Every child deserves parental care. Children get this care from men who are either their fathers and/or step-fathers. Men can acquire this duty and right in two ways. The biological father assumes it automatically at the birth of the child, while a step-father assumes it upon marrying a lady with a child from a previous relationship. Both fathers are bound to do all the duties and enjoy all the rights that come up with parenthood. This raises the issue of duality which forms a breeding ground for problems on conflicting parental duties among the fathers. This may lead to commercialisation of parental responsibility. This paper looks into the problem of duality: its causes, manifestation and consequences in Kenya. It then discusses remedies to the problem.
Family is the most important social unit in any place. It provides a ground for people to depend upon each other financially, socially and emotionally.[1] It is the institution that moulds the future of any state. Despite the great benefits that the society gets from the institution, family can get ugly. It may be a field of untold battles. A field of pain and suffering. The noble duty of the law is to ensure that the family unit is protected, and it retains its original status- being a safe space. Unfortunately, the law, in some aspect, has specifically fuelled trouble in the family. This paper will look at the how the law breeds chaos in the subject of parental responsibility in relation to men.
Every person has a right to marry.[2] Adults can decide to marry at any one point and divorce if the circumstances demand so. Adults can also decide to cohabit.[3] Even after divorce, a person can remarry and in the case of cohabitation cohabiting, the partners can separate and remarry. Consequently, these multiple relationships result in the birth of children possibly from each relationship. Undoubtedly, this raises concerns when it comes to parental responsibility.
The question on who has parental responsibility over the children has been clearly answered. The biological fathers and the mothers’ spouses automatically assume parental responsibility. However, despite having laws that clearly delegate the parental responsibility, the problem of duality of parental responsibility still manifest in our Kenyan society since the law does not clearly provide a way of transferring parental responsibility and outline the legal consequences of transferring parental responsibility from the biological father to the mother’s spouse. In consequence, we get to a point where children have two or more fathers with parental responsibility over them: a breeding ground for challenges in the family set-up.
This piece specifically discusses the problem of duality arising from the gap in the law. It first explains the current legal architecture on parental responsibility in Kenya. Proceeds to extract the problem of duality from the legal architecture. It explains how the problem manifest itself in Kenyan courts and society. Further, it goes on to discuss the consequence of the problem in our society. It recommends solutions to resolve the issue before making its conclusion.
2.0 The legal architecture
The law of who has parental responsibility over children in Kenya is clear. The law looks at this issue from two points of view: the biological fathers and the mothers’ spouses.
The biological fathers have parental responsibility over their child. Article 53(e) of the Constitution provides that the fathers and mothers of children have equal parental responsibility over children, whether they are married or not.[4] This position was affirmed in NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR which held that biological fathers assume parental responsibility over children automatically at birth.[5] L.N.W v Attorney General & 3 others [2016] eKLR held that it matters not whether the biological fathers were married to the mothers at the time of birth, they still assume duty.[6] Further, the father’s responsibility cannot be relinquished, assigned or transferred to another person.[7] They cannot run away from their duty. If they do, the law can always catch up with them.[8]
On the other hand, mothers’ spouses have full parental responsibility over children of their partners from previous relationships. They assume the role of the step-fathers. Section 34 (6) of the Children Act, 2022 stipulates that spouses have parental responsibility over their partner’s children whether or not they have adopted them.[9] The provision has the following meaning and consequences. First, the step-father adopts “all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.”[10] Secondly, as stipulated under section 32(2) & (4), the spouses are bound by those duties at all times. The duties can be legally enforced by the courts, and they cannot relinquish it or assigned to anyone else.
Granting parental responsibility to step-fathers is well informed by reason and practice. Three cogent reasons have been given by the courts for this move. (i) The paramountcy principle. (ii) Spousal acceptance of the child as theirs. (iii) The long relationship between the child and the spouse that creates a bond that ought not to be easily broken.
