8. Parent and child

Under the general law a child is legitimate if born of a valid, or a voidable, marriage, or if born at a time when the spouses were living together and the husband is not proved to have been elsewhere. The presumption of legitimacy is strong. It is rebutted by evidence that shows, on the balance required in such a case, that the husband could not have been the father. Non-access, impotence, and the use of blood or other scientific evidence are the ordinary ways of rebutting it. A declaration of legitimacy can be sought so that the status is not left to be fought over at every inheritance.

Conflict of laws uses the personal law of each parent at the date of the child's birth, and the law of the marriage. A child legitimate by the customary law of a valid customary marriage is legitimate. Bamgbose v Daniel holds that a statute which speaks of children is not confined to children of a monogamous marriage. Children of a valid polygamous marriage are children. What a Christian marriage does not do, despite Cole v Cole, is to fix the personal law of the offspring for every purpose for the rest of their lives. They may, when they are of age, choose their own form of marriage.

There is no general statute of legitimation by subsequent marriage in the received general law of the kind the English Act of 1926 created, and that English Act is outside the reception date. Customary law has its own modes of legitimation, which differ by group, and which Smart treats as real. Acknowledgement of paternity, in the sense used in some West African systems, should not be assumed to be a Sierra Leone statute. An illegitimate child is not without rights. The mother may seek an affiliation order for maintenance. The Devolution of Estates Act 2007 defines "child" to include a child born while the deceased was unmarried, if the deceased recognised the child, and a child born during a marriage whom the deceased and the spouse recognised. Recognition has become a succession right, even where it is not legitimation.

Custody is the right to the care and control of the child, and to decide where the child lives. At common law the father of a legitimate child was preferred. That is not the modern rule applied in Sierra Leone. Anoff v Fofanah accepts that the welfare of the child is paramount, and that it is not the only word in the statute or the case. Dobbs J said the mother's wishes prevail against the father's if, having regard to those wishes, the child's welfare is not impaired. No parent has an absolute right. The Child Rights Act 2007 makes the best interests of the child the primary consideration in a matter concerning the child. Part VI of that Act deals with parentage, custody and maintenance, and it establishes a family process for those questions. An illegitimate child's custody was, at common law, with the mother. The welfare principle applies to that child as well.

Maintenance of a legitimate child follows the parent's duty of support, and it can be included in an order under the Married Women's Maintenance Act and in an order ancillary to a decree. Maintenance of an illegitimate child is by affiliation proceedings against the putative father. The old ceilings in the Bastardy Acts are of their time. A court today, applying the Child Rights Act, looks at the child's needs and the parent's means.

Guardianship is the office of the person who has parental responsibility when the parents cannot, or when a court appoints someone else. The High Court has the jurisdiction over infants and their estates that the old Supreme Court had. A Local Court deals with custody and guardianship arising out of a customary marriage, as an incident of that marriage, but Smart did not think it could try a question of the civil status of legitimacy as such.

The age of marriage is no longer a customary question and no longer a question of personal law. It is eighteen, for every kind of marriage. Forcing a child into a betrothal, a dowry transaction, or a marriage is forbidden. A person who marries a child commits an offence and is liable to imprisonment for not less than fifteen years, or to a fine, or to both. Parents and guardians who consent, and persons who conduct the ceremony, are within the Act. The marriage itself, if contracted after the Act, is void.

Offences against children sit beside the family rules. Wilful neglect of a child is a crime under the Prevention of Cruelty to Children Act. The Child Rights Act repealed the Corporal Punishment Act. A parent's power to correct a child is not a power to injure the child, and it is not a defence to cruelty.