FIDA, AG fight over responsibility of fathers to children born out of wedlock
SEE ALSO :Traders to pay more in new county taxesThe woman told the court she cohabited with the father of her children for 10 years and had two children with him. But his name was missing from their birth certificates. Their contention raised by lawyer Onyango Owino is that the law should allow a woman who is living with a man to include his name on the birth certificates of children that they bear together, even though he does not marry her, and that he should assume instant responsibility. “Children don't choose to be born out of wedlock or who their parents will be,” the court heard. “An unmarried mother has no way of requiring the father to take on parental responsibility unless he volunteers to do so. She may merely apply to the court to order the father to make financial provisions, which is at the discretion of the children's court,” the lawyer argued. Violate rights
SEE ALSO : How much is a business worth?At the centre of this case are six sections of the Children Act. The two argue these sections violate the rights of children born out of wedlock and their mothers. The sections are 2, 24, 26, 27, 94, 102 and 158. Section 2 categorises a runaway father as "a relative" of the child. Section 24 on the other hand deals with how parental responsibility is acquired. Sub-section Six of the same section allows a person to bear responsibility for a child born out of wedlock alone. Sub-section Eight on the other hand dictates that a person can surrender some or all responsibilities to the other partner.
SEE ALSO :Miller sues State over seized sugarIt provides that a magistrate will have to consider the mother’s and father’s financial ability, the child financial needs, the circumstances of any other siblings, the customs or religion of both parties and the child among other things. NSA and Fida argue that the Children Act creates an optional paternity scheme. “We find ourselves in situations where fathers of children born out of wedlock opt out of paternity by avoiding a legal relationship with their children and remaining free from any duty to support them. The discrimination is endemic in our country,” they add. The woman relied on another suit in which the High Court made it mandatory to register a man’s name on the birth certificate of a child born out of wedlock. In that case involving LNW against Attorney General Githu Muigai (below) and the Registrar of Births, it was settled that a child does not belong to a woman alone. The Standard has learnt that although the court gave timelines in which the AG should push for changes of the affected sections, nothing has been done yet. In the Kakamega case, the AG argues that Section 12 is meant to cure mischief where malicious women seek financial gain from men through the children, even those who have no blood relations. “The mischief intended to be prevented by Section 12 is to avoid a scenario where malicious mothers, for financial gains or moral reasons, seek to have their children have statutory recognition from fathers even though they may not be the offspring,” the AG argued.