Can a parent be forced to see their child?

Hi Wakili,

My daughter is almost two years old, but she had never seen her father, despite the court giving him unlimited access in June 2020, when we went to family court over custody issues.

We have other older children, whom he picks from my house sometimes, but he is not interested in the smallest one, and now she thinks he is just a strange man or uncle who picks up her siblings, which breaks my heart. What should I do?

Dear Distressed Mother,

Your concern is a discourse on the importance of the rule of law and the place of court orders in today’s society. First, we remind each other that the law does not operate in a vacuum. As a purpose, it creates and sustains sanity in stained or likely to be relationships. It does not necessarily create peace. Court orders, by their construction, are not optional in execution. They can be made so if the same court that issued them or one with similar jurisdiction is approached to rescind them.

You claim that your daughter’s father, despite being bound by the court to visit and take her every weekend, has been unfaithful to the order. He has displayed this behaviour for one year, three months, since the order was issued in June 2020.

In law, he has committed what is referred to as contempt of court. Court orders and directions are mandatory, and it is expected that anyone to whom they are directed chooses not to obey them. There is a plain, unqualified and uncompromising obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey that order unless up and until it is discharged.

When the court issued the order in discussion, it operationalised Article 53 of the Constitution, particularly sub-Article 1 (e), which provides equal parental responsibility. It was in your daughter’s best interest as stated at article 53 (2), for the father to pick and be with her at least every weekend. On the contrary, he has not fulfilled the obligation.

In the absence of a couple-driven agreement, you may need to file an application for contempt of court. To prove contempt of court allegations, since you have made the claim, it is required that that you demonstrate with very little doubt, if any, the following: the terms of the court order were clear without any ambiguity; secondly that he, as the respondent was in full knowledge of the order: and that he had failed to do what the order instructed him to. You will therefore be asking the court to employ the Contempt of Court Act of 2016 and punish the father of your daughter for three main reasons: first, his actions undermine the power of court: secondly, such actions, if viewed in their broadest effect amounts to precedence where the globe doesn’t take the court and its orders seriously: and third, his action injures the best interest of the child principle, hence reduces the chances of your daughter growing and developing in an ideal world of father and mother.

Under Kenyan law, there are generally two types of contempt, namely, Criminal and civil contempt. Criminal contempt occurs when the contemnor actually interferes with the ability of the court to function properly.

Examples include being rude, yelling at the judge, threatening a judge or witness, causing a disturbance in the courtroom and disrespect to the decorum of the court. Criminal contempt proceedings are prosecuted for preserving the power and vindicating the dignity of the court.

Civil proceedings on the other hand, are remedial and are applied to enforce the rights of private parties by motivating an accused contemnor into doing what he is required to do by the court order. Sometimes, the same act or failure to act by a party can justify either civil or criminal contempt proceedings. Based on the foregoing, courts deal with applications for contempt of court seriously and urgently.

The Supreme Court of Kenya has, in the case of Board of Governors, Moi High School, Kabarak v Malcolm Bell, typified the power to punish for contempt as one of the inherent powers of a court which enables the Court to regulate its internal conduct, safeguard itself against contemptuous or disruptive intrusions from elsewhere, ensure that its mode of discharge of duty is conscionable, fair and just. Therefore, these endowments enable the court to remain standing as a constitutional authority and ensure the court’s internal mechanisms are functional.

 Without these powers, protection of citizens’ rights and freedoms would be virtually impossible as courts of law would be reduced to futile institutions spewing forth orders in vain. The dignity of the court to create sanity and resolve disputes must never be undermined.

Go forth and move the court with an action of contempt, assist the little girl in realising her right to fatherly care, and create an opportunity for the court to exercise the authority that accompanies its decisions.

Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]