Can my ex-husband sue for full custody of our son over a newspaper story?

My ex-husband asked why his child was featured in a newspaper story, during a school event, without his consent.

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My child was featured in a newspaper recently during a school event. My ex-husband saw it and asked why his child was placed in the newspaper without his consent. He is a very stubborn man; that's why we divorced. Now he is threatening to sue me and get full custody of our son. Can it hold water in court?

Dear reader,

Children are the most protected beings by law in Kenya. They are considered the most vulnerable by every standard of vulnerability. The cornerstone of all legislative provisions is anchored in Article 53, Clause 2 of the Constitution, which, if read together with Section 8 Clause 1 of the Children's Act, affirms the best interest of the child principle. It is the most overbearing and dutifully significant tenet of all decisions, programmes, and any action involving every child's wellbeing, whether done by a private or public entity.

To contextualise the fears that experts, parents, states, and children, amongst other people and institutions, have concerning children is their susceptibility to myriad violations. First, child trafficking is on the rise. Second, child abuse, especially online grooming, besides deliberate and opportunistic bullying, defilement, exposure to pornography, and slavery, is rampant. The list is endless.

Let us begin here. The right to privacy, as articulated in Article 31 of the Constitution, gives every person the protection necessary for their development and wellbeing. Children are persons. Clause (c) of this Article asserts that every person has the right not to have information relating to their family or private affairs unnecessarily required or revealed. This provision is mirrored in Section 27 Clause 2 of the Children's Act, which states that parents or legal guardians have the legal right to exercise reasonable supervision over the conduct of their children about their right to privacy. Clause 3 further regulates the personal data of a child only by the provisions of the Data Protection Act (No. 24 of 2019).

Sections 31 and 32 of the Children's Act afford both parents equality in parenting pursuant to Article 53 Clause 1 paragraph (e). This points to their legal rights, powers, responsibilities, and authority in relation to the child and the child's property in a manner that agrees with the evolution capacities of the child. It is also important to note that the parents of a child have equal parental responsibility over the child, and neither the father nor mother has a superior right or claim against the other in exercising parental responsibility, whether or not the child was born within or outside their current marital status respectively. Their obligation to the child does not reduce at any given time.

Following this, the child's father needed to have been consulted on whether the child should have appeared in the newspaper. Similarly, suppose no parental responsibility agreement clearly states mechanisms for dealing with such issues. In that case, all parents must engage each other all the time, alongside the institutions which partner with them in parenting, to make decisions that protect the child holistically. Modern practice, informed by restraints against some of the likely violations mentioned earlier, is driven by the six principles of safeguarding, which at the least consider prevention, protection, proportionality, and empowerment. This means taking action before harm occurs, supporting and representing those in greatest need, and allowing children to make decisions. In this regard, the school and the newspaper needed to have gotten consent from both parents and the child if they demonstrated a capacity for such a decision.

In the case of FAF (suing on her own behalf and as a next friend of SAS and NAMS) v Norwegian Refugee Council [2019] eKLR, the petitioner filed the case against the Norwegian Refugee Council, which had posted photographs of her and her children in a pamphlet that was circulated to the public on the grounds that this was a violation of her privacy. The High Court ruled in her favour stating that publishing her photos without her consent was a violation and an invasion of the petitioner's right to privacy and an exploitation of her photographs, for which she was awarded damages.

Based on the afore-described circumstances, it is the right of the father to take legal action. Whether, as empowered by Section 102 of the Children's Act, this could be sufficient grounds for actual or legal custody regarding the child is only a matter the court will consider based on the facts presented before it and the merits of the case, in consideration of the primary grounds as articulated in Section 103. However, good co-parenting practices demand that the mother and father of a child consider other avenues to solve such matters before proceeding to court. Remember, the court has the powers to order for court-annexed mediation, which in part is aimed at reducing animosity between parents who require sobriety to parent their children, besides creating space for the larger community in the welfare of the child, in the pursuance of the bigger goal of justice for the child.

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