Custody/Rights of a Child Born Outside Wedlock

In this article, Daniel Kip appraises the state of the law, with regard to a child born outside wedlock, even though Section 42 of the 1999 Constitution of the Federal Republic of Nigeria, clearly provides that no child shall be discriminated upon by reason of the circumstances of his/her birth. He concludes that, domesticating the Child Rights Act in every State in Nigeria, and sensitising Nigerians about its existence and provisions, will go a long way to curtail violations and trampling upon the rights of such children

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. There however, seems to be some shortage of intellectual resources, on 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.

Visualise 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 six 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.

An appraisal on the state of the law, as regards custody of a child born outside wedlock and the related rights, is apt at this point. It must be stated 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)(CFRN) 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 against 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 CFRN.

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 recognised 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 Organisation of African Unity (OAU), at its 16th Ordinary Session in Monrovia, Liberia, from 17th to 20th July, 1979, the said Charter was birthed.

This discourse seeks to crystallise 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 parts 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 Rights Act, Cap 50, LFN, 2010

Sections 68 and 69 of the Child Rights Act, Cap C50, LFN, 2010 (CRA), 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 CRA provides thus:

“72. Principal on which questions relating to custody, upbringing, etc., of a child is to be decided. Where the parent of a child has:(a)abandoned or deserted the child; or (b)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 CRA 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 CRA which is in pari materia with the Child 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 CRA , 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 CRA, which is a replica of Section 3 (1) of the Child 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 CRA.

In addition to the constitutionally guaranteed rights, the following rights are protected under the CRA, the African Charter and the United Nations Conven-

“THERE HOWEVER, SEEMS TO BE SOME SHORTAGE OF INTELLECTUAL RESOURCES, ON 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”