KAMPALA INTERNATIONAL UNIVERSITY
SCHOOL OF LAW
COURSE : BACHELOR OF LAWS
COURSE UNIT : FAMILY LAW 11
COURSE CODE : LLB2201
YEAR : TWO
SEMESTER : TWO
SESSION : EVENING
LECTURER : COUNSEL AMINA WAHABU
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GROUP ONE MEMBERS
S/N NAME REG. NO SIGNATURE
1 KIGANDA MATIYA MUJUMBA 2023-08-22489
2 NABANDHA ZULAIKA 2023-08-16519
3 KIWEEWA PAUL RICKY 2023-08-22540
4 SEMPA GEORGE WILLIAM 2023-08-18267
5 SAMUEL KIDEGA 2023-08-17740
6 OKECH BABRA 2023-08-18453
7 NGANDA ISAIAH BIKOLWA 2023-08-16769
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INTRODUCTION
Who is a child
Rights of a child
The welfare principle.
Who is a child.
Article 257(1)(c) of Constitution of Republic of Uganda 1995 is to the effect that a child
means a person under the age of eighteen years.1
Section 2 of the children Ac Cap 62 defines a child to mean a person below the age of
eighteen years.
This therefore sets the agee of majority at 18 aligning with the global standards.
However under Article 34 (5) for purposes of Article 34(4) provides for the protection of
childern from social and economic exploitation consider a child to be aperson under the age
of sixteen years.
And persons below the age of of 18 years are considered legally to lack of full legal
capacity,to make binding decisions,such as entering into contracts or [Link] are entitled
to special protection under both domestic and international laws.
RIGHTS OF A CHILD.
Children have rights conferred to them by virtue of being human being. These are provided
for under Article 34 of the 1995 constitution of Uganda and Section 4 of the Children Act.
Rights provided under Article 34 of the consitution of republic of Uganda 1995.2
Right to know and be cared for by their parents or those entitled by law to bring them
[Link] is provided under Article 34(1) this right calls for parental responsibility towards
[Link] responsibility is defined under section 1 of the chidren’s Act to mean all
rights ,duties,powers and responsibilities and authority which by law the parent of a child has
in relation to the child.
Section 4(a) provides that every child shall have aright to live with his or her parent or
guardian
Article 18 of the United Nations Convention on the Rights of Children 1989 to which Uganda
is aparty imposes a duty on the state to use best efforts to ensure recognition of the priciple of
both parents have common responsibilities or the upbbringing and development of the chld.
Right to basic education which is the responsibility of the state and the parents of the
[Link] 30 of the constitution provides that all persons have a right to education. The
education Act 2008 establishes free and compulsory education for all children. Article 28 of
the United Nations Convention on the Rights of children obligates states to ensure access to
free and compulsory primary education for all [Link] 1997 the Government of uganda
introduced the universal primary Eductaion and the universal secondary education in 2007.
Right to non-deprivation by any person of medical treatment, education or any other
social or economic benefit by reason of religious or other beliefs. Provided under Article
34(3) and also Article 24 of the United Nations Convention on the Rights of children that
1
Constitution of Republic of Uganda 1995
2
children Ac Cap 62
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directs to recognise children’s right to the highest attainable standard of [Link] ensure
child survival measures have been taken to improve the quality of and accessibility to health
care services health units been established like Health Centre 4 at the District level, Health
Centre 2 at the parish level and maintenance of immunization coverage against the
immunizable diseases like polio, tetanus among others.
Right to be protected from social or economic exploitation and not to be employed in or
required to perform work that is likely to be hazardous or to interfere with their education or
to be harmful to their health or physical, mental, spiritual, moral or social
[Link] under Article 34(4) .section 1 of the children Act defines child
expliotation to mean employment of achild in activities from which other people derive a
benefit ,whether financial ,sexual ,political and include activities such child trafficking ,child
prostitution ,child pornography and involvment of children in armed conflict.
