Use of police officers to enforce child custody orders declared illegal
By Daniel Chege
| October 16th 2021
The use of police officers to enforce orders in child custody cases has been declared illegal.
Justice Joel Ngugi sitting in Nakuru said the move was illegal, cruel, unwarranted and therefore should never be considered in such cases.
“There are great potential and danger to traumatise the innocent minors involved by use of armed officers,” he ruled.
Judge Ngugi said use of armed police officers should only be considered very sparingly in cases where stubbornness and impunity has been demonstrated by the party against whom the orders are being enforced.
He added that the best interests of children are key in deciding cases involving minors and a potential impact of enforcement course of action need to be considered carefully.
He faulted a magistrate’s court for ordering police officers to enforce an order for the custody of two children aged 14 and eight and ensure compliance.
“In the circumstances of the above case, the use of police officers to enforce the interlocutory court orders was unwarranted and premature,” ruled Ngugi.
The court further noted that the use of officers caused trauma on the minors as per a counselling report filed in court.
Ngugi made the decision in an appeal case where two minors are at the centre of a custody row pitting the mother and father.
In the case, a divorced couple - SM (woman) and AN (man) – is fighting for the custody of the two minors, with each party choosing a different country of residence for the children.
SM filed the appeal before Ngugi on September 23 after Nakuru Senior Resident Magistrate Benjamin Limo granted interim custody of the children to AN.
She told court that she not only wanted the sole custody of her children but wanted to relocate them to the United States where she is convinced they will live a better life.
In his ruling, Ngugi faulted Limo for awarding the custody of both children, including the child of tender years, to the father without conducting the relevant legal analysis required by law.
“In Kenya, there is a rule that the custody of children of tender years should be awarded to the mother. The trial court awarded the child to the father prematurely,” said Ngugi.
Ngugi thus ordered for a retrial and returned the file to the lower court for further analysis and determination based on report on both parents.
He granted the temporary custody to the mother but ordered that the father be allowed unrestricted access to the children.
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