AN ANALYSIS ON TilE LAW RELATING TO CUSTODY OF CHILDREN IN

UGANDA

BY

ABBOJULIET

1153-01024-02233

A DISSERTATION SUBMITTED TO TilE SCHOOL OF LAW IN PARTIAL

FULFILLMENT OF THE REQUIREMENT FOR TilE AWARD OF A
BACHELOR DEGREE OF LAW AT KAMPALA INTERNATIONAL
UNIVERSITY

JUNE2019
 DECLARATION
I, ABBO JULIET hereby declare that this research entitled An Analysis on the law
relating to custody of the children in Uganda is my original work and has not been
presented in any other institution for academic qualification or usage of any kind.

Student: ABBO JULIET.

1153-01024-02233.

Signature.. £ .Date.Jhlt4
 APPROVAL
This is to certify that this dissertation has been submitted for examination with my

.·
:::~:·· 4i'~-~=:~~--- . . . .
AMINA WAHAB (supervisor).

ii
 DEDICATION
l dedicate this entire effort to my late father and mother Mr and Mrs OBBO JOHN
and my sister ARWENGI REGINA and my brother OKIROR PAUL whose love,
extreme tolerance, understanding, guidance and support has brought me this far in my
studies.

iii
 ACKNOWLEDGEMENT
Writing this dissertation has involved numerous people whose contributions are gratefully
acknowledged. First of all, I owe my deep appreciation to my sister ARWENGI
REGINA who gave me a chance to study and encouraged me to under this endeavor. She
has also provided a great deal if guidance and encouragement throughout the duration of
my graduate studies.

Secondly, I owe profound gratitude to my supervisor Mrs. AMINA W ARAB, for her
constructive comments, suggestions and encouragement that made the production of this
dissertation possible. I would also like to extend my gratitude to my learned friends
Wafula Michelle, Namuganza Claire, Abbe Doreen and Irankunda Patricia for their
support and encouragement they have offered to me during this journey.

I am also grateful to the Kampala International University main library.

I appreciate the entire LLB class 2015-2019 for being interesting guys and it was great
knowing you and sharing my experiences with you all.

iv
 ACRONYMS.
AIDS Acquired Immune Deficiency Syndrome

ANNPCAN African Network for Prevention and protection against child abuse

and neglect.

FIDA(U). Federation of Uganda women lawyers.

FINCA(U). Foundation for international community Assistance Uganda.

IDP. Internally Displaced persons

UCRNN Uganda Children Rights NGO Network.

UN. United Nations

USAIDS. United Nations Program on HIV/AIDD

UNICEF. United Nations Children Education and Fund

NCC. National Council for Children.

v
 LEGISLATIONS
The constitution of the Republic of Uganda 1994.

Civil Procedure Act Cap 71,

The Children Act 1996 Cap 59

Custody oflnfants Act 1891

Divorce Act

Guardianship of minor Act

Matrimonial Proceedings courts and property Act 1970.

The Children (Amendment) Act 2016

vi
 LIST OF CASES.
Catharine Jams Kalisz v John W. Kalisz (1973)HCB 108

Christopher Kivumbi v Miriamu Nanteza Kivumbi (1976)HCB 139

Gakwaku v Gasegayire(1977)HCB 322

George Nyakairu v Rose Nyakaim (1979)HCB 261

Githunguri v Githunguri (1976_1985)1 EA 108

Hofinann v Hofinann (1970)EA 578

Karanu v Karanu(1975)EA 19

Kayongo v Sikiziyivu civil Appeal No.1878

Loughv Ward(1945)2 ALLER 338

Mary Ruhara v Christopher Ruhura (1977)HCB 86

Marian Hassan v Mohammed (1977)HCB 43

Pulkeria Nakaggwa v Domenico Kiggundu(1978)HCB 310.

Re O'Hara(1900)21R232

Re L(1962)3 ALLER

Rev Green hill (1876)4 AD&E 1624

Rev Howes (1860)3 E&E 332

Re Agar- Ellis and R v Gyngall(1962)3 ALLER

Re Andrews (1873)8 QB153

Re Carrol (1931)1KB317

Teopista Kayongo v Richard Sekiziyivu (1978)HCB 240

vii
 LIST OF CONVENTIONS
UN Charter on the Rights of the child (1997)

African Charter on the Rights and Welfare of children.

ix
 TABLE OF CONTENTS
DECLARATI 0 N ---------------. ----.... -------------------------------------------------------------------.-------- --------- -- ---- i

APPROVAL ------------------------------------------------------------------------------------------------------------------------.ii

DEDICATION -------------------. ------. ---------------------------... ---------------------------... -----------------.. -.. --...... iii

ACKNOWLEDGEMENT --------------------------------------------------------------------------------------------------.iv

ACR0 NYMS. -------------------------_-------------------.. ----. -------__ ---------. -------------------. -----------.. ---............ v

LEGISLATIONS -----------------------------------------------------------------------------------------------------------------vi

LIST OF CASES-----------------------------------------------------------------------------------------------------------------vii

LIST OF CONVENTIONS ............ -------------------------------------------------------------------------------------.ix

ABSTRACT -----------------------------------------------------------------------------------------------------------------------Xiii

CHAPTER ONE. ------------------------------------------------------------------------------------------------------------------1

AN ANALYSIS ON THE LAW RELATING TO CUSTODY OF CHILDREN IN UGANDA. I

1.1 Introduction.----------------·---------------------·-------------------· .. ·--------------------------------------------------·--· I

I .2 BACKGR0 UNO- ..... ---------------------------------.-. ----. -----------------------------. ------.. ----------------.. -.... 2

1.3 STATEMENT OF THE PROBLEM.--------------------------------------------------------------·----·-·----··· 5

1.4 OBJECTIVES OF THE STUDY.-------------------------------------------------------------------------·----· .... 6

1.5 RESEARCH QUESTIONS. ·--------------------------------------------------------------·------------------·---···-- 7

1.6 SCOPE OF THE STUDY.--------------------------------------------------------------------------------------........ 7

1.7 SIGNIFICANCE OF THE RESEARCH.-·------------------------------------------------------------··----··· 7

1.8 RESEARCH METHODOLOGY __________________________________________________________________________ .......... 8

1.9 Literature review.---------------------------------------------------------------------------------------------------- .... ---. 8

Introduction,-------------------------------------------------------------------------------------------------------------·-------· .... 8

1.10 CHAPTERIZATION. ·-----------------------------------------------------------------------------------------·------14

CHAPTER TWO. -------------------------------------------------------------------------------------------------------·----·-·15

THE CONCEPT OF CUSTODY OF CHILDREN. -----------------------------------------------------·----·15

X
2.1INTRODUCTION......................................................................................................... 15

2.2 FORMS OF CHILD CUSTODY.................................................................................. IS

2.3The welfare principle..................................................................................................... 16

2.4FACTOERS CONSIDERED BY COURT BE GRANTING CUSTODY .................... 18

2.4.1Child's wishes ............................................................................................................. l8

2.4.2Character of the parent................................................................................................ l9

2.4.3Religious consideration............................................................................................... l9

2.4.4Financial Ability......................................................................................................... 20

2.4.5Judicial separation....................................................................................................... 21

2.4.6Divorce........................................................................................................................ 21

2.4. 7Access by parents ........................................................................................................ 22

2.5Factors that may lead to change in custody................................................................... 22

2.6Custodial modalities ....................................................................................................... 24

2. 7Advantages of custody to children and parents ............................................................. 25

2.8Disadvantages of custody .............................................................................................. 25

2.9Loopholes in the law governing custody of children..................................................... 26

CHAPTER THREE ............................................................................................................ 28

OVERVIEW OF THE GENERAL LEGAL FRAMEWORK ON THE LAW OF

CUSTODY .......................................................................................................................... 28

3.I Introduction .................................................................................................................... 28

3.2Regional and international legal framework of custody ................................................ 28

Regional legal framework of custody................................................................................. 28

3.2.1 The constitution ofUganda ......................................................................................... 28

3.2.2The Children Act cap 59 ............................................................................................. 29

3.3 INSTITUTIONAL FRAME WORK; ........................................................................... 33

xi
3.3.1 INTRODUCTION ..................................................................................................... 33

3.3.2THE ROLES OF INSTITUTIONS ............................................................................. 33

3.3.3HOW INSTITUTIONS HAVE IMPROVED ON THE CHILDREN WELFARE .... 34

3.3.4ELIMINATING SEXUAL ABUSE AND VIOLENCE ............................................. 34

CHAPTER FOUR ............................................................................................................... 37

INSTITUTIONAL CHALLENGES AND RESEARCH FINDINGS ............................... 37

4.1 Introduction .................................................................................................................... 37

4.2Challenges experienced by these institutions ................................................................ 37

4.3RESEARCH FINDINGS ............................................................................................... 40

CHAPTER FIVE ................................................................................................................ 4 5

RECOMMENDATIONS AND CONCLUSIONS ............................................................. 45

Introduction ......................................................................................................................... 45

5.1RECOMMENDATIONS ............................................................................................... 45

5 .2Conclusions.................................................................................................................... 47

BIBLIOGRAPHY............................................................................................................... 49

xii
 ABSTRACT
This Study was about the Jaw custody of children in Uganda. This study sought to
examine the effectiveness of the existing Jaws and institutional framework relating to
custody of children and challenges faced by tbese institutions in Uganda. Through
doctrinal research methodology, tbe study specifically examines tbe existing laws of
custody of children and applicability in civil sector in Uganda. The research focuses on the
circumstances which give rise to custody of children and legalities taken into account
while resolving the custody, care and control of children as supported by the Jaw. It also
discusses the problems experienced in dealing with law of custody of children. It provides
possible interventions to streamline cases of custody of children. The proposed research
took the form of a new research but on an existing research subject. In order to satisfY the
objectives of the dissertation a qualitative research was held. The research findings of the
study reveal a number of factors capable of stalling the proper regulation of custody of
children in Uganda, in the view of this findings, the study recommends proper
implications of existing laws, improvements in monitoring and assessments of custody in
Uganda among other things.

xiii
 CHAPTER ONE.