The Employment Act Cap 226 prohibits employment of children under the age of 12.
Section 4 of the prevention of Trafficking in Persons Act Cap 131 3 criminalises
trafficking in children. The penal code Cap 128 criminalizes sexual exploitation of
children.4
Other rights are stipulated under section 4 of the children Act and they include the
following;
Right to live with his or her parents or [Link] under section 4(a) of the
children [Link] Article 31 (5) of the constitution is to the effect 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.
Right to express his or her view, belief or opinion on any matter that affects his or her
well-being. provided under section 4(b) children in schools have opportunities to express
their views through songs, drama, debate clubs and storytelling. The Government News
Paper New Vision runs a monthly pullout entitled ‘Young Talk’ in which children discuss
issues that are of interest and relevance to them.
Right to access any information to which a parent, guardian or other person in
authority deems critical to the well-being of the child. provided under section 4(c) ,In
Uganda schools have debating clubs and children rights clubs which provides children with
an opportunity to access information and to discuss issues of interest to them.
Right to be registered after birth. provided under section 4(d) and Article 18 provides for
registration of every birth and Section 28 of the Registration of persons Act Cap 332
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provides for compulsory registration of births.
Right to a name and nationality. The issue of name and identity, the constitution specifies
who a citizen of Uganda is, either by birth or registration. Article 10 provides for citizenship
by birth and Article 12 provides for citizenship by registration.
Right to inherit property. provided under section 4(f)
3
Prevention of Trafficking in Persons Act Cap 332
4
The penal code Act Cap 128
5
Registartion of persons Act Cap 332
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Right to safety, privacy, information and access to basic social services. provided under
section 4(g)
Right to leisure which is morally not harmful and the right to participate in sports and
positive cultural and artistic activities.section4(h).
Right to use any social amenities or other resources available in any situation of armed
conflict or natural or man-made disaster.
Right to be treated without discrimination of any kind irrespective of his or her race, colour,
religion, belief, age, family status, culture, language, ethnicity, nationality, social origin,
citizenship, gender, disability, political or social opinion, or property.
Right to effective legal aid including representation in all civil, criminal and administrative
proceedings.
Right to exercise all the rights set out in the United Nations Convention on the rights of the
child and the African Charter on the Rights and welfare of the child.
THE WELFARE PRINCIPLE.
Is a legal doctrine that prioritizes the best interests of the child in any proceeding or action
concerning achild. This principle ensures that the child’s physical, emotional and
educational needs and also their over all well-being takes precedence over other
considerations.
In J V C (1970) AC 668 Court held that in any matter relating to a child, the child’s
welfare is of paramount consideration.
In Walker V Walker and Harrison (1981) NZ, Hardly Boys J defined welfare to mean
an encompassing word which includes material welfare both in the sense of an adequacy
of resources to provide a pleasant home and a comfortable standard of living and in a
sense of adequacy of care to ensure that good health and that due personal pride are
maintained.
Althugh material considerations have their play, they are secondary matters and more
importantly are stability, security, loving, understanding care warm and compassionate
relationships are essential for the full development of the childs own character and
personality.
In Uganda the welfare princilpe has been considred in a number of cases. In the case of
Bishop Dvid Kiganda v Hadija Nasejje Kiganda HCS Divorce Cause No. 42 of 2011
Juddge B Kainamura observed theta the paramount principle in cases of custody is
the welfare of the child. Court found that the child had been in custody of the
petitioner since 2006 when the couple seperated. The petitionervwas allowed to
retain custody of the child.
Also in the case of Re-Mcgrath, lindley LJ(1893) made the first attempt to define
Welfare were he stated that welfare is not be measured by money alone nor by physical
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comfort only ,it must be taken in a wider sense to inclue moral and religious welfare as
well as physical wel-being.
This is codified under section 3 (1) of the children Act which is to the effect that the
welfare of the child shall be of paramount consideration whenever the state, a court, a
tribunal, a local authority or any person determines any question in respect to the
upbringing of a child, the administration of the property of a child, or the application of
any income arising from that administration.
