Do not be quick to rush to court for child support
Helplessness is the deepest motivation behind the best interest of the child principle.
Hi Eric,
I was okay not receiving child support from the father of my child. But given the harsh economic times, I have decided to pursue child support. The man has a job and is enjoying his salary while I struggle to raise our daughter. How do I sue him for child support? Can he be compelled by the court to provide for his child?
Hi
Nelson Mandela once said, "There can be no keener revelation of a society's soul than how it treats its children. This sums up what the law thinks and does for children. From the onset, the law considers all children to be vulnerable, weak, and at risk of experiencing every society's ills. The construction, process, and purpose of the law is, therefore, to directly or indirectly deflate, deflect, and defeat threats, violations, and abuses directed at and experienced by children.
The Kenyan Constitution, Article 53, Clause (2), creates legal empathy regarding children's welfare, rights, needs, and interests. It commands that every action, whether as an intervention or promotion, must be carried out in the best interest of the child.
In this context, the differences between you and your daughter's father should not be handled by the raw whims of nuptial antagonism but by mutual concern that affords her safety and optimism in the most realistic and achievable manner.
The law appreciates and is alive to the fact that children are vulnerable in every sense of being dependable to the adult community around them. Helplessness is the deepest motivation behind the best interest of the child principle. The First Schedule of the Children's Act breathes life into Section 8 and the Constitution's Article 53.
It provides 18 grounds to qualify the Child's best interest principle. However, the mentioned grounds are incomplete, as point 18 is open to any other factor that may directly or indirectly affect the Child's physical and psychological well-being.
Section 101 of the Children's Act states that where a person who does not have legal custody of a child is entrusted with their care and control, such a person is duty-bound to safeguard the interests and welfare of the Child. Its subsection (2) underscores that a person with no legal custody of the Child who has its actual custody is legally deemed to be in charge of the care of the Child and shall take all reasonable steps to safeguard the interests and welfare of the Child. In this sense, care includes requesting or demanding child support.
The child's best interest sometimes demands that we appeal to the humanity in people before subjecting them to stringent and unemotional legal instruments and processes such as the court of law. It is strategic, futuristic, and relations-driven, if not enhancing, first to explore the biological attachment between father and daughter. A direct conversation leading to developing a Parental Responsibility Agreement could be the first step toward creating an amiable environment where equal parenting should thrive, as directed in Article 53 Clause (1) Paragraph (e). The primary purpose of a parental responsibility agreement is for the couple to designate and agree on clear individual responsibilities towards the Child as stated in Section 33 of the Children's Act.
Should this approach and arrangement fail to yield results that speak to the Child's well-being and rights, one can invoke Article 22 Clause (1) of the Constitution, giving them the right to take legal action regarding the Bill of Rights. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened.
At this point, you may petition the court to commit the father of this Child to adhere to Section 31 of the Children's Act, which in sub-section (2) lays bare the duties of the parent, including the duty to maintain the Child and, in particular, to provide it with essential nutrition, shelter, clothing, medical care, including immunization, water, and sanitation facilities, primary education; and general guidance, social conduct, and moral values.
The court would often remind parents that child support is their duty and a child's right to inherent dignity and not favouritism dished out by willing couples. While listening to feuding couples on matters of Child support, the court's decision is mainly given based on several grounds: first is to establish the existence of a parental responsibility agreement between the parties and the performance of each parent as per the terms; second, assess the presence and ability of each parent to guide and provide for the Child based on their true financial status.
Third, consider all possible and reasonable needs of the Child, and where possible, seek their opinion without compromising personal relations and contact with both parents. Similarly, ascertain the quality of the home environment.
