GROUP 3 PRESENTATION ON CUSTODY, MAINTENANCE AND

DECLARATION OF PARENTAGE.

GROUP MEMBERS
1. MURUNGI MARVIN……M22B11/067
2. MICHAEL JOSEPH TENYWA
3. CATHERINE KARUNGI
4. IRENE MUKYALA
5. NINSIIMA JOLLINS……M22B11/084
6. SSAABWE DERRICK
7. BAGUMA DAVIS
BRIEF FACTS.
Obed and Gladys celebrated a colorful marriage on 14th February 2014 and have
been blessed with 4 children. During the subsistence of their marriage, Obed got
involved in an extramarital relationship with Suzan Nantaba who has since
given birth to 3 children. After finding out about this affair, Gladys decided to
leave and is now staying with her 4 children. Obed has since then refused to
provide any support to his children in Gladys’ care and stated that he will only
provide the said support if she returns home as a proper married woman.

In a separate set of facts, it has also been discovered that Obed is furious with
Suzan because she is the reason for Gladys’ separation from him and that he
even doubts whether Suzan’s 3 children are even his judging from their
different complexion from his. Suzan however is very sure that her children are
Obed’s and not Khalid’s based on the former’s assumption.

ISSUES RAISED FROM THE ABOVE FACTS.

1. Whether Obed neglected his duty to maintain his children c/S 5 of the
Children Act Cap 59 as amended.
2. Whether Gladys deprived the children of their right to live with their
father.
3. Whether there are any remedies to the aggrieved party
4. Whether a declaration of parentage can be made against Obed

LAW APPLICABLE
1. The 1995 Constitution of the Republic of Uganda as amended
2. The Children Act Cap 59 as amended
3. Relevant Case law

APPLICATION AND RESOLUTION OF THE ISSUES RAISED

Issue 1. Whether Obed neglected his duty to maintain his children c/S 5 of
the Children Act Cap 59 as amended
Child Maintenance is enshrined in Article 31(4)1 of the 1995 which states that
parents have a duty to care for and bring up their children. The same is
emphasized in Article 34(2) which emphasizes their right to basic education,
which shall be provided for by the State as well as their parents. The Black’s
Law Dictionary also defines maintenance to mean the parental obligation to
1
The 1995 Constitution of the Republic of Uganda as amended in 2005 and 2017
take care of and bring up a child, both legitimate and illegitimate. Section 5(1)2
states that a mother, father, and guardian has a duty to maintain a child who is in
their legal custody. This section goes ahead to stipulate the forms this
maintenance can take which were also reiterated in the case of Andrew
Muhangi v Ingrid Karungi3. It can be in the form of education and guidance,
immunization, adequate diet, clothing, shelter, and medical attention.
Subsection 2 of the same also mandates that a person having legal custody to
protect the child from discrimination, violence, abuse, and any neglect.
Section 76(8)4 stipulates another criterion for child maintenance which also
includes sustaining the general welfare of the child and this was considered as a
paramount principle in the matter of Deborah Joyce Alitubeera and Richard
Masaba5. The court stated that it is important while looking at maintenance to
look at not only the child’s sustenance of basic needs of life but also at their
emotional and psychological maintenance while they are still under the legal
custody of their parents or guardians. In Kirungi Doreen v Mugabe, in a
divorce petition, court emphasized the duty parents have to maintain their
children, and in this it ordered the father to pay 400 USD per month for
maintenance of the child whose custody was granted to the mother.
In the case of Chaka v Rwalinda, The husband petitioned for a divorce and
custody of the only child in the marriage. The maintenance was for school fees,
food, medical expenses and contribution towards shelter. Court granted that
maintenance order as the sums prayed for were fair and wife was unemployed.
Custody was granted to the mother.
From the facts provided, Obed has intentionally refrained from providing any
support to his children, unless Gladys returns to their matrimonial home along
with the four children. Obed’s actions are clearly contrary to section 5 of the
Children Act which states that it is the duty of a mother, father and guardian to
maintain a child.
Additionally, it is important to note that the Children Act Cap 59 as
amended makes it clear that during a divorce, separation or nullify, both parents
have to adhere to the duty of maintaining their children, regardless of their
personal conflicts. of a child,
children.