AN ANALYSIS ON THE LAW RELATING TO CUSTODY OF CHILDREN IN

UGANDA.

1.1 Introduction.
Custody of a child is the care, control, responsibility and maintenance of a child which a
court may award to one of the parents during separation, divorce or death of the parents to
the child. In the procedure of the declaration of parentage, the court may grant custody to
an applicant on such conditions as it may deem fit. 1

Custody refers to a bundle of powers2 exercisable over the child, custody also includes the
same total if rights which a parent could exercise over his children. These rights continue
until a child attains the age of 18. However custody is often used in a narrow sense
sometimes as simply referring to the power of physical control over the child's movements
and sometimes to refer to residual rights not more specifically dealt with. An example may
make this last usage clear.

Divorce court sometimes makes the so called "split orders" giving custody to parents A,
and care and control to parent B. This means that parent B has the right to have the child
under his physical control, but parent A retains some parental rights.

It is therefore often insufficient simply to ask who has the custody of the child.

It will usually be necessary to specifY which rights are in question, in every decision to be
made in relation to children, the welfare principle and the children's rights ate the guiding
principles. This is the principle that the child welfare is the first and Paramount
consideration as the proper test to be applied in exercising the ward ship jurisdiction and it
is now to be applied in all court dealing with the specified issues.

1
Children Act cap 59
2
S.M Cretney (Principles of family law) Forth edition at 297

1
 It should be noted that whenever the state, a court, local authority or any person
determines any question with respect;

a. The upbringing of a child or ,

b. The administration of the child's property or the application of income a arising
from it.
c. The child's welfare shall be of the Paramount consideration. 3

The welfare of the child is not to be measured by money alone nor by physical comforts
but the word welfare must be taken in its widest sense before the order of custody is made
by court of law .The word welfare includes material welfare, both in the sense of adequacy
of resources to provide a pleasant home and a comfortable standard ofliving and the sense
of care to ensure that good health and due personal pride of a child are maintained.

Therefore the research topic will consider the examination ofthe law relating to custody
of children in Uganda.

1.2 BACKGROUND.
Uganda was declared a British protectorate in 1894 and in 1902, the order in council as the
foreign jurisdiction Act which incorporated the British laws to be adopted in foreign
jurisdiction.4

The first independence constitution of 1962 did little to address the issue concerning
custody children, but the 1995 constitution of the republic of Uganda under article 31 tried
to bring out the right of parents over their children. The custody order or right was also
incorporated in the 1996 cap 59 of which provided for custody of children.

However, before the enactment of the law relating to custody, there was the child care
system in Uganda. In most cultures and societies, the father best interest was assumed to
be the child's best interest too, a child was seen to belong to the fathers part, property and
whatever he said was final in regarded to the child. Children also went to the father's

3
Section 3 and the first schedule (the children Act cap) as Amended 2016
44
G .M Kenyehamba Constitutional and Political History of Uganda Centaury publishing House ltd Kampala
page 2002 page 33

2
families automatically regardless of whether he can take care of the child; in fact some
families withdrew children from their mothers and took them to live with paternal aunts or
uncle claiming that the children had to grow up with their people.

As several developments in the country took place, these traditional means went on dying
out and both parents began applying for custody orders in courts of law and after the
enactment of the children Act cap59 in 1997, which was to make provisions for custody of
children so as to protect and look after the children who are under custody. However, this
still exists in some societies where custody information is not available.

In England, the right to care for and control the child is thus transferred to the custodian,
but the child's legal status as the issue of his or her natural parents remain intact so that for
instance a child nationality and his right to succeed in his natural parents Intestacy.

In Uganda the intestacy is not affected by the custody of the child, the child has a right to
succeed in his natural parent's intestacy.

Before the children Act 1989 of England, courts were directed to treat the child's welfare
as their first and Paramount consideration, judicial decisions in particular that of the
House of Lords in J V J, had effectively rendered the words first and redundant. The 1989
Act's Paramount formulation therefore simply reflects that previously well established
position and as such was not intended to alter the law or practice indeed in Re 0 and an
oar (minors ) (care preliminary Hearing);Re B, Lord Nichols said that the approach
adopted by Lord Mac Dermott in J v c.5 when applying the welfare principle under what
was then the Guardianship of infants Act 1925 was equally applicable to that under the
1989 Act, in this regard Lord McDermott had classically stated that the principle
connotes. 6

" a process whereby when all the relevant facts , relationship claims and
wishes of parents, risks, choices and other circumstances are taken into
account and weighed, the course to be followed will be that when is most

5
(1970) AC 668,
6
(2003)UKHll8(2004)1 AC 523 at 24

3
 in the interests of the child's welfare as that term has now to be
understood.7

What J v c was commonly taken to have established that the child's welfare was in effect
the courts sole concern and that other factors were relevant only to the extent that they
would assist court in ascertaining the best solution for children? 8

Custody in Uganda is resolved when court makes on order for custody of any child upon
the application of any person interested in the proceedings of divorcing, nullity of
marriages and judicial separation of parents to place the child tmder the care and control of
one parent/guardian and not the other, this is referred to section 84.9

It is the aim of this paper to critically analyze the inadequacies in the law relating to
custody of children in Uganda. Custody of a child is governed by the children Act cap
59.the family and children court ruled in 1998 and other relations international statutory
instruments, like the Africa charter on the rights and welfare of the child.

DEFINITION OF TERMS

According to section 2 of the Children Act cap 59 defines a child as person below the
age of eighteen years. In line with the above section, Article 34(5) of the constitntion
defines children to be persons under the age of sixteen years.

"A Custodian as defined in section 2(f) of the children Act cap 59 means a person in
whose care a child is physically placed.

"Local Authority" as defined in section 1(1) of the children Act 59 means a local
government counciL

"Parent" means the biological mother or father or advocate mother or father of the child.

"Welfare" as defined in section 1(1) of the children Act cap 59 means the welfare of the
child is not to be measured by money alone or by physical comfort only. The word welfare

7
(1970) AC 668 at 710
8
Bromleys's Family Law lOth Editions
' Children Act cap 59 (Uganda)

4
must be taken in its widest sense. The moral and religious welfare must be considered as
well as its physical well-being.

"Paramount" means a process whereby when all the relevant facts, relationships, clans and
wishes of parents risks, choices and other circumstances are taken into account and
weighed, the course to be followed will be that which is most in the interests of the child
welfare as that term is now to be understood that is the first consideration because of its
impmtance and the paramount consideration because it rules upon or determines the
course to be followed.

1.3 STATEMENT OF THE PROBLEM.

My topic relies on custody of children and the law relating to custody in Uganda. In
Uganda, on many occasions, the better situation concerning child custody that the state
should consider the welfare of the child before granting any parent applying for custody,
the welfare includes the upbringing of the child, the administration of the Childs property
or application of any income arising from it. The child's age, sex, background and
physical, emotional and educated needs should be considered in order to give the child
parental care, love and responsibility leading to a better future of that child, court should
also consider the gravity of change that awarding custody to a particular parent would
entail and likely affect the change on the child, the applicant should have home, where the
child will stay and also financially capable to support the through his or her life.

Court before granting custody of a child to children Act cap 59an applicant, it will
consider the best interest of the child .in Uganda before the enactment of the, fathers could
automatically take custody of the child is cases of divorce, judicial separation and nullity
of marriage. However in the current situation is that court considers the best parent who
will able to care for the best interest of the child. Where a person is not legally granted
custody of the child may not be able to fulfill the courts requirement of the welfare of the
child. This affects the child when the parent is not in position of giving the required Care,
love and responsibility to the child or in cases if step mothers and fathers the child suffers
as consequences of mal treatment and child forcing the child to run away from home
ending up displaced and living on streets. Thus cause having not given a solution to

5
children who lack child protection, parental care and love. In a situation where parents
have serious disagreements, children suffer both physically and emotionally thus being
traumatized about the custody procedure is difficult to find our societies today, for
example in deep local villages and this is a barrier to the right of custody to parent and
their children.

In this contest, it is clear that domestic custody has not been thorough explored as a
potential permanent solution for some of the children living without parental care.

The first resort of rescuing children from abandonment, orphan hood, family poverty,
family disintegrations, disability or displacement because of divorcing parents, marriage
nullity among others is for courts to consider the wellbeing of the child and the suitable
custodian of the child.

The expensive and prolonged judicial procedures of the order of custody should be looked
into by courts and information about custody should be reached down to the locals.

This thesis aims at exploring the current enviromnent surrounding domestic custody in
Uganda. There is need to revise some of the decisions made by family and children comts
in relation to custody, and custodial laws should be presented before the legislature for
more amendments in order to improve on the status and social welfare of the child.

1.4 OBJECTIVES OF THE STUDY.

The main concern of the study to analyzed the law relating to the custody of children in
Uganda.

• SPECIFIC OBJECTVES.
I) To analyze the legal and institutional framework of custody of children in Uganda.
2) To examine what amounts to child custody.
3) To examine the challenges faced by the institutions and the legal findings of the
research.

6
 4) To suggest the possible or appropriate solutions and recommendations for future
and present actions.

1.5 RESEARCH QUESTIONS.

a) Is there any legal framework on the law relating to custody of children in Uganda?
b) What amounts to custody of children in Uganda?
c) What are the challenges faced by instruction by achieving the welfare of children
in Uganda?
d) Are there any possible solutions and recommendations on the custody of children
in Uganda?

