A few weeks ago, the High Court was reported to have ordered a man to take care of a child who wasn’t biologically his. This court case was an appeal from an earlier ruling by the Children's Court. In the case, a man had met his wife when she was a single mom of one. He agreed to get married to her and assumed responsibility for the child. The two love birds were then blessed with their second born. Down the line, though, their marriage hit the rocks. The man’s wife strayed and had a third child with another man. When the man found out, they separated and eventually divorced. After separation, the woman took the man to the Children’s Court seeking to have him ordered to pay child support for all the three children. The court ruled in favour of the woman in a decision that was largely upheld by the High Court. This court has left many men spooked. Some men fear raising kids who aren’t biologically theirs on the assumption that they might be stuck with child support if things don’t work out. Others fear that they could be forced to raise children fathered behind their backs under the guise of assumed responsibility. But is there reason to worry? We sought legal clarity on these questions from two legal experts:
Harriet Onyiego, an Advocate of the High Court of Kenya, and a Member, Young Lawyers Committee, East Africa Law Society
Harriet Onyiego, an Advocate of the High Court of Kenya, and a Member, Young Lawyers Committee, East Africa Law Society. Photo | Pool
The child's best interests are of paramount importance in every matter concerning the child. This scenario falls under the doctrine of Loco Parentis. This doctrine stipulates that when an individual assumes parental rights or obligations without the formalities of a legal guardian or those of a legal adoption as is required by the law, then that person is deemed to have assumed parental responsibility. Article 53 of the Constitution of Kenya 2010 guarantees every child a right to parental care and protection which includes the responsibility of parents to take care of the child whether the parents are married or not. A child may be born prior to, during, or after marriage.
Section 24 of the Children’s Act notes the varied circumstances under which a child may be born. The section provides that where the parents were married at the time of the child’s birth, they will automatically acquire parental responsibility.
Even if a man ‘unknowingly’ assumes parental rights and responsibilities and has the child’s birth certificate carry his name as the father, within the meaning of Section 24(1) of the Children Act, it is presumed that he has taken up parental responsibilities the moment that child was born. He is therefore bound to bear parental responsibility towards the child as he would have as the biological father. If, for example, you find yourself in such a dilemma, having already taken up that responsibility by law, it is not open to you to abdicate the parental responsibilities just because the child biologically belongs to another man.
This is well covered within the provisions of section 24(5) of the Children’s Act which maintains that a person who has parental responsibility for a child at any time shall not cease to have that responsibility for the child. You may however, seek to rely on Section 24(4) of the Children’s Act that provides that more than one person may have parental responsibility for the same child at the same time. If the biological father of the child decides to take up responsibility, section 24 (8) (a) of the Children’s Act requires that the man who has parental responsibility for the child may not surrender or transfer any part of that responsibility to another (say the biological father) but may arrange for some or all of the responsibilities to be met by one or more persons acting on his behalf.
Caroline Maina, an Advocate of the High Court and the managing partner in charge of Corporate and Commercial practice at CMK Associates
Caroline Maina, an Advocate of the High Court and the managing partner in charge of Corporate and Commercial practice at CMK Associates. Photo | Pool
In all the jurisprudence regarding children, the best interest of the child is the one true yardstick. If you find yourself in the shoes of a ‘parent’ whose child is not biologically yours, you should gauge yourself against the same yardstick relating to the best interest of the child. This is what will ultimately be used to determine whether the obligations of being considered a ‘parent’ are upheld or not. Children have the right to parental care and protection. This obligates the child’s parents to share equal responsibility to provide for the child, whether they are married to each other or not.
The Children’s Act defines who a ‘parent’ is without confining the definition to shared DNA or name only. This means that one is considered a parent if they are the mother or father of a child or if the person is liable by law to maintain a child or is entitled to take custody of the child. However, like in the case of this man who has been obligated to take up parental responsibilities over his biological and non-biological children, the law recognises that there exist circumstances where a person can be held liable by law to maintain children who are not biologically theirs. Being the biological parent is not the only factor that makes one a ‘parent’. Under the Children’s Act, parental responsibility is defined as including all the duties, rights, powers, responsibilities, and authority that by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child. These includes the provision of basic and secondary needs of a child.
You can acquire parental responsibility where a child’s father and mother were not married to each other at the time of child’s birth but have subsequent to such birth cohabited for over 12 months, or where the father has acknowledged paternity of the child, or where the father has maintained the child whether or not there exists a parental responsibility agreement between the mother and father.
Where the mother and father had not married prior to the birth of the child, you may obtain a court order declaring your parental responsibility for the child through a petition to court or through a parental responsibility agreement. The challenge with today’s birth registry records is that you may find a child with two birth certificates; one with the name of the biological father and another with the father who stepped-up. If you wish to have a stepchild take up your surname, for purposes of continued parental responsibility and succession legitimation, you should pursue the legitimation process under the Legitimacy Act for the re-registration of the children’s birth certificates under the Births and Deaths Registration Act.
If you have a legal question on marriage or relationships, please send us an email at [email protected] Your questions shall be answered on this page.
