This advice will address the legal issues arising from the facts presented by Mary Akot concerning the custody of her children, Aron Mukasa Jr. and Gloria Nassanga. The primary issues are child custody, access, and maintenance. The advice is based on the laws of Uganda, particularly the Children Act (Cap 59).
The Paramount Principle: The Welfare of the Child
The central legal principle in any matter concerning children in Uganda is the welfare principle. This is established in Article 34 of the Constitution of the Republic of Uganda, 1995, and is the guiding rule in the Children Act. Section 3 of the Act states that in all matters relating to a child, the welfare of the child shall be the paramount consideration. This means that any decision a court makes regarding Aron and Gloria will be based not on the parents’ rights, but on what is considered to be in the best interests of the children. The case of *Nakaggwa v Kiggundu* [1978] HCB 310 confirmed that this principle is the most important factor in custody cases.
When determining what is in the children’s best interests, the court is guided by the welfare checklist found in the First Schedule to the Children Act. This checklist includes:
* The ascertainable wishes and feelings of the children, considering their age and understanding.
* The child’s physical, emotional and educational needs.
* The likely effect of any change in the children’s circumstances.
* The capacity of the parents to provide for the needs of the children.
In Akot’s case, her concern about the children’s wellbeing following Kato’s job loss is highly relevant. Her stable employment and new home in Bukoto suggest she has the capacity to provide for the children’s physical and emotional needs. In contrast, Kato’s recent unemployment raises questions about his capacity to provide for them. This is a strong factor in Akot’s favour. Furthermore, at ages 12 and 9, the court may consider the wishes and feelings of Aron and Gloria, respectively.
Parental Responsibility, Custody and Access
Under Section 4 of the Children Act, both Akot and Kato have parental responsibility for their children, which includes the duty to care for and maintain them. This responsibility is not affected by their separation or the fact their marriage was customary. Kato’s action of denying Akot access to the children is a violation of her parental responsibility.
Akot can apply to the Family and Children Court for a custody order under Section 73 of the Children Act. Custody refers to the right to live with and care for the children on a day-to-day basis. Given the change in circumstances, particularly Kato’s unemployment and Akot’s improved financial and housing situation, she has a strong argument that granting her custody would be in the children’s best interests. While the children have been living with their father, which the court will consider, Akot’s ability to provide a more stable environment is a compelling reason to change the arrangement.
If the court does not grant Akot sole custody, it may consider a joint custody arrangement. Regardless of the custody order, Section 6(3) of the Act provides that a parent who is not granted custody has a right of access to the child. Therefore, Kato’s current refusal to allow Akot any access is unlawful, and she can obtain a court order to enforce her right to see her children.
The Duty of Maintenance
Both parents have a duty to maintain their children, as stated in Section 5 of the Children Act. This duty includes providing adequate food, shelter, clothing, and education. If Akot is granted custody, she can apply for a maintenance order under Section 76 of the Act, requiring Kato to make a financial contribution towards the children’s upbringing. While Kato is currently unemployed, the court can still make an order based on his past earnings and future earning potential. The court will assess the financial needs of the children and the resources of both parents when deciding on the amount.
Conclusion and Advice
Akot is advised to take the following steps:
1. Formally apply to the Family and Children Court for a sole custody order for Aron and Gloria. Her application should highlight her stable employment, her new home, and her concerns for the children’s welfare due to Kato’s unemployment.
2. In the alternative, she should ask the court for a defined access order to ensure she can see her children regularly.
3. She should also include an application for a maintenance order to compel Kato to contribute financially to the children’s care, regardless of his current employment status.
Based on the welfare principle, Akot has a strong case for being granted custody, as she currently appears better positioned to provide a stable and secure environment for the children.
References
* Barya, J-J. (2009) *Commentary on the 1995 Constitution of the Republic of Uganda*. Kampala: Fountain Publishers.
* *Nakaggwa v Kiggundu* [1978] HCB 310.
* The Constitution of the Republic of Uganda, 1995.
* The Children Act, Cap 59, Laws of Uganda.