1.6 SCOPE OF THE STUDY.

The study will be carried out in Uganda, and it is centered on the law relating to custody
of children whether at common law or equity. Court's consideration of the welfare of the
child and the possible recommendations to encounter such challenges under custody
orders of a child.

The study will be carried out within Kampala district in Uganda. It lies within the central
region of the country in Buganda and the other neighboring districts.

The study will focus on the period of three months from March to June.

1.7 SIGNIFICANCE OF THE RESEARCH.

The findings of this study will contribute to the benefit of considering that custody play s
an important role of protecting children and their best interests in our society today.

The study will also contribute to a considerable awareness on the loopholes in the law of
custody of children to concerned actors aiming at helping children and custodial parents.

The study will also sensitize the public about custodial rights and arrangements for the
betterment of the child's interests and the welfare principles.

7
1.8 RESEARCH METHODOLOGY.
This research will be based on the doctrinaVqualitative method on the already existing
literature among which include, te:\.i books ,legal journals ,magazines, news papers, paper
presentation's, law reports for information review, conventions and agreements, statues,
case law as well other materials obtained from different websites.

Basically a critical analysis will be made on the provisions of the children Act 10 not only
in relation to the existing common law rules regarding the acquisition of custody as a
parental responsibility and right, but also in relation to the guidelines and standards set by
the constitution of the republic of Uganda. 11 The use of international law will be to the
extent that it is functional whether it be to contextualize a particular aspect such as the
different treatment of mothers and fathers as fur as the automatic acquisition if custody. 12

1.9 Literature review.

Introduction,
Literature review covered what previous authors and scholars have written about the
subject in order to have a handle on the study. This is a secondary examination of the
available information that has been previously published and a guided analysis of some of
the major issues of the existing literature will be made on the law of child custody.

The legal attitudes towards the parent-child relationships has undergone profound change,
originally emphasis was placed on father's rights then for a short period oftime, attention
was paid on improving mother's position ,finally the position was reached where the
primary focus on the child, despite these important developments before the children Act
came into force. Statues still referred to the parental rights and duties or parental powers
and parental authorities later a commission was established hence the introductions of
parental responsibility and the government accepted the commission's recommendations
and the establishment of parental responsibility coming into force hence the children Act.

10
Children Act cap 59
11
1995 Constitution of the Republic of Uganda
12
United Nations Convention on the Rights and Welfare of the Child

8
 a) The custody of children.

The word custody is capable of being interpreted in many different ways. In its broadest
sense, it means the sum total of the rights which a parent could exercise over his
child 13 .according to S.M.Cretney 14, these rights continue until a child attains the age of 18
Todd v Davismz 15(or at least in a case of a girl marries at an earlier age. However custody
is often used in a narrow sense is sometimes as simply referring to the residual rights not
more specifically dealt with. An example may last usage clearer. Divorce courts
sometimes make so-called "split orders" giving custody to parent A and care and control
to parent B. this means that parent B has the right to have the child under his physical
control but parent A retains some parental rights.

S.M Cretney states three key concepts and these are (a)the parental rights and duties
which means all the rights and duties which by law the mother and father have in relation
to a legitimate child and is property.. .it is also provided 16 that references to parental right
and duty ... shall include a right of access to the child, the right to physical possession,
power to control education ,discipline, choice of religion, right to consent to medical
treatment among others.(b) legal custody this is more Important in custody proceedings
under the Guardianship of minors Act 1971 in custodianship proceedings under the
children Act and magistrate's courts Act 1978, the court has power to make orders
transferring legal custody in orders made by the divorce court requires separate treatment.
Legal custody is the place and manner in which a child spends his time and this right will
often be subject to an order to allow another person access, including staying access of the
child.

17
(c) actual custody, tile children Act 1975 provides that actual custody means actual
possession of the child's person, it is provided that this possession may be shared with
one or more persons ,but the Act does not further defines the concept. Has a school
master, for instance has actual custody of a boarding pupil. the question may be important

13
Principles of family law by S.M. Cretney 1984
14
Principles of family law
15
(1972)AC 392
16
Children Act 1975 s.85.
17
5.89

9
because the children Act 1973 places on a person who has actual (but not legal) custody of
the child the like duties in relation to the child as a custodian would have by virtue of his
legal custody and these duties may include the duty to maintain the child.

P.M Bromley &NV Lowe believe that because of the way in which the law has evolved,
custody has developed two meanings and only a person with de facto care and control of
the child could exercise the other rights which were attached de facto care to custody. they
state that a parent's right to custody can be terminated in at least four ways, and the first
one is that custody automatically ceases when the child attains the majority age, secondly
that there are a number of dicta that the right to custody of a minor daughter ceases if she
matTies which is apparently equally true of a son, thirdly the right is suspended whilst the
child is serving in the armed forces, and lastly a parent may lose custody as a result of a
court order.

According to justice Irene Mulyagouja kakooza18 states that the court in custody
proceeding should consider s. 73 of the children Act which provides that the conrt may in
the same proceeding for the declaration of parent age, grant custody of the child to an
19
applicant on such conditions as if may deem fit, in reaching its decisions in subsection I
the court shall primarily consider the welfare of the child.20

A person who unlawfully removes a child from the lawful custody of another person,
institution or organization commits an offence and shall be dealt with in accordance with
the Act.21

In suits for dissolution of marriage, or for the nullity of marriage or for judicial separation,
the court may at any stage of the proceedings after a decree absolute has been pronounced,
make such orders as it thinks fit, and may from time vary or discharge the orders with
respect to the custody, maintenance and education of the minor children of the marriage,
or for placing them under the protection of the court.

18
Best principles in family law (High court of Uganda)
19
Section 73(1) children act cap 59.
20
Section 73(3)supra
21
Section 73(4 )supra.

10
There appears to be no independent provisions for custody in the children Act or any other
Jaw in Uganda and this leads to tricks by lawyers challenging applications, but we ought
to have clear provisions for such orders to enable the fumily courts exercise their
jurisdiction efficiently and effectively. fn some jurisdiction the law and procedure for
custody is well developed, we shall consider the basic principles in Uganda that may lead
to the development of best practice.

Article 34 of the constitution22of Uganda provides that subject to laws enacted in their
best interests, children shall have the right to know and be cared for by their parents or
those entitled by their parents or those entitled by the law to bring them up.

Article 31 of the constitution of Uganda also provides that it is the right and duty of
parents to take care and up bring their children and may not be separated from their
families or persons entitled to bring them up against the will of their families or of those
persons, except in accordance with the law.

Justice Irene M.K states that the child has rights such as the right to a continuing
relationship with both parents, the right to express and receive love and affection from
both parents without fear of disapproval by other parent, the right to continuing care and
guidance from both parents, the right to regular and consistent contact with both parents.
parents also have the obligations not to talk badly about the other parent, not to argue in
front of the child or on the telephone when the parent can be overheard, neither parents
shall talk to the child about the divorce ,the paternity action of any conflicts or issues
between the parents, and they shall not talk about the amount of payment of child support,
children shall not be prevented from freely taking items such as clothes and toys back and
forth between two households and also ask the child where he or she wants to live.

Therefore the court should educate parents in conflicts about the possibility of these
practices and discourage parents in conflicts from practicing them.

She also states two forms of custody and residence which includes.

22
1995

11
I. Sole legal custody; this means that one parent determines all major issues regarding the
child's life. The court must make specific findings of fact upon which the order for sole
legal custody is based. The award of sole legal custody to one parent does not deprive the
other parent of either parenting time or access to information regarding the child unless
the court considers so orders, and states the reasons for that determinations.

2. Joint legal custody. This means both parents have equal rights and responsibilities
concerning their minor children, and acknowledge that neither party has rights superior or
inferior to the other's, joint legal custody does not give the non-residential parent veto
powers over such decisions but he or she does have the right to advance notice, good faith
consultations and full input.

Court should also consider the residency and the ability of each parent for the needs the
child including any special needs. Residency is of two fonns.

I. shared residency, a term requiring both and equal or nearly equal sharing of
parenting time and direct expenses of the child and it has many complications
because it requires a high degree of cooperation, frequent and constant
communication, co-parenting and increased expenditure for both parents. only then
can be in the best interest of the child if the above requirements are fulfilled and
before a shared residency order is made the plan presented must be child centered
and parents must be committed to sharing parenting responsibilities, there should
be no conflicts or should be minimum conflict.
2. Divided residency; each parent maintains the primary residency for one or more
of their children .courts will normally order divided residency because of
established public policy in fuvor of keeping siblings together.

According to Tamale and Oakum23 custody is the exercising of the rights which are
attached de jure to custody by a person with de facto and control rights over a child.

23
Tamale Sylvia and Jennifer okumu wengi. The legal status of women in Uganda, women laws, customs
and practices in East Africa, laying the foundation .Ed Janet W.Kabeberi Macharia, Nairobi, women and law
in East Africa 1995.

12
 Custody practices is clearest in Uganda, where the father has custody rights for any
child no longer breast-feeding and when women do retain custody they are entitled to
2000 Ugandan shillings per month per child in maintenance according to the Ugandan
civil law which fee, they are rarely able to c{)llect. This implies that when parents
divorce the law determines which parent is given custody relying on the best interest
of the child as well as the rights of both parents and their entitlement.

The American Bar Association (2009) states that under the current laws of almost all
states, mothers and fathers have an equal right to custody. Courts are not supposed to
assume that a child is automatically better off with either parent's .in a contested custody
case, both the father and mother have an equal burden of proving to the court that it is in
the best interest of the child that the child is put under his or her·custody. the welfare
principle and the children's rights is the guiding principles in making any decision based
on this Act.24

An advocate Paul Palia Kiapi,25 says that where custody of children is to be granted, the
welfare of the child is paramount consideration and the matter of custody is best
determined after hearing both parties.26 As concern custody of children of tender years
such children should normally stay with the mother unless she is not a fit and proper, the
mother should be free to visit her children as often as she pleases. 27

According to lawyers committee, it states that when parents file for divorce, the judge has
the power to award custody of parties minor children in accord with the best interest ofthe
children.