2
The Children Act Cap 59 as amended by the amendment act of 2016
3
Matrimonial cause No.22 of 2022
4
Ibid n2
5
Civil Appeal No.70 of 2011 [2012] UGCA 4
 Issue 2: Whether Gladys deprived the children of their right to live with
their father.
The facts at hand disclose that Gladys when Gladys got to know about the
extramarital affair between her husband and Susan, she decided to separate from
her husband and is now staying alone. Article 31(4) of the Constitution of
Uganda, 1995 as amended provides that it is the right of the parents to care for
and bring up their children. In lieu of this provision, by Glady’s deciding to
separate from her husband without court’s consent, she violated the rights of
Mr. Obed to care and bring up his children. Depriving Mr. Obed of his right
equally affected the fulfilment of his duty.
Additionally, Article 31(5) provides that children may not be separated from
their families or the persons entitled to bring them up against the will of their
families or of those persons, except in accordance with the law. According to
the facts at hand, Glady’s did not separate in accordance with the law where she
would seek a grant of custody by court. The facts state that she decided to
separate. The children were separated from the father against his will without
paying recourse to the law. Similarly, Section 4(1)a of The Children
Amendment ACT 2016 provides for the rights of a child which point out that
every child shall have a right to live with his or her parent or guardian.
The right of a child to live with his or her parent was emphasized in the case
of Troxel V Granville where the petitioner sought visitation rights to a
daughter of his deceased son. While as Granville, the mother of the daughter did
not oppose the visitation rights of Troxel, she opposed the number of times her
child could be visited. The first court of instance decided in favour of Troxel but
upon appeal by Granville, the decision was overturned by the US Supreme court
and the case was dismissed. Court held that the earlier decision “violates her
(Granville) due process right to make decisions concerning the care, custody
and control of her daughter”. Relating to the instant facts, taking the children
away from their father without his consent and without the grant by court
violates his right to make decisions concerning the care, custody and control of
his children.
Under section 3 of The Children Amendment Act 2016, the welfare and guiding
principles of a child require that in every decision of the state, court, tribunal or
local authority, the welfare of the child shall be of paramount importance.
According to the facts at hand, the father shows willingness to care for his
children and entire family and he is desirous of reuniting with his children. In
the old English case of ReMcGrath (Infants) , welfare of a child was defined
to include ties of affection. In a similar case, Walker v Walker & Harrison in
determining the welfare of the child, material conditions were secondary to
other emotional and psychological factors. The children equally deserve the
security, love and care from their father, Mr. Obed; hence, Glady’s unlawfully
separated them from their father.

Issue 3. Whether there are any remedies for the aggrieved party.
The facts show that the aggrieved party is Gladys who has been given an
ultimatum to come back home that is if she is to receive any form of
maintenance for the children. As discussed under the first issue, this act is
contrary to Section 5 of the Children Act as amended. The available remedy for
her is to apply for a child maintenance order. In the case of Fenzi v Nabbosa
Natasha6. A child maintenance order is fortified under Section 767. This section
highlights who is eligible to apply for a maintenance order, when, and the
procedure that must be followed during the application. A mother, a father or
the guardian of the child can apply for child maintenance against the father or
mother as the case may be. Section 76(2) also stipulates that a child in respect of
whom a declaration of parentage has been made may also make an application
through a next of friend for a maintenance order.
An application can be made during a subsisting marriage, proceedings for a
divorce, separation, during and after a declaration of parentage8 and also during
pregnancy but before the said child attains the age of majority. The procedure
that should be followed is stipulated in Section 76(5) to 76(9).
Application for a maintenance order shall be made by complaint on oath to
a family and children court having jurisdiction in the place where the applicant
resides and summons shall be served on the father of the child or the mother of
the child.
The court shall issue a summons to the father or mother of the child to appear
before the court on a day named in the summons.
Section 76 (7) on the appearance of the person summoned or on proof that the
summons were duly served on him or her seven days or more before the
hearing, the court shall hear evidence at the applicant and shall also hear any
evidence tendered by or on behalf of the father or mother and the court may
then having regard to all the circumstances of the case, proceed to make an
order against the father or mother for the payment to the applicant of:-
6
Miscellaneous Cause No6 of 2012
7
Supra n2
8
Section 76(3) of the Children Act as amended
a. A monthly sum of money as may be determined by the court, having regard
to the circumstances of the case and financial means of the father or mother, for
the maintenance of the child.
b. The funeral expenses of the child if the child has died before the making of
the order, and
c. The costs incurred in obtaining the order
Section 76(9), if the court thinks fit, it may put in place a monthly payment,
order that a lump sum determined by the court be paid into court and that the
sum be expended on the maintenance of the child.

PART B OF THE QUESTION ON THE DECLARATION OF PARENTAGE.

