MPs have backed changes to the child welfare law that will make it compulsory for parents, married or not, to foot the upkeep costs of children equally
By Ivy Maloy
The National Assembly committee on Labor and Social Welfare approved the Children (Amendment) Bill, 2020, which places equal parental responsibility for children, including those born out of wedlock or whose parents have divorced, on both the mother and the father.
The Bill seeks to amend Section 24 of the Children Act of 2001 and align it to the Constitution, ending a scenario that has seen child upkeep disputes left to the court’s interpretation.
The Act currently places the primary parental responsibility for the child on mothers in instances where they are unmarried. The father can only take parental responsibility for the child through a court order or agreement with the mother.
“The Bill seeks to vest equal responsibility for parental care and protection of a child in both the mother and father whether they are married to each other or not,” the committee said in its report of the Bill sponsored by Homa Bay Town MP George Kaluma.
Article 53(1)(e) of the Constitution states that: “Every parent has the right to protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not”
The proposed legal changes will also grant both parents equal rights, a move aimed at reducing child custody disputes.
“Nor the father nor the mother shall have a superior right or claim against the other in the exercise of such parental responsibility,” the Bill says.
Child upkeep disputes have been on the surge, with the Judiciary saying that 1,745 cases were filed in 2019, up from 1,572 filed the previous year.
Nairobi County has in the eight months from January recorded 1,022 cases on children upkeep and maintenance, highlighting an increasingly difficult environment for children.
Dr Ruth Aura-Odhiambo, a senior lecturer and an advocate of the High Court, said in deciding children matters, courts have to put the best interest of the child first. “The child is innocent and when one brings forth a child, one has to take full responsibility,” she said.
“The Constitution, international charters, which Kenya subscribes to as well as the Children’s Act stipulate the child’s best interests is of paramount importance in all matters concerning the care, protection, and well-being of a child,” she told the Business Daily yesterday.
The committee’s report awaits approval of the House. Parliament has a history of backing recommendations from House committees.
The lawmakers in their review of the Bill, drew examples from South Africa, the United Kingdom, and the United States of America, on the extent of childcare placed on parents who aren’t living as a married couple.
The South African law, for example, says that a mother, whether married or unmarried, has full rights and responsibilities of the child. The biological father gets full parental rights only if he is living with the mother or consents to be identified as the child’s father.
The backing of the Bill comes at a time courts have given rulings that equally apportion the child’s upkeep on both parents.
On June 18, Justice Florence Muchemi ruled that a child ought to be maintained by both parents based on their financial capabilities.
Justice Muchemi gave the verdict in a case where a woman had sued her divorced husband for the upkeep of the child estimated at Sh32,000 per month.
The court rejected her case saying that she had the financial means to take care of herself and the child, taking away the need to compel her divorced husband to contribute to the upkeep.
The decision, widely seen as opening the door for men to pursue women for child maintenance, bucks a trend where fathers have been compelled to pay for the upkeep of their children.
In June 2019, High Court judge Joel Ngugi ruled that fathers can be allowed sole custody of children, ending a long-held view that only women are primary caregivers.
Justice Ngugi said child custody, whether actual or legal, should not be given to one parent or person alone. He said the Children’s Act envisages that custody should either be shared or joint.
He ruled that both parents have a right to participate in the major decisions concerning the children, including but not limited to the educational, religious, and medical.
The parliamentary committee also rejected a push to withdraw some of the parental rights in cases where one of the parents neglects the child for six or more months. Kenya Association of the Child, Youth Care Workers and Make Me Smile Kenya — lobbies for children’s welfare — had petitioned lawmakers to insert the clause in further amendments to the Bill.