the substantive issues
are either ignored, given little
attention or obfuscated- (Neil v
Nott (1994) 121 ALR 148 at 150).
I Where the interests of
justice and the circumstances of
the case requires it, a
judge/magistrate may:
Draw attention to
the law applied by the court in
determining issues before it.
Question witnesses;
Identify
applications or submissions
which ought to be put to the
court;
Suggest procedural
steps that may be taken by a
party;
Clarify the
particulars of the orders sought
by a litigant in person or the
bases for such orders.
Source: Diana
Bryant, Chief Justice - Family
Court of Australia
CARE AND SUPERVISION ORDERS
The Family Tribunal may issue a
care order to the Department of
Social Welfare on an application
by a probation officer or social
welfare officer, (section 20(1)
of Act 560). The maximum
duration of a care order is 3
years or until the child attains
18 years whichever is earliest.
The Family Tribunal may make an
interim order or vary the order
(section 20 (4) of Act 560).
The meaning of care and
protection and the situations
under which a child may be in
need of care and protection are
explained in section 18 of Act
560
Note:
a.
The care order mandatorily
transfers the parental rights
with respect to the particular
child to the Social Welfare
Department.
b.
By section 20 (3) of Act 560 the
Social Welfare Officer has the
discretion to determine where to
place the child.
c.
The tribunal must ensure that
the social welfare officer
includes in his report where the
child will be placed and to
satisfy the court in the report
that the child will be
comfortable so that the order
will not cause more harm to the
child.
The Family Tribunal
may issue a supervision order to
the Department of Social Welfare
on an application by a probation
officer or social welfare
officer; See section 21 (1) of
Act 560. A supervision order is
aimed at preventing any
significant harm being caused to
a child whilst he remains at his
family home in the custody of
his parents, guardian or
relative; See Section
21(2) of Act 560.
The maximum
duration of a supervision order
is 1 year or until the child
attains 18 years, (Section
21 (4) of Act 560).
MAINTENANCE
An application for
maintenance of a child may be
made by any of the persons or
the institution listed in
section 48 of Act 560. In making
maintenance orders, the Family
Tribunal shall consider the
factors listed in section 49 of
the Act.
In accordance with
section 50 (1) of Act 560, a
Family Tribunal may request a
probation officer or social
welfare officer to prepare a
social enquiry report on the
issue of maintenance for its
consideration. Although the
Family Tribunal must consider
the social enquiry report it is
a recommendation only and not
binding. Where the Family
Tribunal does not accept the
recommendations reasons must be
given.
Maintenance may be
awarded to the mother of a child
whether married to the father or
not; see section 51 (1) of Act
560). Such maintenance may
include medical expenses for the
duration of her pregnancy,
delivery or death of the child;
a periodic allowance for the
maintenance of the mother during
her period of pregnancy and for
a further period of nine months
after the delivery of the child
and the payment of a reasonable
sum for the continued education
of the mother if she is a child
herself. An order may also be
made for arrears of maintenance
against any person liable to pay
the maintenance, (Section
51 (5) of the Act). to
continue a maintenance order
after a child has attained 18
years if the child is engaged in
a course of continuing education
or training after that age. A
maintenance order lapses even
before a child attains the age
of 18 years if the child becomes
gainfully employed.
Note however that no action may
be brought for a maintenance
order if an application for
maintenance is pending in
matrimonial proceedings, (See
section 58 of Act 560).
ADOPTION
The Family Tribunal
in the jurisdiction where the
applicant or the child resides
has concurrent jurisdiction with
the High Court and the Circuit
Court to hear applications for
adoption orders; see section
65 of Act 560.
Issues of
restrictions on making adoption
orders, consent of parents and
guardians, conditions for
adoption order, interim order,
effect of adoption on parental
rights, devolution of property
on adoption, customary adoption,
inter-country adoption and the
procedure rules for adoption
among others are discussed in
section 67-86 of the Act.
An application for
an adoption order must include
the following; recommendation
from the Social Welfare
Department, a medical report on
the child and applicant(s), the
consent of the parents/
guardians and the best interest
of the child. [See The Adoption
Rules, 2003 (C.1. 42 contains
all the required forms needed
for an adoption order].
Note:
In
the light of the fact that an
adoption order determines the
final parentage of a child, it
is important to be mindful of
the child's interest.
CHILD PANELS
Child panels are
quasi-judicial reconciliation
bodies set up under section 27
of Act 560 by the District
Assembly for the sole purpose of
mediating in matters concerning
children's rights, parental
duties and minor criminal
matters such as petty stealing
and threatening offences.
Sections 28-32 of Act 560 spell
out the functions, composition,
meetings of Child Panel in
exercising civil and criminal
jurisdiction.
Upon receipt of complaints, the
person against whom the
complaint is made and in some
cases the child may be invited
to appear before the child
panel. Appearance before the
Child Panel is voluntary as they
have no power to compel
appearance before them or to
order arrest.
A complainant
dissatisfied with' a decision of
the panel in civil disputes may
reinstitute action in the Family
Tribunal and in criminal cases
request prosecution by the
police.
APPEAL
An appeal from the
decision of the Family Tribunal
is heard at the High Court.
KEY POINTS TO NOTE
The Children's Act 1998 (Act
560) provides strong statutory
safeguards for the interests of
children.
In whatever capacity children
come before the courts, special
measures and processes need to
be adopted to ensure that they
are treated fairly, their rights
are respected, their views heard
and their confidence in the
judicial process maintained. It
is also necessary to ensure that
the evidence of a child is not
treated more favourably than
that of the other party. While
it is important to cater for a
child's needs and comfort,
judicious efforts to that end
should never be such as to
amount to a suggestion that the
child's evidence is likely to be
more credible than that of any
other witness.
Where a child has not been
present in court but decisions
have been made about the child's
welfare, such information must
be imparted to the child without
delay in a manner appropriate to
his/her age and understanding.
CONTROL OF LAWYERS
The Panel should
ensure that lawyers do not
attempt over-rigorous cross
examination and that they use
language that is free of jargon
and appropriate to the age of
the child.
The questions should be
unambiguous and the child should
be given full opportunity to
answer. If a child does not
understand a question, the child
may be tempted to give the
answer that the child thinks the
questioner wants, rather than
the true answer. The child may
also be afraid to disagree with
a powerful adult figure.
Judicial vigilance is always
necessary.
In line with this, the need to
limit the distress experienced
by a child must not overcome the
necessity of giving a party a
proper opportunity to challenge
the evidence of the child.
ROLE OF THE MAGISTRATE
In Family Tribunal proceedings
the magistrate may be pro-active
and not re- active as in formal
proceedings which are
adversarial in nature. In their
desire to do justice the
magistrate must avoid giving the
impression of being seen as
counsel for the other side in
cases involving the
unrepresented.
It is important
that magistrates appreciate
their role when presiding over
cases involving the
unrepresented.
The magistrate should ensure
that the court interpreters are
sensitive to the needs of the
child and report what they say
verbatim. The interpreter must
avoid the temptation to make
sense of the child's statements.
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