Issue 4. Whether a declaration of parentage can be made against Obed
Who is a parent?
Section 1(n) of the Children Act Cap. 59 as amended defines a parent as the
biological mother or father or adoptive mother or father of a child.
A parent can also be defined as one who begets or one who gives birth to, or
nurtures and raises a child; or a relative who plays the role of a guardian. It
means a woman who gives birth to a child and a man whose consent to the
adoption would be required. If a child has been legally adopted, then term
‘’parent’ means the adoptive mother or father of the child. A parent in other
words can be a care giver who gives birth to a child and a man whose consent to
the adoption of the child would be required.
Article 31(4) of the Constitution of the republic of Uganda of 1995 as amended
states that it is the duty of the parents to care for and bring up their children. The
same Article under clause 5 states that a child may not be separated from their
families or persons entitled to bring them up against the will of their families
except determined by the laws of that jurisdiction.
Article 9(1) of the United Nations convention on the rights of a child states that
parties shall ensure that a child shall not be separated from his or her parents
against their will and the separation should be to the best of the child’s
interests.
Who may apply for parentage?
Section 67 of the Children Act cap. 59 as amended provides that a person who
is the mother, father, the guardian may make an application for a declaration of
parentage by complainant on oath to a Family and Children’s court having
jurisdiction in the place where the applicant resides for summons to be served
upon him or her, the man alleged to be the father of the child or the woman
alleged to be the mother of the child.
An order of parentage is sought at any time before the child reaches 18 years
because a child, under Section 2 of the Children Act cap. 59 as amended is a
person below the age of 18 years. Therefore, anybody above the said age ceases
to be a child.
At common law, the presumption is that every child born in any wedlock (the
state of being married) is a child of that marriage, however where the parentage
of the child is disputed.
Parentage is a legal relationship between a child and a parent of a child. If
parents are not married, parentage establishment requires a court order.
Section 671 of the Children Act Cap. 59 as amended provides that any person
who is the mother or the father of a child or even the guardian of a child may
make an application for a declaration of parentage by complaint on oath to a
Family and Children court having jurisdiction in the place where the applicant
resides for summons to be served on the man alleged to be the father of the
child or the woman alleged to be the mother of the child.
In the case of NYAKAIRU –Vs- NYAKAIRU, it was held that in Uganda the
law relating to custody of children was the common law, and this was that the
father had a right to the custody of the children however young they were and
the mother had to bring in special circumstances to prove that the father’s
common law right to the custody of his children should be superseded.
Proof of parentage.
Under Section 702 of the Children Act cap. 59 as amended, the burden of proof
on parentage shall lie on the person alleging it. And section 64(4)3 the court
may, on the application of any party to the proceedings or on its own motion,
make an order, upon such terms as may be just required any person to give any
evidence which may be material to the question, including a blood sample for
the purpose of blood tests.
However, where the paternity of the child is disputed, due to other factors, it
results into an application for declaration of parentage. In declaration of
parentage, court will consider a number of factors. The mere fact that the child
resembles or doesn’t resemble the presumed parent is not conclusive evidence
of parenthood or otherwise.
In the case of Petelonia Mpairirwe –Vs- Oliver Ninsabimana (1994), it was
stated by the court that evidence of similarity in physical features between a
child and the alleged parent is admissible to prove paternity even if the evidence
is not conclusive.
Section 71 of the children Act Cap. 59 as amended provides for the prima facie
and conclusive evidence of parentage as discussed below:-Births register
According to Section 71(1) of the Children Act, where the name of the father or
the mother of a child is entered in the register of births in relation to a child, a
certified copy of that entry is prima facie evidence that the person named as the
father or mother is the father or mother of the child named therein.
Signed instrument
According to Section 71(2) of the Children Act, an instrument signed by the
mother of the child and by any person acknowledging that he or she is the father
or mother of the child if the instrument is executed as a deed or if the instrument
is signed jointly or severally by each of those persons in the presence of a
witness is prima facie evidence that the person named as the father is the father
of the child or the mother.
In the case of Wynn jones Mwambo Vs. Wandoo petro Aaron (1996) the
respondent has written a letter to the applicant had processing that he still
remembered “that night” court held that the letter undoubted tended to prove
that he was the father of the child.
Court inferences
The court under Section 69(3) of the Act may infer paternity simply from the
facts of the case; for example, if it were shown that the mother and the man
spent the night together at the time the conception is said to have taken place,
this would be evidence of the man’s paternity.
In Wynn Jones Mbwambo –Vs- Wandoa Petro Aaron [1966] 1 EA 241, the
respondent had written a letter to the applicant expressing in endearing terms
saying he still remembered “that night”. The Court held that the letter
undoubtedly “tended” to prove that he was the father of the child. But also went
further to hold that the person depending on such an allegation should be
corroborated and the corroborative evidence need do no more than show the
probability that the mother’s evidence implicating the man is true; it must point
to the man as the probable father, but it is not correct to say that it must be
incapable of any other interpretation. This is also brought out under Section
69(3) of the Act.

• Blood testing
 Blood tests have been used to prove parentage of the child(ren).and this has
been highlighted in section 69(4) of the children’s act and it has been eraborated
in several cases ie h v h 1966 All er 356 justice ormorod held that basing on the
evidence of the blood groups it was abundantly plain that this child was not the
son of the husband.both the husband and wife were blood group o and the child
was blood group a2 which made it perfectly plain that the husband could not be
the father of the child Because the child had to get a2 from his real father so
there was adultery proved with a man and the court issued a decree Nisi
accordingly

b) DNA Testing
This can establish parentage with certainty.DNA profiling compares the
pattern produced by sequences of nucleotides based known as mini satellites
which can be obtained by subjecting body samples like blood semen saliva
among others to series of complex processes which enables the pattern to be
read like a barcode
Thus a child’s DNA will include pattern identical to those found in each parents
dna. DNA profiling requires samples from the child and both alleged
parents where parentage is disputed however sufficient information might be
available from the testing f one parent and two siblings so long as the parentage
of the second child was not disputed

It’s important to note that the cost of this test is much higher than the traditional
blood test and this may determine the choice of test of some litigants

Therefore in the facts at hand mr obed is denying the three children by saying
they resemble mr khalid and the resemblance is not a strict factor for court to
put it in consideration therefore mr obed should consider the above analysed
methods of proving parentage