The leading case on the paramountcy principle is ZAK v MA and Attorney General [2013] eKLR. The court was of the opinion that in considering children matters, the courts and administrative bodies should give precedence to the best interest of the child before giving effect to the rights of the parents.[11] Therefore, before giving regard to the rights of biological fathers and step-fathers, the Court should first consider the interests of the children. In consequence, the Court held that in the best interest of the step-children, step-fathers should and must have parental responsibility over them and be bound by any duties that come thereafter. Arguing otherwise would put the best interest of the children at peril.
Spousal acceptance of children as theirs. In EKTM v ECC [2022] eKLR, the Court held that when spouses accept their partners’ children as theirs, they immediately assume full parental responsibility.[12] This acceptance is signified by bringing the children up, providing for their education and medical fees, altering their birth certificates to add them as parents. They are therefore bound by duties they have assumed and cannot relinquish them at any one point.
A long-term relationship between the children and their step-fathers creates a requirement for step-fathers to have parental responsibility. ZAK v MA and Attorney General [2013] eKLR held that “[i]t would be an affront to morality and the values of the Constitution for a party who has had a relationship with a child akin to that of a father or mother to disclaim all responsibility and duty to maintain the child when he or she falls out with the parent of the child.”[13] In the end, the step-father of a child is fully bound by the roles and duties that come with parental responsibility. The biological father is bound by the same roles. A problem of duality arises.
3.0 Explaining the problem of duality
Section 32 of the Children Act habits the problem of duality. Section 32(2) of the Act stipulates that a person who has parental responsibility shall not cease having it.[14] Subsection 4 continues to underline the fact that a person with parental responsibility cannot relinquish it or assign it to someone else, unless on temporary basis.[15]
Three consequences out of the two subsections exist: Firstly the biological father retains parental responsibility over the children even when the mother marries/remarries or cohabits with another man, secondly, the mother’s spouse, who assumes full parental responsibility of the children born out of the previous relationship/engagement,[16] still retains it despite the biological father having it and thirdly, the biological father and the step-father will still retain parental responsibility if the mother finds another spouse. The chain may go on and on to as many number of spouses the mother may have, as long as the mother wishes. Both men are bound by “all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.”[17]
The law is blind and silent on the consequences of the duality. Despite assigning parental responsibility to two men, the law does not make an attempt to distinguish their roles and duties and their rights towards the child. Questions such as who between the two should provide for the child, who has the right to access the child, whose religion the child will follow, and other questions relating to the rights of the child and duties of a parent are not answered. The consequences of this problem are already manifesting in our Courts.
4.0 The manifestation and consequences of duality
This piece discusses four consequences of duality and lack of clear legal consequences of double parental responsibility include (i) double maintenance which may lead to commercialisation of parental responsibility. (ii) Denial of the child’s right to parental care of biological father by not recognising the biological father. (iii) Double inheritance and unjust disinheritance of children and (iv) Conflicting division of other parental duties.
4.1 Double maintenance of children.
The law creates a scenario where a mother can seek maintenance of a child from two or more men i.e. from both the biological father and the step-father (during separation or divorce). NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR held that biological fathers shall at all times have a duty to maintain their children.[18] Children Act also confers the same binding duty to spouses/ step-fathers.[19] In case of divorce with the step-father, the lady can seek child maintenance from both the biological father and the step-father. This may lead to commercialisation of parental responsibility.[20] The Courts have been faced with this scenario.
In ZAK v MA and Attorney General [2013] eKLR, a lady had children from a previous relationship. She later cohabited with ZAK with whom they had twins. They had a conflict. ZAK decided that he would only provide for his own children and not for the children from the earlier relationship. ZAK tried to convince the court that the biological father of the children from the earlier relationship was providing for them, he therefore ought not to provide for them.
The court did not look at the fact that the biological father provided for the children. Furthermore, it never looked at the fact that, legally, the biological father had parental responsibility over the children and ought to provide for them. The court argued that a ZAK is bound to provide for the children from the earlier relationship since: it would be in the best interest of the children and he had formed a father-children relationship with them that could not be broken due to the separation of the parents.[21] In the end, the reality was that the children were maintained by two men: ZAK and the biological father. However, the court was silent was silent on the role on role of the biological father. The decision seems to insinuate he had no role in taking care of his own children since the burden had been shouldered by ZAK. This problem shall be handled in a later section.