24
Children Act cap59 section 3.
25
Practice manual series.
26
Mariam v Mohammed (1977) HCB48.
27
Teopista Kayong v Richard Sekiziyivuu(1978)HCB24o.

13
The best interest of the child is the universal standard used in determining child custody
issues and how they are treated.28

1.10 CHAPTERIZATION.
Chapter one, covers the introduction and the background of the study, the statement of the
problem, objectives if the study, the scope if the study, significance of the study,
methodology, literature review and the cauterization.

Chapter two covers what amounts, forms of custody and factors considered by court
before granting custody.

Chapter three covers the legal framework of custody.

Chapter four covers the challenges faced by institutions m achieving the welfare of
children and the research findings.

Chapter five covers the possible solutions and recommendations to curb cases of custody
of children in Uganda.

2828
"' Committee on the Rights of the child, initial Report of State parties due in 1992 Uganda page 93(june·
17-1996).

14
 CHAPTER TWO.

THE CONCEPT OF CUSTODY OF CHILDREN.

This chapter will look at the law in relation to child custody as it is in Uganda together
with the proceedings and what each of the parties should prove before an order can be
granted. It also analyses the factors that court considers before granting custody of the
child.

2.1INTRODUCTION.
Custody of the child means the total sum of the rights which a parent could exercise over
his or child. These rights continue until a child attains the age of 18 years.29 However,
custody is used in a narrower sense sometimes as simply referring to the power of physical
control over the child's movements and sometimes to refer to residual rights not more
specifically dealt with.

2.2 FORMS OF CHILD CUSTODY.

There are different forms of custody that is explained in this chapter and these include;
sole legal custody, physical custody and joint custody.

Sole legal custody; sole legal custody means that one parent determines all major issues
regarding the welfare of the child. Unless the context requires otherwise, so much of the
parental rights and duties as relate to the person of the child. 30 It is specifically provided
for however that a person is not entitled by virtue of having legal custody of the child to
effect or arrange for his emigration from one state to another state unless he is a parent or
guardian of the child. Courts have powers to make orders transferring legal custody from
one person to another. The court must make specific findings of fact upon which the order
for sole legal custody is based. The award of sole legal custody to one parent does not
deprive the other parent time or access to information regarding the child unless the court
so orders and states the reasons for that determination.

29
Todd v Davision(1973)AC 392 at page 404 per viscount Oil horn.
30
S.M.C principles of family law.

15
Physical custody; this determines where the child resides or lives on a day-to-day basis31 .

Joint custody, section 2 32 defines joint custody to mean an order granting custody of the
child to two or more persons. This form is relatively a common arrangement for divorced
or unmarried parents living quarters. According to The American Bar Association33 states
that under the current laws of almost all states, mothers and fathers have an equal right to
custody, courts are not supposed to assume that a child is automatically better off with
either parents. In the contested case, both parents have equal rights to the custody for best
interest of the children.

2.3The welfare principle.

The term welfure principle has been the cornerstone of child law for some considerable
time before new legislations; it is surprisingly difficult to find judicial articulation of its
meaning, one ofthe few statements of Lindley U who in 1893 34 said

" ... The welfare of the child is not to be measured by money alone or by physical
comfort only. The moral and religious welfare must not be considered as well as its
physical well-being, nor can the ties of affection be disregarded.

The welfare is an all-encompassing word, it includes material welfare, and both in the
sense of adequacy of resources to provide a pleasant home and a comfortable standard of
living and in the sense of adequacy of care to ensure that good health ensure personal
pride are maintained. However, while material considerations have their place, they are
seconding matters; more important are the stability and the security, the loving and
understanding care and guidance, the worm and compassionate relationships that are
essential for the full development of the child's own characters, personality and talents? 5

Courts are directed to treat the child's welfare as their first and paramount consideration in
judicial decisions. Courts also consider a number of factors that must be born in the mind

31
https/I google web ligh.com
32
The children(Amendment) Act 2016
33
(2009)
3434
Re MCGrath (infants)(1893)1ch 143 at 148.
35
Bromely's family law.

16
of the person applying for custody of the child. In some cases these are bound to weigh
more heavily in favor of one parent or claimant. The child will be the court's fundamental
consideration when determining child custody issues. In Veronica Habyarimana v Peifect
Habyarimantl6 Odoki(j) held on the issue of custody of two children that the welfare
would be paramount and required in determining who of the two parents takes custody of
37
children. In another case of Mariam Hussian v Mohammed, Butagira J held that the
welfare of the children is a paramount consideration and the matter of custody id best
determined after hearing both parties and custody should not be granted until both parents
have been heard. This standard, which has been emphasized since the late 1970s is in
contrast to the former presumption for maternal custody, which is based on the premise
that mothers provided the necessary nurturing for the children of tender years of age of the
child.

In the decided case of Catherine Jema Kalisa V Jolm. W. Kalisa. 38 Wambuzi C.J held
that, in case of custody, the welfare of the child was the paramount consideration, and the
court would not vary its orders merely to suit the convenience of the petitioner. By
entrusting the children to the custody of the mother as she had done and going away to
Nairobi' the petitioner had by her conduct shown some irresponsibility towards the
children since it was not possible for her to obtain employment in Uganda, and that
removing the children from the jurisdiction of the court would depriving the court from
the power to act in the best interest of the children.

In the another case of Githungri/9 The appellant filed an originating summon in the High
court seeking relief under the Guardianship of Infants Act for the custody of her two infant
daughters aged four years and eight months and one year and ten months respectively. The
two children were issue of the marriage between the appellant and the respondent duly
performed under the Marriage Act in 1972, at the time of the High court proceedings; the
parties were not either judicially separated or divorced. They were however estranged and
occupying separate homes. The respondent was living with another woman he purported

36
(1980)HCB 139.
37
(1977) HCB 43.
3838
(1974)108.
39
(1976·1985)EA 108. Wicks 0. law and Miller JJA.

17
to have married under customary law in 1977, he contented, inter alia that the interest and
welfare of the children would be best served by them remaining with their father and
accordingly granted custody to the respondent.

According to the Guardians/tip ofMinors Act section3, the welfare of the child is the first
and paramount consideration in determining any question of its custody and upbringing
though not the sole consideration as Meggary .J. In Re rt0 said that one cannot solve the
problem arithmetically or quantitatively by using some sort of points system. Therefore
courts should always look at the welfare of the child before granting custody of the child
to either parent in deciding what will be in the best interest of the child.

2.4FACTOERS CONSIDERED BY COURT BE GRANTING CUSTODY.

It should be noted that, the welfare of the child is the first and paramount consideration in
determining any questions concerning custody and upbringing of children. In this situation
a number of factors must be considered and some of these are bound to weigh more
heavily in favor of parents and others will weigh more in the child's will as fundamental
considerations in detennining a child custody issue.

In the case of MARIAM HUSSJAN V MOHAMMED,41 Butagira .J. held that the welfare
of the child is a paramount consideration and the matter of custody is best determined after
hearing both parties and custody should not be granted until both parties are heard. This
standard which has been emphasized since the late 1970s is in contrast to the mothers
provided the necessary nurturing for the children of tender years.

2.4.1 Child's wishes.

The court is bound to determine the best wishes of the child. However, if the child is old
enough to express their own wishes, the court will interview it not so that it can give effect
to those wishes but to be able to judge what is the best for the welfare of that child, but it
must be remembered that the child may have been coached by one parent and that

40
(1969)2 ALLER.
41
(1977)HCB 43.

18
sometimes, the child's own wishes are so contrary to its long term interests that the court
may feel justified in disregarding them altogether.

2.4.2Character ofthe parent.

The conduct of the parents must not be ignored, it is important either when all other facts
are evenly balancing. Even if there is no possibility of harm from either parents, the court
considers which parent is likely to be better and incase they divorced and proposed to
remarry, which of them is more likely to be the better parent to the child.42

It should be remembered that during the nineteenth century it was the practice of the
Divorce court not to give care and control to the mother who had been guilty of adultery
and it was not until the turn of century that the courts were prepared to ccncede that this
should not automatically deprive the mother of her rights. In the case of Willoughby v
Willoughby, it was held that mother who had committed adultery should have the custody
of her daughter aged two years, in the absence of any evidence that she was promiscuous a
bad housekeeper or a bad mother.

In Uganda this is seen in the case of George Nyakairu v Rose Nyakairu,43 immorality on
the part of the father was no sufficient justification for interfering with the father's
common law right to the custody of his children unless such immorality was very flagrant
or was coupled with other habits injurious to the children.

2.4.3Religious consideration.
It should be noted that the child's background can include his religious upbringing. In the
past this was of crucial significance, but today this ccnsideration is of much less
importance, it is inconceivable, for instance that a parent would be refused a residence
order on the ground of atheism. In the case of a very young child (and probably any child
of no fixed religious beliefs) the question of religious upbringing will have little bearing
on the outcome of the case. 44

42
P.M Bromley 7 Lowe {1992), Bromley's family law&"' Edition, Butterworth publication.
43
(2979) HCB 261.
44
Bromley & Lowe family law 10"' edition page 591.

