Wakilii

In the Matter of a Writ of Habeas Corpus for an Infant Zono Taryeba (Miscellaneous Cause 1 of 1992)

High Court · [1992] UGHC 97 · 1992 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Habeas corpus application by mother seeking custody of illegitimate infant from the father
Decision
Custody of infant Zono Edel Taryeba granted to respondent father; mother granted monthly access

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court dismissed the mother's habeas corpus application and granted custody to the father. While the mother had a prima facie right to custody of an illegitimate child at common law, the paramount consideration was the welfare of the child. The court found the child was well-cared for in the father's home, the mother had voluntarily consented to give custody to the father in writing, and no evidence of mistreatment was established. The mother was granted access once a month.

Outcome

Custody of infant Zono Edel Taryeba granted to respondent father; mother granted monthly access

Facts

The applicant mother and respondent father had a casual relationship resulting in the birth of an illegitimate child, Zono, on 27 May 1984. The mother had custody from birth until December 1990, when she was working in Paris and brought the child to Uganda to secure a school place. She wrote to the father requesting he temporarily look after the child at school in Kampala pending her return. The mother returned to Uganda in August 1991 and demanded return of the child. The father refused. The mother brought a habeas corpus application alleging the child was being mistreated by the father's wife, was dirty, half-starved, and neglected. The father was a principal accountant with means to support the child, who was attending Kitante Primary School. The mother was a qualified secretary employed by the Public Service Commission. The father relied on a letter from the mother dated 30 October 1990 in which she requested he take custody so the child could grow with her father and siblings.

Issues

  1. Whether the mother of an illegitimate child has a superior legal right to custody over the father at common law.
  2. Whether the welfare of the infant would be better served by granting custody to the mother or the father.
  3. Whether the mother's consent to give custody to the father could be revoked where the child's welfare was at stake.
  4. Whether Bakiga customary law (giving custody to the father) could be applied where the parties came from different tribes.
  5. What access rights should be granted to the non-custodial parent.

Orders

  • The respondent shall have the custody of the child.
  • The applicant is allowed access to the infant once a month, or in case of sickness, any time during the day when the child is sick at home.
  • No order as to costs.

Rules and key headnotes

Custody of Children — Welfare Principle — Paramount Consideration
When the court is deciding the custody of an infant, regard must be had to the welfare of the infant as the first and paramount consideration, whether from any other point of view the claim of the father or any right at common law possessed by the father in respect of such custody is superior to that of the mother, or the claim of the mother is superior to that of the father.
Custody of Children — Definition of Welfare
The term welfare in relation to custody of children means that every circumstance affecting the well-being and upbringing of the child must be taken into account, and the court must do what a wise parent acting for the true interests of the child ought to do.
Custody of Illegitimate Children — Common Law Right of Mother
At common law, in the absence of a court order to the contrary, custody of an illegitimate child is vested in the mother to the exclusion of the father, even though the father's paternity is not in dispute; however, this legal right is not paramount and must yield to the welfare principle.
Custody of Children — Application of Customary Law
Where the mother and father of a child come from different tribes with different customs, customary law of one tribe cannot be applied to the other parent without her consent, and common law governs in the absence of agreement on the applicable customary regime.
Custody of Children — Parental Consent and Change of Circumstances
Where a parent has voluntarily consented in writing to give custody of a child to the other parent, she may change her mind if the conditions under which she agreed to hand over the child have changed to the detriment of the welfare of the child, but mere allegations of mistreatment unsupported by evidence are insufficient.
Custody of Children — Access Rights of Non-Custodial Parent
A non-custodial parent has a right of access to her child, and in determining questions of access, the welfare of the child is the paramount consideration; the access granted must not interfere with or disrupt the well-being of the child or the custodial parent's family.
Custody of Children — Stability and Future Welfare
In custody disputes, the court considers not only the immediate welfare of the child but also her future welfare and stability; where a child has been settled in one parent's home for a substantial period, is well-cared for and attending a good school, it would be disruptive to the child's welfare to remove her without cogent evidence of harm.

Legislation cited (4)

Cases cited (6)

  • George Hyakairu v Rose Nyakairu (Divorce Appeal No. 41 of 1979)
  • Samwiri Kassa v Rose Achen [1976] HCB 297
  • Pulkeria Nakaggwa v Dominiko Kiggundu (Civil Revision No. 1 of 1978)
  • R v Gyngall (1893) 2 Q.B. 232
  • Longh v Ward [1963] ALL ER 348
  • Teopista Kayango v Richard Sekiziyivu (Civil Appeal No. 18 of 1978)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

In the Matter of a Writ of Habeas Corpus for an Infant Zono Taryeba (Miscellaneous Cause 1 of 1992) [1992] UGHC 97 (13 April 1992)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.