The consequence of double maintenance would give a loophole for commercialisation of parental responsibility. A lady would have a child with one man and marry (through the Marriage Act or cohabit with one or several other men sequentially), then demand maintenance from them as a way to maintain a living. Such a case has also been witnessed in our courts.
The facts of RWM v PMM [2021] eKLR are similar to that of ZAK v MA and Attorney General [2013] eKLR above. A lady sought child maintenance from her spouse even though the biological father still maintained the child. The court was right in its holding. The judge found it “unconscionable that a woman would seek maintenance for her child from two men; the biological father and another man.”[22] However, that is the unconscionable position that the law has placed Kenyans in. Seeking maintenance can be transformed to a new job that lasts for eighteen years or more depending on the length of parental responsibility.
4.2 Denying the children the right to know their father, preserve their family relations and biological parental care
The complete hand-over of parental responsibility over the spouse can deny a child the right to parental care of the biological parent. Under Article 7(1) of the 1989 Convention on the Rights of the Child, children have the right to (i) know their parents and (ii) enjoy parental care from their parents.[23] However, the complete handing over of parental responsibility to the spouse and the methods used to hand over that responsibility can have the consequence of denying the children the right to know their parents and enjoy parental care from them.
The law may have provided that parental responsibility cannot be relinquished or be assigned to anyone else, however, the orders seen from our courts have a different effect. The orders in J. N. K v E. W. M [2014] eKLR illustrate this point clearly. The court did not order a biological father to take care of his child since he had not been in a relationship with the child for nine years.[24] The court tacitly assumed that the child was under the full parental care of the man cohabiting with EWM. Parental responsibility had been completely handed over from the biological father to the other man. Looking at it from the child’s point of view, he or she, never had a chance to be taken care of by the biological father. This is denial of the fundamental right of parental care as foreseen by Article 7(1) 1989 Convention on the Rights of the Child.
The second scenario is the judgement in ZAK v MA and Attorney General [2013] eKLR. The court did not answer the question, what the role of the biological father is in relation to the spouse’s parental responsibility. All parental responsibility was placed on the step-father. The court did not envision the role that the biological father had to play in the lives of the children. He probably had no role since the whole burden was taken care by the step-father. If the biological father is unwilling, the child may end up being denied the required parental care in alignment with his or her rights.
Methods used to evidence hand-over and assume parental responsibility deny a child knowledge and care of biological parents. One of the factors that the court in EKTM v ECC [2022] eKLR majored on to hold that the step-father had assumed parental responsibility, is the fact that the step-father had caused his name to be written in the birth certificate of the child. Such a method of acquiring/ assuming parental responsibility is dangerous to child and should never, in any way, be encouraged. The biological father’s name was not written in the birth certificate, rather, it was the step-father’s name. The consequence of that is highlighted in L.N.W v Attorney General & 3 others [2016] eKLR; the child will be denied the right to ever know the real biological father, since the information in the birth certificate is a misrepresentation of the facts. Further, the child will not have a chance of enjoying parental care from the biological parent. Lastly, as stipulated under article 8(2) (iii) of the 1989 Convention on the Rights of the Child, without knowing the real biological father, the child will be denied the right to preserve their identity which includes preservation of their family relations.[25]
4.3 Double inheritance and unjust disinheritance of children
A parent has a duty to provide for the family even when he/she is dead.[26] Therefore, children of the deceased person should get a share of the estate either as beneficiaries or dependants (depending on the circumstances).[27] This provision should only go to those who are entitled to it and in our case, the children.[28]Section 3(2) of the Law of Succession Act defines a child as: (i) a person born of a woman or a man or (ii) a person whom a man has expressly recognized as his or whom he has voluntarily assumed parental responsibility for.[29] Two problems arise from this definition: double inheritance, and concept of express recognition or voluntary assumption of parental responsibility.