19
Parents are not under any duty to provide their children with religious education. However
both at common law and in Equity the father had the absolute right to determine the form
of his legitimate minor children's religious education and his wishes had to be respected
after his death. There seems no doubt, that the right to select the type of education that an
illegitimate child should have and the religious belief in which it should be brought up is
vested prima facie in the mother. Similarly the commissioner for probation and welfare is
not to cause a child who is in their care or order or over whom they have assumed parental
rights to be brought up in any religious creed other than that I which he would otherwise
have been brought up.

2.4.4Financial Ability.
The court may order the mother and or the farther to make periodical payments for the
maintenance of the child who is subject to a custodian order. The fact that one claimant to
custody or care and control is in a position to give the child a better start in life than
another does not give him a prior claim. It is the happiness of the child not its material
prospects with the court is concerned, and any other rule would automatically put a poor
parent at a disadvantage.

If a parent is so poor that he or she cannot even provide a horne for his or her children, this
might be enough to refuse him care and control other facts being a parent who can offer
the child good accommodation, education, health care must have the edge over one who
cannot.45 On the other hand, a party's financial position is clearly relevant in an extreme
case , for example if a parent is so poor that he cannot even provide a home for his
children, this might be enough you refuse him care and control of the child.

In the case of Hofmann v Hofmatm46 , the father's superior financial position over that of
the mother was irrelevant in custody, since it merely meant that he could support the
children properly while he was still with those children's mother, such financial
superiority could not be ignored if it could be proved that the father use his superior

45
Re F(1969)2ALLER.
46
(1970)EA 100.

20
position to cater for the children better than the mother whose financial inferiority would
stand in her way.

2.4.5Judicial separation.
Under section 15 of the Divorce Act,47 provides for judicial separation case of cruelty,
adultery or desertion without reasonable excuse for two years or upwards. If from the
evidence available to court, there is no hope of reconciliation. In the case of Mary Ruhura
v Christopher Ruhara, 48 it was held by Allen .J .that cruelty is a ground for .judicial
separation since there was no hope of reconciliation given the extent of injuries inflicted.
However it became wrong and unrealistic for the court to hold otherwise but to grant a
decree to the petitioner. The wife was granted judicial separation and entitled to permanent
alimony for herself and her children. Judicial separation can be granted on the ground of
cruelty or desertion without reasonable excuse for two years upwards.

In the case of George Nyakairu v Rose nyakairu/9 Immorality on the part of the father
was not sufficient justification for interfering with father's common law right to custody
of his children unless the immorality was so flagrant and coupled with habits injurious to
the children.

2.4.6Divorce.
In Uganda the Divorce Act under section 30 gives court the discretion to make and vary
orders relating to among others custody of children without prescribing the law to be
applied in deciding who of the spouses should have the custody of the children. However,
the courts in Uganda are guided by decisions in cases in the High court of justice in
England on which of the spouses should be granted custody. for example in Clzristoplzer
Kivumbi v Miriam Nanteza Kivumbi, 50 as held by Sekandi .J. a husband may seek
divorce if his wife is guilty of adultery and that the petitioner is innocent and justly
aggrieved by the other wickedness. This was also experienced in Topista Kayongo v

47

48
{ 1977) HCB 86.
49
( 1979) HCB 261.
50
( 1976) HCB 139.

21
Richard Sekiyuvu, 51 where Nyamchoncho .J. held that for an application for appointment
of a custodian there must be a formal application made by a mother having custody and
also that the magistrate had a discretion to make or refuse to make an order of
maintenance on the putative father for the payment of money o tbe mother or the
custodian depending on tbe circumstances of tbe cases court may also decide to give
custody to one parent and care and control to the other.

2.4. 7Access by parents.

Since custodianship order is intended not to destroy tbe link between a child and his or
natural parents it will be appropriate that the natural parents should have access to him. It
is therefore provided that on the making of the order (or at any time while it is in force)
the mother or father may apply to the court for access to be granted. 52

2.5Factors that may lead to change in custody.

A Custodian order intended to give the custodian legal security in his relationship with the
child so long as it remains in force he has tbe full powers in the child's upbringing. Unlike
an adoption order, it only suspends the rights of the natural parents .hence the court is
given powers to revoke or change custodianship order on the application of child's father
or mother, the child's guardian or a local authority. 53

An injunction may be obtained to restrain the defendant from interfering with the
plaintiffs right to custody as seen in the case of Iough v Wartf 4 where the plaintiffs
daughter was over the age of 16 and an injunction was granted ordering the child to return
to her parents, there should be an ongoing healthy relationship between tbe child and both
parents. 55 If a custodial parent regularly interferes with tbe visitation of the child that is a
negative factor that can leads to modification or change of custody to tbe non custodial
parents or a third party assuring the non custodial parent is able to properly care for the
child.

51
(1978)HCB240.
52
Wakeham v Wakeham (1954) 1 WLR 366.
53
S.M Creteny 1984 Principles of family law.
54
(1945)2 ALLER
55
Lawyers .com.

22
It should be noted that where one parent tries to undermine the child's relationship with
the other parent, it can also lead to change of the order.

Some typical reasons for changing child support arrangements (custody) may include
substantial change in circumstances which may result from changes in income of thee
parent who is paying support and changes in the child's circumstances can be a reason for
modifYing support if the child has significant new expenses against the parents or child's
will once the latter had reached the age of discretion that's to say 14 for the boy and 16 for
the girl. 56

The simplest procedure for a parent who wishes to invoke the jurisdiction of the family
Division of the High court without taking other matrimonial proceedings is to make an
application ward ship of court the Guardianship ofMinors Act of 1994.

According to the children Act57of Uganda provides that "any person having custody of a
child shall protect the child from discrimination, violence, abuse and neglect", this is to
protect the child from any harm by those under whose care the child is placed. Children
should not be separated from their families or of those persons entitled to bring them up
against the will of their families or ofthose persons except in accordance with the law.

In contestation with the African Press International(2009) which reports that people are
taking advantages of impoverished IDP(internally displaced persons) parents are
promised money and a good life their children, but the children end up miserable and
abused in the hands of those who buy them from their parents.

Hopefully parents are wishing the best for their children at the time of transfer of custody
which is not attained in the end, but instead the children are subjected to mistreatment,
torture and forced labor and other forms of abuses, such children are denied a chance to
attend school when they are turned into housekeepers and this contravenes Article 3058
and section 4 of the children Act, this is further emphasized in the UNAIDS (2006) report
on how cases such as rape, child sacrifices, child labor, defilement, denial of food and

56
R v Howe (1860).
57
1996 children Act cap 59.
58
1995 Constitution of the Republic of Uganda.

23
shelter, medical provision, physical harm among others have been inflicted on children in
Uganda.

2.6Custodial modalities.

If the child is in care by virtue of court's order, he continues in that care notwithstanding
any claim by a parent or any other person, all orders relating to custody, care, access and
supervision of care made from time to time may be varied, suspended, reviewed and
discharged 59 • They automatically come to an end on the child's eighteenth birthday.

It should be noted that, if the custodial parent regularly interferes with the visitation of the
child, whicl1 is a negative factor against the custodial parent and can lead to modification
of custody to the non custodial parent assuring that the non custodial parent is able to
properly take care of the child.

A specific policy favoring an ongoing healthy relationship between the child and both
parents, if one parent is trying to undermine the child's relationship with the other parents,
that is a negative factors against the parent who is trying to hurt the relationship. Of other
factors are close to equal, a court may grant custody to the parent who is more likely to
encourage an open and good relationship with the other parent. In the case of Teopista
Kayongo v Richard Sekiziyivu,60 it was held that the appellant visits her children at least
twice a month on Sunday afternoons and incase if illness, at any time during the day when
the child is sick at home.

If parents voluntarily wish to change custody, they may do so without having to prove
special factors such as endangerment or a change in circumstances, parents may change
custody without obtaining a court order, but if the parent receiving custody wants to make
the modification official thus making it more difficult for the parent to regain custody it is
best to obtain a court order modifYing custody, for example in George Nyakairu v Rose
Nyakairu, 61 where it was held that, since the parent's separation, the child had been living

59
(1965) Matrimonial causes Act section 18(5),(6).
60
(1978) HCB 261.
61
(1979) HCB 261.

24
with the father and there was nothing on record to show that the children's physical and
moral welfare had deteriorated as a result of staying with the father, and thus it would not
be in the best interest or the welfure of the children to have them shifted from the
environment that they had been living in for some good time.

Concerning the financial issue in divorce, most divorcing parents reach an agreement on
custody before they go to court and incase they don't agree on custody of the child, court
is given the mandate by section 9 of the judicature Act to decide on who would in the
circumstances to have custody of the child to protect and to take care of the minor.

2.7Advantages of custody to children and parents.

Children under custody are provided with a better environment to live and grow into
responsible citizens without having to live through psychological emotional and physical
torture .Although the child is put into custody of one parent and not another, its custody is
decided by the court upon the interest of the child which gives a better place and
environment for the child to be nurtured and brought up as a child.

Parents are also given the opportunity to stay with their kids and not to be exposed to
unfavorable conditions that may affect child's life when living with people who are not in
position to cater for the best interest and the welfare of the child.

2.8Disadvantages of custody.

When a marriage breaks down, the fact is that the persons most likely to suffer are the
children. Court in this situation withholds a decree unless the provisions of section 17 of
the Matrimonial proceedings and property Act are complied with, court does not make
declaration custody unless it obtains a satisfactory undertaking from either or both parties
of arrangements of welfare before court within specified time where the welfare includes
custody, education and financial provisions.

Children usually lose a degree of contact with one of their very few attachment figures
when a divorce occurs. It is a confusing and stressful time for children regardless of

25
whether the divorce was amicable or not. This at times leads to poor school performance,
low self-esteem, behavior problems, and distress and adjustment difficulties associated
with divorce. In adolescents from divorced families they note more instances of delinquent
behavior, early sex activity and continued academic issues.

