Last edited: October 2005
Summary and Analysis
A formal child protective system has been developing in Ghana since 1992. A combination of forces, including Ghana’s democratic process, the United Nations Convention on the Rights of the Child, the Concluding Observations of the UN Committee on the Rights of the Child in the Ghana Report in 1997, and signing the African Charter on the Rights and Welfare of the Child in 1997 prompted the development of this system, which has culminated in the enactment of the Children’s Act 1998. This formal system is comprised of various institutions, including family tribunal courts, the Ministry of Women and Children’s Affairs, Child Panel, Department of Social Welfare, foster care system, SOS villages, children’s homes and orphanages, socio-legal centre of the Defence for Children International (DCI), and specialized probation officers and social workers.
Though Ghana signed the African Charter on the Rights and Welfare of the Child in 1997, the Charter was not ratified by the Parliament until June of 2005. According to a provision in the Convention on the Rights of the Child (CRC), any legislation giving children more rights shall take precedence, so Article 4 and 7 of the Charter, which, though similar, are slightly more far-reaching than Article 12, supersede Article 12 of the CRC.
Ghana’s child protective system is governed by the 1992 Ghana Constitution,[2] the Criminal Code, and the Children’s Act 1998. The Children’s Act is a comprehensive law for children, which consolidated and revised existing law and filled in gaps. Among other things, it sets out the rights of the child and parental duties and provides for the care and protection of children. In addition to the Constitution and statutes, case law, court rules, and ethical rules inform the role of counsel in the representation of the child in the law court and advocacy on behalf of the child.
Section 11 of the Children’s Act most clearly reflects the principles expressed in Article 12 of the Convention on the Rights of the Child and Articles 4 and 7 of the African Charter on the Rights and Welfare of the Child. It directly echoes the language used in the Convention, stating, “No person shall deprive a child capable of forming views the right to express an opinion, to be listened to and to participate in decisions which affect his well-being, the opinion of the child being given due weight in accordance with the age and maturity of the child.”[3]
When the Department of Social Welfare receives a report of child abuse or endangerment and it is determined that the child is not in immediate danger, the matter is referred to a Child Panel, a non-judicial board charged with mediating matters concerning children. Section 30 of the Children’s Act grants children the right to participate in decisions made by a Child Panel: “A Child Panel shall permit a child to express his opinion and participate in any decision which affects the child’s well being commensurate with the level of understanding of the child concerned.”[4]
If the investigation by the Department shows that the child has been abused or is in immediate need of care and protection, the Children’s Act authorizes the removal of the child to a place of safety. When a child is removed, the child must be brought before a Family Tribunal within seven days. The Family Tribunal can then make a care order to determine the placement of the child or a supervision order setting out the terms under which a child may remain in the custody of his parent(s), guardian(s), or relative(s). Section 38 sets out the rights of the child at a Family Tribunal. These include “a right to legal representation,” “a right to give an account and express an opinion at a Family Tribunal,” and the right to appeal.[5] Section 25 allows a child to apply for the discharge of a care or supervision order.
Although the Children’s Act specifically entitles children to legal representation in front of a Family Tribunal in Section 38, in reality, not all children actually receive it. Legal representation for children is provided only at the request of the child, the child’s parents or relatives, or persons interested in the matter, and, in Ghana, compensation for counsel must be paid by the parties, rather than the state. Still, though they may not receive legal representation, children in child protective proceedings are usually represented by probation officers of the Department of Social Welfare, which has among its functions the protection of children. The socio-legal centre by DCI-Ghana also provides child protection by offering counseling, mediation, referrals, and legal aid.
Sources of Law (In Order of Authority)
International Law
Convention on the Rights of the Child, [6] ratified Feb. 5, 1990.
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Regional Agreements
African Charter on the Rights and Welfare of the Child,[7] signed Aug. 18, 1997, ratified Jun 10, 2005.
Article 4. Best Interests of the Child
1. In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.
2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.
Article 7: Freedom of Expression
Every child who is capable of communicating his or her own views shall be assured the rights to express his opinions freely in all matters and to disseminate his opinions subject to such restrictions as are prescribed by laws.
Statutes
Children’s Act of 1998[8]
Section 11. Right of opinion.
No person shall deprive a child capable of forming views the right to express an opinion, to be listened to and to participate in decisions which affect his well-being, the opinion of the child being given due weight in accordance with the age and maturity of the child.
Section 30. Meetings of Child Panel.
(1) A Child Panel shall meet as often as may be necessary except that a Child Panel shall meet at least once in every three months.
(2) The quorum at any meeting of a Child Panel shall be four and in the absence of the Chairman shall be chaired by a member elected by the members present from their number.
(3) Any agreement made between the parties shall be recorded by the secretary to the Child Panel.
(4) Any person with a significant interest in a matter before a Child Panel may be invited to attend and participate in its deliberations.
(5) A Child Panel shall permit a child to express his opinion and participate in any decision which affects the child’s well being commensurate with the level of understanding of the child concerned.
(6) Except as otherwise provided in this Sub-Part a Child Panel shall regulate the procedure at its meetings.
Section 38. Rights of the child at Family Tribunal.
(1) A child shall have a right to legal representation at a Family Tribunal.
(2) A child shall have a right to give an account and express an opinion at a Family Tribunal.
(3) A child’s right to privacy shall be respected throughout the proceedings at a Family Tribunal.
(4) The right of appeal shall be explained to the child, guardian and parents.
Local Contact Information
George Oppong Appiagyei Ampong
Defence for Children International, Ghana
P.O. Box FN 812
Kumasi, Ghana
TEL: 233 51 29187
CELL: 233 244 811446
FAX: 233 51 23622
EMAIL: dcighana@yahoo.com
Additional Resources and Links
Commission on Human Rights and Administrative Justice: http://www.chrajghana.org/index.jsp
Legal Resource Centre – Ghana: http://www.lrc-ghana.org/
Endnotes
[1] This page is also available as a .pdf Document, and Word Document.
[2] Ghana Const. (Constitution of the Republic of Ghana, 1992) § 28, available at http://www.parliament.gh/.
[3] Children’s Act, No. 560, § 11 (1998), available at http://www.ilo.org/dyn/natlex, and also here, and also as .pdf Document, and also as Word Document.
[4] Children’s Act, § 30.
[5] Children’s Act, § 38.
[6] United Nations Convention on the Rights of the Child art. 12, Dec. 12, 1989, UN General Assembly Document A/RES/44/25, available at http://www.ohchr.org/english/law/crc.htm.
[7] African Charter on the Rights and Welfare of the Child, opened for signature July 11, 1990, OAU Doc. CAB/LEG/24.9/49, available at http://www.africa-union.org/.
[8] Children’s Act, § 11, 30, 38.