Double inheritance arises where, the child will be entitled to inherit from the step-father(s) and the biological father. Looking at the scenario of a woman with multiple husbands, the child would be entitled to inheritance from the two or more men. They all have parental responsibility over the child. This is an aspect of commercialization of parental responsibility.
Children from previous relationship may also risk being disinherited from a spouse. Section 17 of the Children Act provides that every child has a right to inherit within the scope and provisions of the Law of Succession Act.[30] When defining a child, the Law of Succession Act clearly requires that for children from previous relationships to inherit, the spouse must have either expressly recognized them as his or voluntarily assumed parental responsibility for them.[31] Consent is at the backbone of enjoyment of this critical right.
Assumption of parental responsibility is not enough. It must have been assumed voluntarily. It may be argued that spouses’ assumption of parental responsibility is not voluntary because it is a dictate of the law. There is no choice given to the spouse under section 34(6) of the Children Act 2022. The spouse may have been forced by the law to assume parental responsibility, which does not conform to the spirit of section 3(2) of the Law of Succession Act on voluntariness. The child may end up being disinherited since there is no evidence of express recognition or evidence of voluntariness of assumption of parental responsibility. The clearest way to resolve this problem is a clear pronunciation, in writing of assumption of parental responsibility.
4.4 Conflict on division of other roles
The role of parents is not limited to maintenance. Section 31 of the Children Act 2022 provides an array of other roles. The duality problem breeds other issues regarding this roles and rights. For instance, a parent may have a duty to receive, recover and otherwise deal with the property of the child for the benefit, and in the best interests, of the child.[32] The law does not provide clarity who between the spouse/step-father and the biological father will have that parental duty. In case of medical consent cases, the law does not provide who between the two has the right to give approve? The law does not foresee what would happen if the opinions of the two differ in relation to the rights and duties towards the child. It does not provide an option hierarchy in parental responsibility, where the biological father has a higher parental responsibility over the child, in cases of difference in opinion. In the end, the disagreements between the two may cause harm to the minor. These problems need proactive and pragmatic legal solutions. They inform the recommendations.
5.0 Recommendations
The legal recognition of transfer of parental responsibility and relinquishing of parental responsibility is at the heart of any practical changes in this area. The law must provide a clear process in which parental responsibility can be transferred and relinquished to cure the problem of duality. It should, thereafter, deal with the problems that come with this recognition which include denial of a child the right to parental care, instances when both biological father and co-parent seek parental responsibility over the child, the role of the spouse in instances when the biological father has parental responsibility over the child, but the child lives with the spouse.
5.1 Recognition of transfer of parental responsibility and relinquishing of parental responsibility
The law should recognise a fact that parental responsibility can actually be transferred and be relinquished. The biological father or the spouse can actually lose parental responsibility over a child. Three cases illustrate this view. EKTM v ECC [2022] eKLR, RWM v PMM [2021] eKLR and J. N. K v E. W. M [2014] eKLR. In EKTM v ECC [2022] eKLR and J. N. K v E. W. M [2014] eKLR the biological fathers of children lost parental responsibility over their children, since it had, in reality, not legally, been fully transferred to the step-fathers. In RWM v PMM [2021] eKLR, the step-father’s parental responsibility over the child was relinquished the moment it was transferred back to the biological father. The law will only be recognising a reality that is already happening and the society would benefit from this move.
Some of the benefits of this move is that it will be legally clear, who has the parental responsibility over the child. The problem of duality will have been resolved. The parental responsibility will be with one man and one woman. No more. If there are rights to be enjoyed by those who have parental responsibility, then it will be clear who are entitled to the rights. However, this recommendation may raise several questions:
- Won’t relinquishing biological father’s parental responsibility over a child deny the child the right to parental care?
- What if the child wants to access the biological father?
- The biological father may want to retain the parental responsibility, but the child will have to live with the mother and the step-father. What will be the role of the step-father?
- Both the step-father and the biological father may want to have and retain parental responsibility over the child. How should this conflict be resolved? How do they share roles?
- What are the ways of transferring parental responsibility?