Disadvantages of custody to parents is when a child is taken away their from custody on
one of the parent, his or her natural duties in protecting and maintaining one's legitimate
minor children cannot be performed directly by him or her since some of them can be
performed if the parent directly had tlte custody of the child. When both parents are
declared by court as unfit to have custody of the children of the family and children are
put in the care of the local authority. Upon death of one parent, the other parent cannot be
granted custody, unless he or she seeks custody and the burden on him or her is to prove
that his or her conduct has so changed that he is now a fit and proper person to have it. 62

Although custody of a child is a legal way of handling problems of a child who is likely to
be or has been keep in mind that courts are increasingly recognizing children's needs.
courts recognizes psychological authorities and studies related to child custody issues, and
the role of third parties such as grandparents, step parents and others in determining
custody and visitation plans for children when divorce or other circumstances remove
children from the traditional family setting. Custody can be affected depending on
assurance of accommodation and material advantages, child's wishes, personality and
character of claimants, medical evidence and foreign order. This is because custody of
children will help children to exercise their rights and thus makes life of the child more
comfortable and less cumbersome.

2.9Loopholes in the law governing custody of children.

The government implementation of the children's statute, which provides extensive
protection for families and children is exceedingly difficult, in view of manpower and
judicial constraints, in reality little is done to enforce the statute's provisions many
customary laws discrinlinate against women in the areas of adoption, marriage, divorce
and inheritance. In most societies women may not own or inherit property nor retain
62
Webley v Webley (1891) 64 l.T 839.

26
custody of their children under local customary law. No reports on whether the husband's
fumily has better claim to custody of children including step-children biologically related
to the mother and nor the deceased husband, could be found among the sources consulted
by the Research Directorate. 63

63
Uganda child Rights NGO Network ,Response to the Government of Uganda country Report on the
implementation of the UN Convention on the Rights of Children 2"'-Feb-1997.

27
 CHAPTER THREE.

OVERVIEW OF THE GENERAL LEGAL FRAMEWORK ON THE LAW OF

CUSTODY.

3.1Introduction
This chapter explains the laws governing custody of children as drawn from various
instruments both regional and international, and also it explains the institutional
framework of custody the is customary laws, the different conventions as the UN charter
on the Rights of Children and judge made laws among others. It should be put in mind that
the welfare of the child is the first and the paramount consideration in determining any
questions relating to the child and it's upbringing but this is not the sole consideration
before court on making decisions on custody on child custody.

3.2Regional and international legal framework of custody

Regional legal framework of custody.

3.2.1The constitution of Uganda

According to Article 34(1)64of the constitution that provides that "subject to laws
enacted in their best interests, children shall have the right to know and be cared for by
their parents or those entitled by law to bring them up" this article aims at protecting and
promoting the welfare of children. It gives any child the right to be cared for by their
parents and those entitled to by the law to custody of that child. Article 34(2) &(3)
basically provides for welfare of a child which includes the basic education and this shall
be the responsibility of the state and the parents of the child, medical treatment and any
other social or economic benefit by reason of religious or other beliefs. Therefore court

64
Constitution of the Republic of Uganda of 1995

28
can grant care and custody of a child to an applicant, it should consider the best interest
and the welfare of the child as it is supported the constitution.65

3.2.2The Children Act cap 59

The child guiding principle is provided for under section 3,66 this is the welfare principle
and the children's rights as set out in the First schedule of the Act. It is provided in the
schedule that "whenever the, a court, a local authority or any person determines any
question with respect to upbringing of a child, or the administration of a child's property
or the application of any income arising from it, the child's welfare shall be of the
paramount consideration."

In the case of Re Maria Naluggya, 67 an application for the applicant to be appointed as a

legal guardian and custody of Kassozi Moses, a minor of 14 years contending that she was
the natural and biological mother of the minor child and that since birth of the child she
has been and continues to be responsible for the minor's welfare including but not limited
to shelter, healthcare, education and clothing of the minor.

It should be noted that the judicature Act68 gives the High court powers to grant remedies
absolutely or on such terms as it may think fit. Similarly the civil procedure Act69the High
court has powers to grant such remedies as necessary in the interest of justice and to
prevent the abuse of court process.

Therefore, since the minor Kasozi Moses is 14 years, court was of the view that if the
application is granted it will be for the welfare and benefit of the minor and that the
mother has been and continues to be responsible for the minors' care by pay for his
accommodation, food and clothing because she had adequate resources and financial
means to take care of the minor in Australia and that being the biological mother she is
most suitable to be the guardian of the child and have his custody, thus court granted the

55
Constitution of the Republic of Uganda of 1995
56
Children Act cap 59
01
(1997)5 KALR
68
Section 14
69
Section 98

29
applicant the order of care and custody of the child because she was in position to provide
for the welfare of the child.

According to section 73(1) of the children Act cop 59, cowt may in the procedure of
declaration of parentage, grant custody of the child to an applicant on such conditions as it
may deem fit. This implies that once a person makes an application for custody, court
considers the requirement and the person must have fulfilled all the requirements that are
considered then court can grant the order of custody. However, its right to note that court
can at any time revoke the order of custody as provided for under subsection 2 of the same
section, which provides that court may, at any time revoke the grant of the order to one
person and make the grant to another person, institution or organization and in reaching in
the above decision court shall consider the welfare of the child. According to matters that
are to do with the welfure of a child, court can at any time revoke the order of custody.

Whenever a maintenance order is made against the father or mother, a court may, at any
time of making the order or from time to time thereafter, on being satisfied that the
applicant is not a fit and proper person to have custody of the child or is dead or has
become of unsound mind or is in prison appoint a person who is willing to have custody or
be the a custodian of the child. In the Kenyan case of Abdul Rehman v Sughra Sultan
(1960) EA 801, it was held that has powers under section 7 of the Kenyan judicature
Act to make orders as to access to the children and for their maintenance where, as in this
case, the court made an order giving custody of infants to the mother and the father was
granted the right to access to the children as regards their maintenance.

The children Ace" cap 59 provides the right of a child to stay with parents, a child is
entitled to live with his or her parents or guardians and under section 4(2), where a
competent authority determines in accordance with the laws and procedures applicable
that it is in the best interest of the child to separate him or her from the parents, the
suitable care available shall be provided for the child. Section 5(1) gives a duty to
apparent or guardian or any person having custody of the child to maintain that child and
the duty gives a child the right to education and maintenance ,immunization, adequate

70
Section 4

30
diet, clothing , shelter and medical attention and the person having custody of the shall
protect the child from discrimination, violence, abuse and neglect.

Therefore the above stated provisions of the children Act cap 59, protects the welfare of
the child and court is granted the discretion to grant custody to a person in position to
provide the welfare of the child.

At common law, a father was entitled to the custody of his legitimate children until they
reached the age of 21.71 His rights may be lost however, if to enforce these rights would
probably lead to physical or moral harm of the child or if his claim not made bona fide.
Section 19 of the children Act provides that if the parent has abandoned or disserted his or
her child, the burden shall shift to him to prove that he is fit to have to have custody of the
child claimed, 72 and that court may refuse to give him possession of the child altogether if
he or she fails to prove that he or she is capable of taking custody of the child. However,
equity gives effect to the father's right to custody of his children, but deprives him of it if
their welfare so demanded. This is seen in Re Agar Ellis and RV V Gy11galP3 , it was held
that if a father once abandoned or abdicated his rights, he would not be allowed to reasse1t
it arbitrarily if this would be contrary to the child's interest. 74 According to Article 34(1)
of the 1995 Constitution of the Republic of Uganda which provides that "subject to laws
enacted in their best interest, children shall have the right to know and be care for by their
parents or those entitled by law to bring them up."

Custody, may arise on ground of willful neglect to provide reasonable maintenance 75 .

According to the DIVORCE ACT cap 249, the court may at any stage of the proceeding or
after a decree absolute has been pronounced make such order as it thinks fit and may from
time to time vary or discharge the order with respect to the custody, maintenance and
education of tl1e minor children of the marriage, or divorce placing tl1em under the
protection of the court. Custody is appointed due to the following purpose.

a) In suits for dissolution of marriages.

71
Thomasset v Thomasset (1894) AllER
72
P.273
73
Ante pg.264
74
Re O'Hara (1900) 21.r 232
75
Sec 6 matrimonial proceedings court and property Act proceeding 427

31
 b) For nullity of marriages.
c) For judicial separation.

By the CHILDREN ACT cap 59, a local authority is under a duty to receive a child under
the age of 17 years of age into care if it appears;
a) That he neither has parents or guardians, or he has been and remains
abandoned by his parents or guardians or they are lost
b) That his parents or guardians are, for the time being permanently, prevented
by reason of mental or bodily disease or infirmity or other incapacities or
any other circumstances for providing for his proper accommodation.
Maintenance and upbringing,
c) Welfare of the child.

One of the circumstances that one can be granted custody on top of the above is if the
parents or guardians whereabouts have remained unknown for at least twelve months
and sec 3 provides that on the death of either parent, the survivors shall be guardians of
their legitimate minor children together with any guardian by the other. Custody, care
and control of children, will be granted depending on the welfare of the child, parties
conduct and foreign orders.

• THE INTERNATIONAL LAW RELATIG TO CHILD CUSTODY

The government of Uganda ratified the UN Convention on the Rights of children in

1990 and in 1996 Uganda domesticated the CRC by enacting a law for children, the
children statute, now and the children Act cap 59, laws of Uganda.

Uganda is committed to the full realization of the children's rights as enshrined in the
convention on the rights of children and its attendant protocols. This is evident in the
measures Uganda has taken to place its laws in conformity with the CRC and its attendant
protocols.

