My child’s father took off, now rejects DNA testing

Dear Vivian,

I was in a relationship where we were blessed with a child who is now 10 years old. I have tried to contact his father, who took off and refused to take responsibility. Through third parties, he said he can only take responsibility once he does a DNA test to confirm paternity. He has since changed his mind about the test. What should I do?

Nancy Magotsi, Kakamega

Dear Nancy,

The Children’s Act describes parental responsibility as all the duties, rights, powers, responsibilities and authority, which, by law, a parent has in relation to a child and the child’s property in a manner consistent with the evolving capacities of the child.

DNA testing is the most accurate – at 99.99 per cent. The use of DNA testing for paternity determines whether a man is or is not the biological father of a child. According to the Kenya Medical Research Institute, a standard paternity test involves testing the father, mother and child.

Upon determination of paternity, Article 53 of the Constitution then provides that every child has the right to parental care and protection, including equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.

In determining a matter like yours, the court must weigh the competing rights of the child and the person who is alleged to be the biological father. The right of the child to parental care takes precedence, particularly in light of the cardinal principle set out in Article 53(2) that in matters such as this, the paramount consideration is the best interest of the child.

Previously, the Kenyan courts, under similar facts, gave conditions to be satisfied before an order could be made to compel for DNA as follows; that the individual in question could be the father of the child; that the respondent’s refusal to submit to the DNA test has violated the child’s right to know his father; and that the respondent’s refusal to take a DNA test is unreasonable because it deprives the child of the possible enjoyment of the rights and benefits enshrined in the Children Act.

Justice Mumbi Ngugi (as she was then) decided as follows: “For the petitioner, it would be a minor inconvenience if he attends to DNA testing once, but for a child not to know its parents and benefit from their protection and care, the damage may linger for years to come. I choose to protect the baby as opposed to the petitioner in such circumstances.”

Vivian

The writer is an advocate of the High Court of Kenya, gender expert and award-winning civil society lawyer ([email protected])