The above questions inform two major recommendations: (i) Creation of a legal processes to transfer parental responsibility with clear legal consequences of each process and (ii) Recognition of different types of parental responsibility that one may have towards a child.
5.1.1. Provision of specific legal ways of transferring and relinquishing parental responsibility with clear consequences
The law should create a legal process that should be used to transfer parental responsibility from the biological father to the step-father. This could be through modes highlighted in JP & Anor vs SP & CP [2014] EWHC 595 (Fam) i.e. i. A Parental order or ii. Adoption.[33]
A.M.N & 2 others v Attorney General & 5 others [2015] eKLR was of the opinion that a parental order is the easiest way to confer parental responsibility.[34] By a signature of the court, the parental responsibility transfers from the biological father to the step-father. All magistrates’ courts, due to their prevalence, should have the jurisdiction to give such orders. This should be done within the first 6 months of marriage or cohabiting. Thereby, creating an express and unequivocal intention to assume parental responsibility of a child. Without such a parental order, the biological father retains parental responsibility, until and unless the step-father adopts the child.
Under section 186 of the Children Act, the spouses of parents can adopt their partners’ children.[35] This is the second way to expressly show that a step-father is clearly and unequivocally willing to assume parental responsibility.
The legal consequence of this is that the parental responsibility transfers fully from the biological father to the step-father. The biological father is not in any way bound by the legal parental responsibility over a child. The parental responsibility is fully with the step-father. The child is entitled to be maintained by and inherit from the step-father and not the biological father.
However, two critical aspects of the legal consequence should be taken note of. First, a child has a right to know his/her parents and family members. Therefore, the birth certificate should not be changed to reflect the name of the step-father. It should retain the name of the biological father. The name of the step-father should appear in the parental order or in the adoption certificate. Further, the child should have access to the biological father at any time he/she desires. All this is to ensure that the child retains his or her identity and is not denied parental responsibility.
Second, both the spouse and the biological father may want to have parental responsibility over the child. The difficulty that arises is on sharing on roles and the equality of parental responsibility. To resolve the first issue, the spouse and the biological father should have joint parental responsibility over the child. To realise this, they should enter into a parental-responsibility agreement as per section 33 Children Act, share the roles and duties that come with parenting. Then, with their agreement attached, the spouse should seek parental order from the court. This will allow both the spouse and the biological father have parental responsibility over the children. However, in this joint responsibility scenario, the biological father and spouse may differ on opinions and actions.
When the father and the spouse differ on how to handle a certain issue on parental responsibility, two factors should guide and administrative body/ court in making guiding the way forward. First, the body should consider: under whose role does the issue fall as per the parental responsibility agreement. If the issue falls under the roles of the spouse, then he has a higher say. If it falls under the roles of the biological parent, then he has a final say. Second, if the issue had not been envisaged by the parental agreement in that, it is too novel and does not fall under anyone’s role, then, the biological father should have a higher say.
5.1.2 Recognition of different types of parental responsibility in Kenya
Two scenarios demand that the Kenyan law recognizes the different types of parental responsibility. First instance is where the biological father has retained full parental responsibility over the child, but the child lives under the control and care of the step-father. The second scenario is where the step-father has taken over the full parental responsibility over the child. In the two instances, the law must decide the role of the step-father and the biological father in the life of the child is.
The courts in In the matter of Re: D (A child) EWHCC 2121 (Fam) and Re G (children) [2006] 2 FLR 629 and affirmed in our own A.M.N & 2 others v Attorney General & 5 others [2015] eKLR highlighted the following types of parental responsibility: genetic parental responsibility, gestational parental responsibility, social and psychological parental responsibility and legal parental responsibility.[36] The courts were quick to hold that only legal parental responsibility confers upon the parent the binding duties and enforceable rights upon a child.
However, in the spirit of section 31(4) of the Children Act, the other types of parental responsibility should have a legal effect. The section provides that “a person who does not have parental responsibility over a particular child, but has care and control over the child, may, subject to the provisions of this Act, do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.”[37] Though not conferring rights and duties, any person with any other type other than legal parental responsibility, should act in the best interest of the child. Therefore, even though the spouse may refuse to have parental responsibility over the child, he is legally bound do what is reasonable in all circumstances to promote and safeguard the child’s welfare. He has the social and psychological parental responsibility.
