Child custody: Court rules minors must have a say after divorce

Court rules children must be heard in custody battles. [iStockphoto]

Whenever marriages hit the rocks, and the once beds of roses become sour, the children end up being pawns in the long power play to either settle scores or payback.

However, three Court of Appeal Judges, Joel Ngugi, Francis Tuiyott and Patrick Kiage, in a landmark judgment, have ruled that this should not be the case, as although parents have a right to take care of the minors, their voices (kids) and rights cannot be hushed or wished away.

The three judges, in separate judgments, observed that disputes, especially those seeking to have a child relocated from one country to another, have no clear-cut framework or laws to follow.

Nevertheless, they pointed out that courts must have in mind that the child should be central, which includes practical realities of such a proposal and the benefits to a child if he or she relocates and not about parental muscles.

“It is important to reiterate that parental rights and freedoms are relevant in children matters to the extent that they bear upon the child’s welfare and form part of the constitutional setting within which best interests are determined. It is for that reason that I have articulated the Kenyan relocation framework above: to ensure that future relocation disputes are decided through structured reasoning that is transparent, child-centred, and alive to caregiving realities,” said Justice Ngugi.

In his judgment, the judge stated that first, courts ought to factor in a child’s welfare and not the status of either parent to give preference on who between the father or minor should take precedence.

At the same time, he ruled that a parent who wants to take a minor out of the country, he or she must give a clear and coherent plan, including his or her immigration status, and legality of residence and work, proposed accommodation, proposed schooling, healthcare arrangements, and realistic timelines.

The other issue, he said, was to ensure that either parent is simply pursuing the relocation with a clean heart, and not vengeance, in addition to what a child will benefit from if he or she leaves the country.

“Kenyan jurisprudence has consistently affirmed that the best interests of the child is a holistic and contextual constitutional standard, requiring courts to evaluate the child’s welfare in the totality of their lived experience rather than through isolated or fragmentary advantages,” he added.

 The other issue to consider, the judge said, should be ways of ensuring that the minor will not cut links with the parent left behind, adding that judges and magistrates should also factor in biological realities, including caregiving.

“Where one parent is the primary caregiver, the court must evaluate, with evidence, how refusal or grant of relocation would affect that caregiver’s wellbeing, autonomy, and practical capacity to parent, and how those effects, in turn, shape the child’s welfare,” observed Prof Ngugi, adding that there is a precedent that the child’s life in intertwined to the primary care giver.

The last issue the judge raised was that courts ought to also balance the rights of a child with parental rights.

He said that the High Court was right in dismissing a case filed by a parent codenamed JKP, who wanted to relocate with her children to the United Kingdom, as she could not explain who would take care of the children while she was at work.

JKP had sued her husband named KSC, after he opposed the relocation, saying that the children had a life in Kenya, having been born and raised there.

While concurring with Justice Ngugi, Justice Kiage said that the minor’s wishes cannot be hushed or taken away in such a case.

He asserted that in the case, the minors painted their father as a sweet man, who was in their daily lives.

According to him, a child’s best interests come first, while those of parents come second.

“A relocation decision should thus contain a consideration of the respective interests of the parents, but these must be subordinate to the interests of the children, which are paramount. After all, children are neither chattels of nor appendages to the parents… Thus, when considering a relocation application such as was made by the appellant herein, the foremost consideration is not, and cannot be, the relocating parent’s legitimate interests in better job prospects or professional growth or overall happiness and convenience,” he said.

He said that although he felt sympathy for the mother, he affirmed Justice Eric Ogola’s judgment that they should remain in Kenya.

Justice Tuiyott also agreed with Justice Ngugi. He said that parental responsibility cases are not matches or winners and losers.

Instead, he said that bickering families should first be taken through alternative dispute resolution mechanisms such as mediation to ensure that the final decision is amicable and unharmful to the already broken pieces.

“A solution that safeguards fairness, grants dignity to parties, aligns with their cultural and customary norms and yet places the welfare of the children at its core can be realised through the Alternative Justice System (AJS). I would hope that going forward, the difficulties that this family may find itself now can be somewhat unburdened and made lighter through the mechanism,” he ruled.