CHILD CUSTODY AND PRACTICE IN NIGERIA

body in court by way of originating motion seeking for child assessment order or emergency protection order by virtue of provisions of Sections 36, 37 and 64 of the Child’s Right Law of Lagos State.

In any case the appropriate body instituting the action must be satisfied that there is ‘reasonable cause to suspect that the child is suffering, or is likely to suffer significant harm’

This point is particularly very important as the courts are not permitted to grant such orders in vacuum, as it may disturb the stability of the child. The court must weigh the alleged circumstances of the child vis-à-vis the need for the order to determine what amounts to best interest of the child.

It is observed that in the case of DSD v SERA IGWALAH & BOLAJI PHILIPS (supra), the applicant(DSD) instituted an action devoid of the procedure and the only ground stated in the application was that the “parents of the child are fighting each other”

It is our humble view that the court should have discountenanced such an application on the grounds that it failed to comply with the procedure under the rules and the grounds alleged were not sufficient to warrant the grant of the emergency protection order. The role of the Welfare Department The role of the “welfare Department” is sacrosanct in ensuring the best interest of a child is protected. The welfare department in bringing an application for determination of what amounts to best interest of the child must be satisfied that the child is suffering or likely to suffer harm. This role is given impetus by the provisions sections 36 and 37 of The Child’s Right Act.

The relevant provisions of sections 36 and 37 are as follows:

Section36 (1)

(a) The applicant has reasonable cause to suspect that the child is suffering or is likely to suffer significant harm;

(b) An assessment of the state of health or development of the child or the way in which the child has been treated, is required to enable the applicant determine whether or not the child is suffering or is likely to suffer significant harm;

Section 37 (1) (c) in the case of an application made by an appropriate authority, that:

• the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;

• enquiries with respect to the welfare of the child are being frustrated by access to the child being unreasonably refused to a person authorized to seek access, and

• the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.

From the above provisions of the Child’s Right Law, the Welfare Department referred to is in the law an appropriate body that can institute an action in respect to the situations mentioned above.

In the case of DSD v SERA IGWALAH & BOLAJI PHILIPS (Supra) referred to earlier the Department of Social Development (DSD) as assessors in exercise of their powers and functions brought the application for child emergency protection order before the court in a most inappropriate situation which in turn portended danger to the child involved. It should be stated here, that it was a wrongful exercise of such powers as the grounds upon which the application was premised was spurious not warranting the court’s intervention or entertainment of the application. It is to be mentioned here that, the court in itself has not been able to retract the order it made due to the haphazard manner the suit was handled. The role of an assessor Section 36 (1) (b) above refers to“assessment of the state of health or development of the child or the way in which the child has been treated,…”

This assessment is usually carried out by an assessor. The assessor is a qualified social worker in the welfare department vested with the duty of assisting the state to properly analyse the subject given to him so as to achieve the intention of the statutes. The assessor in carrying out this duty of assessment acts as an officer of the court. An assessor becomes important in a proceeding for the determination of the best interest of a child where there are two disputing parties over custody of the child.

The family court of Lagos state (civil procedure) rules provides under order 12 rule13 (2), (3) and (4) for the duties of an Assessor to wit:

(2) An Assessor will assist the Court in dealing with a matter in which the assessor has skill and experience.

(3) The assessor will take such part in the proceedings as the Court may direct and in particular the Court may direct an assessor to

(a) Prepare a report for the Court on any matter at issue in the proceedings; and

(b) Attend the whole hearing to advise the Court in any such manner.

(4) If the assessor prepares a report for the Court before the hearing has begun

(a) The Court will send a copy to each of the parties;

The duty of the assessor is very crucial in determination of the custody of the child as the assessor’s report will be duly considered by the court before arriving at its decision.

In exercising these functions the assessor must not be biased in his assessment of the parties. In the case of DSD v IGWELLAH & ANOR referred to earlier the assessor on the day of the assessment of the respondents’ premises, the assessor failed to ensure that the parties’ legal representatives were present to encourage transparency. The assessor demonstrated a thorough lack of understanding of the principles herein discussed. The child’s right law also places jurisdiction squarely at both the magistrate court and the High Court. Unfortunately, the Magistrate, who are used to summary trials and decision, have so far not been impressive. Conclusion In other to avoid emotional and psychological instability which affects adversely the proper development and growth of the child, it is preferred that the court, welfare service, assessors and all other institutions charged with the duty of protecting the interest of the child should exercise diligence in carrying out their functions. They ought to properly appreciate the process and learn to detach themselves from the process.

In view of the volatility of issues involving children where parents are concerned, the courts are enjoined to be dispassionate when deciding issues pertaining to the child. Whatever factor(s) the courts relied on in awarding custody to a particular parent, must be in the best interest of the child

Though the Lagos state government has made remarkable achievements in the passage of the Child’s Right Law (2007), and in the establishment of the family court in Lagos State; it is pertinent to note that a lot still needs to be done on the areas of administration and training of personnel charged with responsibility of handling matters pertaining to children in other to ensure that the best interest of the child is assured.