The biological father on the other hand retains the genetic parental responsibility. The only thing he has transferred is the legal parental responsibility. He is also therefore bound to promote and safeguard the welfare of the child in all circumstances. Therefore, even though the biological father has no legal parental responsibility towards the child, the child can easily access him and get the parental care desired.
6.0 Conclusion
The major problem with the issue of parental responsibility in Kenya is the lack of a legal process of acquisition and transferring parental responsibility. With the lack of a clear process and clear legal effects, the society finds its self with the problem of duality of parental responsibility. This carries with it an array of problems: commercialization of parental responsibility through double maintenance, denial of a child of parental care, double inheritance and unjust disinheritance of children and conflicting parental roles and duties.
The solution is in the problem: formally recognizing that parental responsibility can be transferred and relinquished. Therefore, when one person acquires parental responsibility, the other loses it. This resolves the whole issue of duality. The law should be keen to identify the legal consequences of the transfer to ensure that the best interests of the children are kept at heart. All in all, the family will be a better environment when clarity of roles, duties and rights is at the centre of the law.
Lawrence Kariuki is a third-year student of Law at the University of Nairobi. He serves as the Managing Editor, University of Nairobi Law Journal.
[1] Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, para 18.
[2] Lawrence vs. Texas, 539 U.S. 558 (2003); Constitution of Kenya, 2010, art 45(2).
[3] Marriage Act, 2014, s.2.
[4] Constitution of Kenya, 2010, art. 53 (e).
[5] NSA & anotherv Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR.
[6] L.N.Wv Attorney General & 3 others [2016] eKLR.
[7] Children Act, 2022, s. 32(2) and (4).
[8] NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR.
[9] Children Act, 2022, s. 34(6).
[10] Children’s Act, 2022, s. 31(1).
[11] ZAKv MA and Attorney General [2013] eKLR.
[12] EKTM v ECC[2022] eKLR.
[13] ZAKv MA and Attorney General [2013] eKLR.
[14] Children Act, 2022, s. 32(2).
[15] Children Act, 2022, s. 32(4) and (5).
[16] Children Act, 2022, s. 34(6).
[17] Children Act, 2022, s. 31(1).
[18] NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR.
[19] Children Act, 2022 s.34 (6).
[20] See Berggren HM, “Defiant Dads: Fathers’ Rights Activists in America. By Jocelyn Elise Crowley. Ithaca, NY: Cornell University Press. 2008.(2010) 6 Politics & Gender 497. This paper illustrated the concerns of men that money they paid for child maintenance was not used for the said purpose. If this is the case, then consider a scenario where there is more than one man providing the child support money. This is an area that actually needs field-research in Kenya. The research should be conducted to understand how the amounts from child support are used and whether they are used in ways that do not benefit the children.
[21] ZAK v MA and Attorney General [2013] eKLR.
[22] RWM v PMM [2021] eKLR.
[23] Convention on the Rights of the Child, article 7(1).
[24] J. N. K v E. W. M [2014] eKLR.
[25] Convention on the Rights of the Child, article 8 (2) (iii).
[26] William Musyoka, Law of Succession (Law Africa Publishers 2010) 5.
[27] Law of Succession Act, ss.5, 26, 40, 42; Children Act, 2022, s.17.
[28] In The Matter Of the Estate of Mbiyu Koinange[2015] eKLR.
[29] Law of Succession Act, s.3 (2).
[30] Children Act, 2022, s.17.
[31] Law of Succession Act, s.3 (2).
[32] Section 31 (2) (c) (v) Children Act, 2022.
[33] JP & Anor vs SP & CP [2014] EWHC 595 (Fam).
[34] A.M.N & 2 others v Attorney General & 5 others [2015] eKLR.
[35] Children Act, 2022, s.186.
[36] A.M.N & 2 others v Attorney General & 5 others [2015] eKLR.
[37] Children Act, s. 31(4).