In KamugishaTheopy v Kakitoka Pascal (1996) KALR 116, Court emphasised that in
children’s cases the interest of the child of paramount consideration.
In the case of Re B (1988) 1
AC 199, the House of Lords affirmed on appeal a lower court decision authorizing
sterilization of a mentally retarded and epileptic 17-year-old girl. Court held that
sterilization was for her welfare and in her best interests because she had no
understanding of the connection between sexual intercourse and pregnancy, and because
she was deemed unable to cope with birth or raise a child. There was evidence that she
could not be placed on contraceptive drugs because she lacked the mental capacity to
cooperate and because these drugs could react with the medication administered to
control her mental instability and epilepsy.
Section 3(3) of the children Act is to the effect that in determining what in the best
interest of the child, the court shall have regard to the following;
a) The ascertainable wishes and feelings of the child concerned with due regard to his or
her age and understanding. In adoption matters the welfare principle is of paramount
consideration. In the case of Re George Kagulu, Rebecca & others, the appellant
was a paternal uncle of the infants and one of them being Rebecca who was a girl,
court emphasised that this matter fell under special circumstances. Court stated that
Rebecca being a girl and the uncle a man, the law intended on stopping a male from
adopting a girl who he would later seduce or marry but Rebecca was a daughter of the
applicant’s brother and there was nothing that could stop court from granting the
application. court held that granting an adoption order to the children’s uncle served
the paramount interest of the child as the uncle shared a strong bond and had love and
affection for the children. In Nameizo Ayiya v SabinaAyiiya Divorce Cause No. 8
of 1973court emphasised that it is not necessary that one who is rich will be in better
position to look after the children but the psychological attitude towards the children
and the living and warm atmosphere in a home means more in the upbringing of a
child.
b) The physical, emotional and educational needs of the child. Under emotional needs
the presumption leans in favour of the emotional needs to stay with both parents.
However, in Teopista Kayongo V Richard Sekiziyivu (1979) court recognised that
there is a strong notion that young children need to stay with their mothers however,
court emphasised that there is no rule of law to that effect. Also in the case of
Gillicks v West Norfolk &Wisbech Area Health Authority (1986) AC 112, Court
held that the child must understand the advice being given and what is involved.
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c) The likely effects of any change in the circumstances of the child.
d) The child’s sex, age, background and any other circumstances relevant in the matter.
In guardianship/custody applications, court will be more inclined to grant the
guardianship or custody to applicants of the same sex as the child.
e) Any harm that the child has suffered or is at the risk of suffering.
f) Where relevant, the capacity of the parents of the child, guardian or any other person
involved in the care of the child, and in meeting the needs of the child.
In conclusion, the welfare principle remains central to family law in Ugandas’ legal frame
work, guided by the Constitutional mandates, statutory provisions and judicial precedents
the commitment by the courts in Uganda in the application of the welfare principle in
adjudication of matters relating to children is affirmed in anumber of decided cases as
mentioned above.
REFERENCES.
1. The 1995 Constitution of Uganda.
2. The Children Act Cap 62
3. Registration of persons Act Cap332
4. prevention of Trafficking in Persons Act Cap 131
5. United Nations Convention on the Rights of children
6. African Charter on the Rights and welfare of the child.
7. Bishop David Kiganda v HadijaNasejjeKiganda HC Divorce Cause No.42 0f 2011
8. Rwabuhemba Tim Musinguzisupremecourt civil Appeal No. 142 of 2009
9. KamugishaTheopy v Kakitoka Pascal (1996) KALR 116
10. Walker V Walker and Harrison (1981) NZ
11. NameizoAyiya v Sabina Ayiiya Divorce Cause No. 8 of 1973
12. Gillicks v West Norfolk &Wisbech Area Health Authority (1986) AC 112,
13. Re George Kagulu, Rebecca & others
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END.
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