Article 9 of the Convention provides that parties shall ensure that a child shall not be
separated from their parents against their will except when competent authorities subject

32
to judicial review determines in accordance with the applicable law or procedure, thus
such separation is necessary in a particular case such as one where the parents are living
separately and a decision must be made as to the child' s place of residence. This is
reflected under section 4 of the children Act cap 59 where children should not be
separated from their parents unless the court considers the separation to be in the best
interest and the welfare of the child.

3.3 INSTITUTIONAL FRAME WORK;

3.3.1 INTRODUCTION
This chapter presented the roles played by different institutions, how they have
'improved on children's welfare and challenges they experience in trying to improve
status and welfare of the child.

3.3.2THE ROLES OF INSTITUTIONS.

Institutions such as UNICEF, ANPCANN, FIDA (U) and UCRNN have played a
significant role in promoting the welfare of children as detailed below;

The UCRNN plays an important role of protecting children's rights from being abused
and that the organization had enabled other organizations and stakeholders to join in the
conflict issues of children. This further pointed that UCRNN advices the issues of child
participation as well as policies that affect the well being of children and the need to
involve children. It was pointed out that institutions enhance existing efforts and joint
initiatives in promoting children's rights and welfare in Uganda. The UCRNN has
endeavored to involve its members in many national and NGO development initiative
such as PEAP, child sexual abuse, among others.

FIDA (U) federation ofUganda women lawyers, it was noted that FIDA fights for the
rights ofthe children to be put under lawful custody. Children are being placed under the
wrong custodial parents or guardians. It was noted that, due to poor living and survival
mechanism, some parents have entrusted the custody of their children to abusers. It

33
 should be noted that despite the good policies that Uganda has instituted since 1996,
many gaps still exist in the policy and legal frame work as regards children rights,
responsibilities and obligations. It's their duty to see that such gaps are considered and
well addressed by the appropriate authorities.

3.3.3HOW INSTITUTIONS HAVE IMPROVED ON THE CHILDREN WELFARE.

According to UCRNN, it is noted that child sexual abuse has been prevented through
organized activities such as press conference, news papers, pullouts, talk, shows, radio,
workshops and seminars aimed at raising awareness on the issue of child sexual abuse
and exploitation, for instance one that was organized in may 2002 in Munyonyo.
According to the policy advocates ofFIDA(U), custody of children is an arrangement on
when the law decides under whose care and protection the child is to be placed, not only
this, it also involves the specification of responsibilities of the custodial and non
custodial parents to the child/children in regard to what is best for the children.

3.3.4ELIMINATING SEXUAL ABUSE AND VIOLENCE

NGO's are very active in advocating against sexual violence that is wide spread m
Uganda. According to studied by FIDA more than two thirds of children have
experienced some form of violence or abuse by custodian parents. Yet the very notion of
domestic violence is not generally recognized, in Uganda society at large. The novelty
of the concept for the general population is reflected in the perception that the term
domestic violence applies only to the most serious cases, where physical injury is both
visible and grave.76 some positive steps by FIDA(U) have been taken recently to
advocated for increase legal protection from violence, however further necessary
legislation, the sexual offences bill, remains pending and there are significant obstacles
to effective implementation of new laws.

According to Tamale and Okumu Wengi 1995 custody is the exercising of the rights
which are attached by court to custody by a person with the right to custody and control
over child 2009. This means that before court grants custody, it must first compare
76
Information pack on the Domestic Violence Bill UWONET 2009

34
 different aspects in realization of the wellbeing and rights of the child as contained in the
Children's Act77 in addition, things like the child accessing the basic needs remains
essential for example access to education and health services for the children under
custody. Uganda has a universal primary education policy (UPE) which makes primary
education free and yet a common feeling in mral communities in Uganda is that schools
are also for free which may help children in villages' access education. Several measures
have been taken recently by different NGO's at improving educational and health
systems in Uganda to help young children access them easily.
FIDA (U) emphasized that some parents don't deserve custody especially if they are
scrutinized as negligent because this exposes the child to violence when they leave their
children under the custody friends, relatives or even strangers who in turn connive with
witch doctors to kill the children in the name of sacrifice to get wealthy or money. For
example in a record from FIDA (U) states a murder of a 5 year old girl Shammim a
daughter of Jalia Katusime a hairdresser in Njeru -Mukono District that took place when
Katusime left her daughter in the care of Francis Muwanga a neighbor so that she could
attend to a customer, but she returned home both Muwanga and the daughter were
missing, later Shammim 's decomposing body was with two fingers cut off, her tongue
plucked out and her genitals were also cut off. This was stated to be total negligence on
the part of Jalia for having left her minor child with the neighbor who killed the child
who had no protection from the parent.
Government should seek to enable and to empower parents to protect their children and
deny those without rightful custody of their children and parents should also not
overstay at their workplace and leave their kids suffering alone in the hands of bad
people.

According to the children Act cap 59, 73 any person having the custody of a child, shall
protect that child from discrimination, Violence, abuse and neglect, this is aimed at
protecting the child's welfare and danger. The constitution of Uganda of 1995 under
Article 21 provides that all persons are equal before and the law and in all spheres of

77
Section 3 of the Children Act cap 59 and the first schedule to the Act.
78
Section 5 supra

35
 political, economic, social and cultural life, and shall enjoy equal protection of the law
and shall not be discriminated.
FIDA(U) and the Organization Law and Advocacy For Women in Uganda have initiated
several cases before the constitutional court successfully challenging the discriminatory
provisions of the succession Act which bars unmarried women and illegitimate from
succeeding their deceased husbands.

The UCRNN therefore helps in fighting for children's share of the property. According
to the customary law, custody of children on loss of parents is normally given to paternal
side and this is usually derived from the deceased's will available to the clan leaders
who intervenes to decide who shall be responsible for the orphans, but normally this is
reportedly done in the best interest of economic gains than the best interest of the
children. In that case property is meant to carter for the children is swindled and stolen
by so called relatives.79 This defeats the children Act cap 59 which considers the
welfare and the best interest of the child, this customary laws exposes the child to abuse
than to accord them with protection.
It should be noted that where the parents of a child are deceased, parental responsibility
may be passed on to relatives of either parent, or by way of a care order to the warden or
an approved home or to a foster parent.

79
UNICEF(U) 2005 Report

36
 CHAPTER FOUR

INSTITUTIONAL CHALLENGES AND RESEARCH FINDINGS.

4.1Introduction
This chapter will basically examine the challenges face by the mentioned institutions in
improving on the welfare of children in Uganda and also the findings of the research.

4.2Cballenges experienced by these institutions

Institutions for example the UCRNN is weak because of lack of economic dependency or
enough funds to effectively execute its mandates, hence the various initiatives that are
being carried out by these institutions, actors and agencies are not coordinated and rather
done independently due to lack of enough money to bring them together. 80

Another challenge is that children issues are not considered a priority by most local
councils and that even where they are included in the development plans, very little
resources are allocated to children's issues in District budgets and some of these
allocations are not actually released. It was pointed out that the community services
directorate at district levels are the least funded. At the lower local government level, the
situation is even worse and in some districts no provision is made at all for children.

Support supervision is also said to be minimal by donors due to resource constraints.

Discussions with policy advocates reveled that in most cases central government staff In
general visits districts mainly to supervise projects funded centrally through conditional
grants and program, and donors at times don't appear at all but keep sending funds as
reflected in the budgets.

Although efforts to disseminate issues to do with children's rights and welfare have been
undertaken by institutions like FIDA (U) UCRNN, USAIDS among others, it is noted out
that there is still lack of awareness as well as misconceptions about what children's rights
and welfare actually is and that this was practically because some people have a negative

80
Accounts and Administrative Assistant UCRNN.

37
attitude about children's rights under custody and this is because to them this literally
means freedom implying that children are free to do whatever they want without guiding
them about what they are supposed to do in order to become responsible citizens of
Uganda.

There are some seated cultural and religious beliefs and practices which tend to create
bottlenecks. In this case is the subjecting of children to corporal punishment as an
approach to discipline them, children are also killed as sacrifices with a belief of getting
wealthy, for instance in the concluded case of Uganda v Kato Kajjubi where in the High
court at Masaka Mukubii, ruled that where even all evidence suffices, the loopholes will
set the culprit free. This causes distrust and dissatisfaction in the people when that which
they sought to be justice, turns out to be injustices which is a serious concern that needs to
be addressed because such practices could lead to mob justices if appropriate amendments
are not done immediately.81

A report from Uganda police in which police statistics indicate that of the average 3000
children who disappear from their homes annually, 200-300 are child sacrifice cases82

Article 30 oftlte 1995 Constitution oftlte Republic of Uganda provides that all persons
have a right to education, rights of the family, where of the purpose of this law is to place
the children under a fuult and in school. The issue of determining custodial parents at the
times for revision, when children as young as two years run away from home with their
big sisters or brothers who are also barely 6 years and above all to take care of them while
on the street and not any other place. According to the researcher such situations call for
reversing of the custodial arrangements. This is a situation which was reported as common
when custody is given to the father who eventually marries a new wife and there after
assumes that all things are fine in his absence while at work. This in most cases is not true
because children are left suffering back at home, often times the mothers get to know of
the suffering child before actually they leave home. In most cases when they follow the
right legal procedures to secure their children, corrupt officials block this and being at a
financially disadvantaged position, corrupt officials block this appeal and in this way they

81
UNICEF (2009)
82
UNICEF(2009)

38
are not left with the option but to plot escaping with these children from the grievous
environment which was provided by as a result of its loopholes.

This in most cases is not easy although some succeed and steal their children from school
if such kids even have a chance to access education or they will wait from a nearby shop
to see whether the children are sent out of the gates upon which they pick them however,
83
section l(i) still recommends that this child be taken back until the law discovers that
the environment is not in the best interest of the child. This demoralizes the ability of the
haunted parents for the kind of suffering that their children will go through when returned
to the same custody, they are exposed to striker and tough conditions to keep them away
from their mothers. Eventually these children are oppressed and thus run to the streets.

