A legal perspective: Parental responsibility and child maintenance.

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A lady and a man on the inter webs have been dating for a couple of years. Within this period  of their love relationship, the couple sired 2 sons but later went separate ways. Later, the man allegedly kicked out the woman together with his children out of a house said to belong to the man’s mother. The lady has come out claiming that the man has abdicated his parental responsibility towards their children.

This presents a case study for our discussions on the legal recourse on parties in regards  to parental responsibility. We shall try and answer the following questions: What are the rights of the children? What are the duties of the various parties where they are not married? What does one do if one party abdicates their duty as a parent? Do the children have a right to privacy from being exposed to the members of the inter webs?

First and foremost one needs to understand what parental responsibility entails. The Children Act of 2012 under Section 23(1) defines parental responsibility as ‘‘all duties, rights and responsibilities and authority which by law a parent of a child has in relation to the child and child’s property.’’ The subject of the duties described as per section 23(2) of the same Act include providing adequate diet, shelter, clothing, medical care, education and guidance.

Determination of the person whom parental responsibility is placed upon.

Section 24(3) of the Children Act stipulates that ‘‘where the parents were not married at the time of the child’s birth and have not married after the child’s birth, the mother shall have parental responsibility at first instance, the father can acquire parental responsibility thereafter through an agreement’’ (parental responsibility agreement) as stated under section 25. However, if the parents were not married but have subsequently after the birth of the child cohabited for a period of twelve months, or the father has acknowledged paternity or he has maintained the child he shall be said to have acquired parental responsibility despite the lack of a parental responsibility agreement being made by the father and mother of the child.

The court’s opinion in the case of ZAK and Another v MA and Another (2013) was that parental responsibility in the Children Act should be read as being imposed on both biological parents whether or not they were married at the time of birth of the child.

The 2010 Constitution of Kenya under article 53(1)(e) recognizes the right of every child to parental care and protection which is inclusive of equal responsibility of the mother and father to provide for the child, whether they are married or not. Moreover, the Children Act provides for the right to parental care for the child under section 6(1) stating that ‘‘every child has the right to live and be cared for by his parents.’’ The Act also provides for the right to healthcare and education under section 7 and 9.

Exposure of the children in the media

With regards the exposure of children in the media, the Children Act under section 19 stipulates that ‘‘every child shall have the right to privacy subject to parental guidance.’’ Section 20  goes on to state that where any person infringes on any rights of the child, he/she shall be liable to a term of imprisonment for a period not exceeding twelve months or a fine not exceeding Fifty thousand Kenya shillings or both. In international law, the Convention on the Rights of the Child takes cognizance of the right of privacy of the child not to be interfered with.

In view of the above, the right to privacy is only subject to the parents approval and thereof in our case, both parents seemed to have waived that right when they started filming their children. The privacy would apply against third parties and therefore the need to always seek consent to film children when one is not their parent.

Maintenance of children.

The Act state that where the parents were not married at the time of birth of the child and did not marry after and the father has acquired parental responsibility, it shall be the joint responsibility of both the mother and father to maintain that child. A parent, guardian or custodian may apply to court to compel (maintenance order) to be made in relation to maintenance of that child. The parties in our case should therefore seek an audience with the court on their claim for maintenance and access.

If a dispute arises between the guardians, they can make an application to court for relevant orders as per section 108 of the Act. The orders the court can make are captured under section 114 of the Act. In this particular scenario the relevant orders are the access orders for the parents of the child. Access orders obligate the parent with whom the child resides, to allow the other parent to visit or have contact with the child. It is also important to note that according to section 83(2) of the Act, the parent who has not been granted custody has all other rights in relation to the child with the exception of the right to possession.

The parents do not have to go to court in the first instance as the Act provides that the parties can prepare a parental responsibility agreement that can be used to guide the parents on how to raise the children. An Advocate of the High Court of Kenya is best suited to guide parties in coming up with the Parental Responsibility Agreement. This will not only save the parties time and cost but help in avoiding the adversary system that are courts. The relationship between the parents is also maintained as the parental agreements are flexible and hence present a more amicable solutions.

What the courts will consider.

 Article 53(2) of the Constitution of Kenya and section 4(2) of the Children Act stipulate that the best interest of the child shall be the primary consideration. This is reiterated by Article 3 of the United Convention on the Rights of the Child.  Best Interest is defined as the consideration of economic, social and political interests of a child when making laws, policies and decisions which affect the child either directly or indirectly. The court focuses on what best suits the child in order to foster the child’s happiness, security, mental health and emotional development.

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