CAVENDISH UNIVERSITY

NAME : NGEINE MAGRET

ID. NO : 203-816
COURSE : LLB
COURSE UNIT : FAMILY LAW
YEAR : 2
SEMESTER : 2
LECTURER :

QUESTION
a) Discuss the structure and function of the family and children’s court
b) Discuss the duties and functions of the probation and welfare officer.
 c) Discuss the structure and function of the family and children’s court

FAMILY AND CHILDREN COURT

The procedure of the family and children court as set out in these Rules is subject to section 16
of the Act. 4

Under Article 257(c) 1of the Constitution and Section 2 of the Children Act Cap 59, a child
means a person below the age of eighteen years2.

Under Article 257(c) of the Constitution and Section 2 of the Children Act Cap 59, a child
means a person below the age of eighteen years.

The case of McKay v Essex Area Health Board [1982] 2 ALLER 771, considered with an
unborn child has any rights including that to life. In this case, a mother and child claimed that a
doctor not issuing abortion advice when a serious disability is diagnosed during pregnancy
deserved recompense in the form of damages for “suffering entry into a life in which her injuries
are highly debilitating.” The mother and child lost the case 3. The Court’s reasoning was that a
fetus is not yet a human being to have a say on whether they should live or not.

A court is a body of people presided over by a judge, judges, or magistrate, and acting as a
tribunal in civil and criminal cases

FAMILY AND CHILDREN COURTS

The Family and children's court is presided over by a magistrate grade 1 and entertains
applications in regards to a child's care and protection. Court can for example grant orders
against both or either parent for maintenance of a child.

Custody and maintenance of children

Custody concerns the legal rules governing the right of children regarding whom to live with. It
means the sum total of the rights which a parent may exercise over their child. The rights subsist
until a child attains the age of majority.

1
Article 257(c)
2
Section 2 of the Children Act Cap 59
3
McKay v Essex Area Health Board [1982] 2 ALLER 771
In Hewer v Bryant [1970] 1 QB 357, the British Court used the following words in relation to
custody, “In its wider meaning, the word custody is used as if it were almost the equivalent of
guardianship in the fullest sense whether the guardianship is by nature, by nurture, by
testamentary disposition, or by order of a court… I use the words fullest sense because
guardianship may be limited to give control over the person or only over the administration of
the assets of an infant… Adopting the convenient phraseology of counsel, such a guardianship
embraces a bundle of rights or, to be more exact, a bundle of powers which continues until a
male infant attains (the age of majority) or a female infant marries 4. These include the power to
control education, the choice of religion and the administration of the infant's property. They
include entitlement to veto the issuance of a passport and to withhold consent to marriage. They
include, also, both the physical control of the infant's personal property until the infant attains
years of discretion5....”

Article 31 (4) enjoins a duty upon parents to care for and bring up their children. This means that
the parents of a child have the first right to custody of their own children.

It is when parents live apart, are unmarried or divorced or one or both of them are dead that the
issue of who should have custody of children.

According to Section 73(1) of the Children Act (as amended), the court may, on application of a
sole applicant or joint applicants, grant custody of a child on such conditions as may be
determined by the court. The Court will take into consideration the aforementioned guiding
welfare principle.

According to Section 73A, this order is made where the court is satisfied that the child is
suffering or likely to suffer harm if the order is not given or if it is in the best interests of the
child.

Custody by agreement is provided for under Section 73B of the Act. Here the parents of the child
enter into a written agreement to determine which of them shall have custody of the child.

4
Hewer v Bryant [1970] 1 QB 357
5
Hewer v Bryant [1970] 1 QB 357,
Such an agreement is enforceable in a Court of law unless it is determined by the Court that it
was made not in the best interests of the child, was made under duress or made fraudulently.

Sometimes the Court may find difficulty in application of the welfare principle as illustrated
below:

Establishment of family and children court

(1) There shall be a court to be known as the family and children court in every district, and any
other lower government unit designated by the Chief Justice by notice in the Gazette.

(2) A magistrate not below the grade of magistrate grade II shall be assigned to preside over the
family and children court.

Jurisdiction of family and children court

(1) A family and children court shall have power to hear and determine— (a) criminal charges
against a child subject to sections 93 and 94; and (b) applications relating to child care and
protection.

(2) The court shall also exercise any other jurisdiction conferred on it by this or any other
written law.

Venue of the family and children court. A family and children court shall, whenever possible,
sit in a different building from the one normally used by other courts.

Procedure in family and children court

(1) The procedure of the family and children court in all matters shall be in accordance with rules
of court made by the Rules Committee for the purpose, but subject to the following;—

a) the court shall sit as often as necessary;

b) proceedings shall be held in camera;
c) proceedings shall be as informal as possible and by inquiry rather than by exposing the
child to adversarial procedures;
d) parents or guardians of the child shall be present whenever possible;
 e) the child shall have a right to legal representation; (f) the right to appeal shall be
explained to the child.

(2) Apart from members and officers of the court, only the following persons may at the
discretion of the court attend any sitting of a family and children court—

(a) parties to the case before the court, their advocates, witnesses and other persons
directly concerned in the case;
(b) parents or guardians of the child before the court;
(c) a probation and social welfare officer; and
(d) any other person whom the court authorises to be present.

Care or supervision order to be of benefit to child.

A family and children court shall not make a supervision order or a care order unless it considers
that doing so would be beneficial to the child.

Rules of court. The Rules Committee may make rules prescribing—

(a) the procedure to be followed in a family and children court and, in particular, as to the
recording of evidence and the manner of arriving at and recording of findings and orders;

(b) the manner in which a family and children court shall be constituted
b) Discuss the duties and functions of the probation and welfare officer.

Section 2 of the probation Act provides that; the probation officers shall be available for work
in the courts; duty officer shall attend daily to appear before judges or magistrates when called
upon to do so; they shall assist in every form of inquiry required by judges or magistrates for
sentence assessment.

Section 4 of the Probation Act provides that; Probation officers shall visit the home of the
probationer to gather information about their behavior, mode of life, and employment; the
supervising officer shall maintain close contact with the probationer, visiting them at least once a
month during the early part of the probation period.

Section 5 of the probation act provides that probation officers shall make inquiries about the
attendance and progress of school-age children from the head teacher.

Section 6 of the act states that Probation officers shall ensure that the probationer understands
the conditions of their probation and endeavor to ensure their observance.

Section 9 provides that probation officers shall carry a certificate of authority but shall not wear
any distinctive uniform or badge.

Section 10 about relevant legislation provides that the probation officers should familiarize
themselves with relevant legislation, particularly the Probation Act and its rules.

Section 13 provides that the probation officers shall report to the court as directed in the
probation order, they shall maintain records of the probationer's conduct, mode of life, and
progress.

Section 14 of the Probation act provides that proper records shall be kept for each probationer,
including the court's decision, reports, certificates of age (for juveniles), supervision records,
visitation records, case transfers, court directions, and correspondence related to the case.