Why proposed changes to children’s law is timely

We have been reading the media about the Children’s Act amendment Bill that appears to be spearheaded by Homa Bay Town Peter Kaluma.

The proposed amendments are important to all of us whether we are men, women and children. It is important to note that some of the proposed amendments were already captured in the Constitution but that Kaluma’s Bill localises those provisions for the children by having them in the Children’s Act.

Some of those constitutional standards are contained in Article 53 of the Constitution that provides as follows;

· • That  every child has a right to parental care and protection which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.

· · • That a child’s best interests are of paramount importance in every matter concerning the child.

The Constitution equalises all children whether born within a marriage or not.

On the other hand the Children’s Act creates different standards for different children;

· For children born within a marriage or born of parents who marry after the child’s birth,  it says that  they are entitled to care from both parents and that no parent has a superior right over the other.

· For children born outside of a marriage, it says that the mother has the parental responsibility at the first instance  and that the father shall subsequently acquire parental responsibility for the child  by  acknowledging  or maintaining the child, applying to court or agreeing with the mother of the child. As a result, many children born of parents who are not married and who do not subsequently marry, suffered discrimination for many years due to the lack of guarantee of maintenance from their fathers.

The Constitution created one child; a person below 18 and assured them that they have a a right to be cared for by both parents.

It is that position that the Bill seeks to have localised in the Children’s Act, among others.

It is important to note that although both parents have equal rights and responsibility over the child, the court has power to consider each case in its special circumstances and determine what is in the nest interests of the child; it could award custody to the mother or to the father depending on the circumstances. It could order the parents to maintain the child equally or ask one parent to pay more depending on the circumstances.

It is interesting to think how far we have come in the last 15 years; we have many more men participating directly in their children’s lives even when they are not married to the mother and even when such children are infants.

We also have many more cases by men seeking court orders to have access and custody of their children.

The Constitutional provisions were not ahead of time but reflective of what is already happening; mums and dads participating in the lives of the children, even when separated or divorced.