Intrigues of decade long child custody war fought in UK and in Kenya

The High Court has declined to order a minor born in the UK and living in Kenya to be reunited with his father, in a decade-long child custody fight.

While dismissing a case filed by a UK national named as SAJ, Justice William Musyoka found that it would be against the 12-year-old boy’s interest to leave his mother, named as AOG.

Justice Musyoka observed that SAJ was pursuing his own interest because a custody case filed in Kenya had not been concluded.

Estranged wife

“It is clear that almost 10 years have elapsed since the first respondent ‘abducted’ the child as alleged. It is more probable than not that the child is now settled in his new environment and an order for his return would only jeopardise his welfare and benefit the petitioner.

“Since there are pending proceedings in the children’s court, it is practical to await the determination on which of the parties will be granted custody,” ruled the judge.

The boy, named as ZAJ, has been at the centre of a battle between his parents ever since he left the UK on November 30, 2007 as a two-year-old.

The Attorney General was also dragged into the matter after a UK court ordered the boy’s repatriation until a custody case filed by SAJ was heard and determined.

But SAJ’s estranged wife moved to the Children’s Court in Nairobi and obtained custody orders that ensured her son would not leave Kenya.

SAJ’s argument before Justice Musyoka was that AOG abducted his son on the pretence that they were coming to Kenya for a holiday.

He argued that it was only the UK court that had the right to determine which parent had the right to the custody and care of ZAJ.

Justice Musyoka heard that SAJ had not given his consent for the boy to move to Kenya.

“The removal from Bolton, United Kingdom in November 2007 of ZAJ was wrongful, in breach of the petitioner’s rights as his biological father, and in breach of the child’s rights to parental rights and affection. The Children’s Court of Kenya lacks jurisdiction in dealing with international child abduction cases,” argued SAJ.

ZAJ’s case has been heard at the Children’s Court all the way to the Supreme Court and back to the High Court. The boy’s father told the court that he was never served with the court papers filed before the Children’s Court.

The man said AOG was aware of the international child abduction proceedings in the UK and had even sought to challenge the veracity of the orders of the Court in England. He blamed Kenya’s AG for allegedly conspiring with his wife to bar the boy from leaving the country.

Sole custody

The boy’s mother, however, told the court that ZAJ was a Kenyan resident by virtue of living in the country, adding that Kenya was not a signatory to the civil aspects of international abduction.

According to AOG, her estranged husband had chosen to pursue the abduction angle when in reality what he wanted was to have sole custody of the minor.

She denied the abduction allegation, saying that SAJ had driven her and the child to the airport and knew their whereabouts. The court heard that SAJ had visited them in Kenya and lived with them for six months. She refuted SAJ’s claim that the child was being denied a right to nationality, stating that he was entitled to dual citizenship.