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September 23, 2018

Why US court stopped visit by Kenyan mom

Military officers arrive for the operation at nakumatt westgate. Photo/charles kimani
Military officers arrive for the operation at nakumatt westgate. Photo/charles kimani

THE Napa High Court has denied a mother the authority to travel with her young daughter to visit her grandmother and family back in Kenya due to the September 21 Westgate terror attack.

The court ruled the security of the child cannot be guaranteed in Kenya. This decision has brought about great debate on the authority of the courts to exercise such rights that are considered private between the parents and the children. A similar application can be made in Kenya and the Kenyan courts have the jurisdiction to give a similar order if the circumstances of the case so require.

The courts can give such decisions in exercising the doctrine of parens patriae. This is a doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf, such as children and persons living with disabilities.

The Judiciary is one arm of government that is entitled to practise this doctrine. Such orders are given to protect and safeguard rights of children where the parents fail or are unable to do so. Such orders as the above are made in the best interest of the children. It is the duty of the court to differentiate between the best interest of the children and the parents.

Children are born out of relationships, and sometimes these relationships grow sour. When this happens, the parties may engage themselves in emotional tag of wars each of them aiming at hurting or frustrating the other. Children are often caught in the epicenter of such dramas and are at times used as weapons/tools of fighting each other.

Often, when this happens, parents may move to court seeking orders they say are for the benefit of the child, an example being the above case where the mother wanted to travel with the child to Kenya. It is the duty of the court therefore to discern what is genuinely the best interest of the child and what issue has an underlying interest of either parent. The courts authority to determine the best interest of a child is pegged on statute.

The Children’s Act, Section 3 thereof provides that The Government shall take steps to the maximum of its available resources with a view to achieving progressively the full realisation of the rights of the child set out in this Part. Section 4 (2) provides that In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

All measures should be taken to prevent children from all forms of harm, including violence. Section 10 (2) of the children’s act provides that No child shall take part in hostilities or be recruited in armed conflicts, and where armed conflict occurs, respect for and protection and care of children shall be maintained in accordance with the law.

The courts can rely on this provision of the law to make orders similar to the ones highlighted above, so as to protect the child from exposure to violence, and to guarantee the best interest of the child. In the above case, the father of the child not only cited security as a ground to prevent the child from travelling back to Kenya, but also the risk that the mother may not return the child back to the United States.

The court has to look at and analyse such facts against the evidence in order for it to determine what action can be taken that will not jeopardise the best interest of the child. The best interests of children are guaranteed in the constitution of Kenya. Article 53 (2) provides that A child’s best interests are of paramount importance in every matter concerning the child. International law also recognizes the duty of states and state organs to protect the children considering their vulnerability.

The preamble of the Convention on the Rights of the Child provide that “Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance, Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth,”.

This emphasizes the need for courts and other state organs to take up measures to protect children, hence decisions as the foregoing. Article 3 (1) of the convention also provides that In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The courts have authority to make decisions such as the above, to protect rights of children. The courts are best placed to moderate and decide what is best for a child where the parents have vested interests in the welfare of the child.

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