In such above cases, it is difficult and it takes time to win the trust of a child on the street
whom life has been unkind, they see strangers with suspicion and are not easily won
over. 84 This is purposely because these children are suspicious of those that would wish to
help them, since they lost trust in protection of elders where in homes those they assume
would be their best protection, instead abused them, exploited and tortured them thus not
sure of their protection anymore. It takes heart for them to believe in adoption because
they expect to suffer the same way they did in the first home.

This means that Article 34(1) of the Constitution has not been effectively applied and
thus, children don't seem to have that right to know about their best interest alternative
custody and don't obtain the care they are accorded in here. The care provided for in
Article 34(2} of the constitution cannot be obtained when the law takes delays in reversing
custodial arrangements and children end up on streets or their death beds as seen in the
case of the late Ssebanga who was almost starved to death contrary to Article 34(3). This
is clearly evidenced in Monitor (2006} of how Ssebanga was starved and passed through
grievous hands of his own father and step mother and was kept in the house all the time.
" ... the father of the Kyebando, starved boy wanted to kill him, the boy's aunt told court
Viola Nababi who rescued Enock Ssebanga from torture, said Ssebanga's father

" Children Act cap 59

84
www.adptionnow.co.uk

39
threatened to kill him and throw his body into a stream. Charles Kayongo (Ssebanga's
father) and his wife Regina Nabakooza are charged with attempted murder.

Such situation lead to an immediate need to revise the way issues of custody are resolved,
if a case is raised against a custodial parent, then let it be given immediate concern, other
than delays which normally are a result of corrupt officials concerned.

4.3RESEARCH FINDINGS
According to the study findings, an unrealistic child custody order is a worldwide
problem. This is evidenced from proceeds of the seminar which was held at the UN Head
quarters in New York, it was quoted from a UNICEF representative that, millions of
children must find for themselves or work to support their families, instead of focusing on
learning and plying. UNICEF estimates that 2 million children are sexually exploited and
1.2 million children are trafficked every year and yet according to the custodial
arrangements he or she who gains custody promises to take good care of the child. Thus
UNICEF plays a role of preventing child trafficking.

Any person having custody of a child shall protect them from abuse and neglect. The
finding established is that, in Uganda those, to whom custody has been accorded, turn out
to be abusers of children's rights. Violence as stated that violence is the most significant n
factor pushing children into streets and is responsible for child's reluctance to return home
and also Aids scourge and parent separation is of significant impact on children. 85

For the children on the streets who are frustrated by their custodial parents thus resorting
to live on streets, face the hostility, harassment, rapes and also unlawful arrest and
imprisonment, and the pervasive deprivation they face , call for concern and urgent action
the government of Uganda and institutions such FIDA, UNICEF.

85
Munene J.C and Janet Nambi journal of community Development

40
According to the children act cap 59, 86 in regard to the child's right to stay with his or her
parent, provides that a child is entitled to live with his or her parent or guardians. The
purpose of this law is to accord a child the right to stay in the home of its parents until he
or she attains the age of 18 years and who wishes to leave the home.

It was established that in Uganda today, children are chased away from their parent's
homes especially for the case of girls when they attain puberty and begin to sexually be
active. Some of them become pregnant and are chased out of homes and yet it is the duty
of parents to ensure that the child id protected from abuse as provided for in the children
Act cap 5987 •

FIDA (U) contents that, in issues concerning early childhood pregnancies, customary law
tends to prevail over other laws , where in most societies in Uganda a girl who gets
pregnant before marriage is forced to get married and fathers tend to chase the pregnant
girl away from home claiming that they are "EBISI!RANl"(TABOOS) to the family and
they are not fit to sleep in their father's houses and all chances to education are blocked.

This is contrary to the protection provided for in the children Act cp 59 which entitles the
child to shelter by its parents. Parents tend to forget that it is their role to ensure that the
children are not exposed to any form of abuse. Amendments should be called for to ensure
the best laws are given first priority if the best interests of the child are to be protected.

If a child is put under the right custody, then all measures can be done to ensure that he or
she is safe and the legal measures pursued for the good of the child are reached at other
than when the child is left to begin a new life on his or her own without pre- marital care.
The result of this might be death given the age of the girl and the medical attention that
she can acquire at a zero income level, and yet to some extent it could have been the
parent's negligence that things happened in that direction.

When a competent authority determines in accordance with section 4(2) of the children
Act88 of the laws and procedures applicable that is in the best interest of the child to

86
Section 4
87
Section 5
88
Cap 59

41
separate him or her from the parents, the best substitute care available shall be provided
for the child. This is to give children to have their basic needs met not only for survival
and for protection but also to be able to develop to their full potential to participate as
members of the society and grow up to be caring and responsible citizens of Uganda.

It is established in the study findings, that under circumstances of adultery, if divorce is

effected and the father is given full custody ofthe children, these children normally end up
under the control of step mothers who in most cases abuse their rights through
discrimination and at times physical abuse through harsh punishment, this forces children
to run away from home to the streets and yet the fathers don't get too much involved in
finding out about the whereabouts of the children. This was reportedly common among
the adopted children of the Watoto church.

Section 5(1/9, " he who is accorded custody if responsible for the education and
guidance, immunization, adequate diet, clothing, shelter, and medical attention". This
implies that at the times custodial power accorded are not to the best interest of the child,
if in just a few months ahead of the custody in regard to the good financial back ground,
the child will be out on the streets struggling, their being at school like other children. This
therefore calls for a critical observation and consideration of the custodial issues as held in
WILLOUGHBY V WlLLOUGHBy9°.

Uganda consists of lack of strong supportive customary laws which protect children,
children end up providing for their own means of survival either by doing some small jobs
like carrying luggage or garbage for some payment on which they survive. With such
costs, parents tend to explain to their clan leaders of how the child got spoilt and ran to the
street, and this according to them, this child is too spoilt to the extent of spoiling others at
home. This is done without actually finding out the consequences that force this child to
start a new life on their own.

This is child abuse and this calls for further stretching of revision of laws that govern
custody of children to fit accordingly with section 5(1) the children's act cap 59. On the

89
Children act 1996 cap 59
90
1951 p.184 C.A

42
duty to maintain a child, It should be put in mind that it's the duty of parents, guardians or
any person having custody of a child to maintain that child and in particular that duty
gives a child the right to education and guidance and immunization, adequate diet
clothing, shelter and medical attention.

Harmful custody practices shall be unlawful to which subject a child to socially. 91 This
situation can be traced by the weak11ess of the law relating to children issues and how it
could curve so easily to customary practices was reported in The Daily Monitor 22"d
November 2008 pg.8, when a 14 year old Ethiopian girl and pupil of Kampala primary
school was defiled on her way to school. She was arrested, charged with simple
defilement and remanded in Naguru remand home while the defiler was set free on bail.
Her community wanted to force her into early marriage but she refused leading to her
planned rape. This contrary to the provisions of the children act on the protection of the
child, but the law went ahead to condemn the victim and set free the defiler.

In addition it was established that, Uganda has not put into effect the use ofArticle 3(d) as
forms of child labour, convention 182 as children are seen to work as house maids, shop
attendants, strip dancers, and the public places such as bars. It is worth noting that Uganda
has not yet ratified this convention as children of below 18 years of age are seen to work
as house maids, shop attendants, strip dancers and being in public places as such as bars,
according to the URNCC official.

Under section 81 Children's Act cap 59, (no child shall be employed or engaged in any
activity that may be harmful to his or her health, education or mental physical or moral
development", this tends to protect children from any form of abuse or exploitation be in
child labour, mental torture, physical or moral disparities for proper growth and
development. However, child labour practices, sexual exploitation, mental and physical
torture of children are common cases in Uganda, although at times they go unreported of
if reported then their protractors don't receive appropriate penalty as revealed by
Sserwadda 2008, when he comments that, while many cases are handled over to the
authorities, in most cases are not adequately handled or the nine cases handled over to the

91
Section 7 children act cap 59

43
police ( nine cases only point to under reporting) only two receive a relatively just
sentence of 2-6 years of jail term, two cases were mishandled and another two were given
very lenient penalties. This discourages the public's ability to pursue justice because of the
leniencies of the law even when children have been exposed to grievance circumstances.

44
 CHAPTER FIVE

RECOMMENDATIONS AND CONCLUSIONS.

Introduction.
This part offers some recommendations on how custody issues can be handled and
resolved.

5.1RECOMMENDATIONS
There are some provisions which should be called up for the amendment, reason being
that they put a very strong protection and care on the child under custody. In situations of
divorcing parents and even in most bitterly contested cases, the parties generally should
always have a sincere concern in reaching the custody and visitation arrangements that is
in the best interest of the child, for example under Article 34(3) 92 states that subject to the
law enacted in their best interests, children shall have the right to know and be cared for
by their parents or those entitled by law to bring them up .

./ Duties of family courts.

The primary purpose of courts is to ensure that during divorce petitions, courts should not
I
overlook the question of the interests of the child. If the parties do agree about custody
arrangements, the judge will nevertheless look into them in order to ensure that they are I,'I
satisfactory (or the best that can be devised in the circumstances) specialized courts can be I
used for case involving child custody disputes for example in Uganda, a specialized court
for children, which has achieved a great success in settling custody disputes, this can be
looked at as an example by the concerned authorities to formulate more effective policies.

./ Role of the Government.

The government has a duty to protect the environment of children under custody, it should
teach the people or custodians who abuse children entrusted to them about the rights of
I'

92
The constitution of the Republic of Uganda 1995 .

45