Legal Clinic: She changed our child’s middle and last names

Depressed man

My doctor diagnosed me with severe depression.

Photo credit: Pool

What you need to know:

  • Registration of a child’s birth is also the entry of their name in government records as guided by the Births and Death Registration Act.
  • This is usually the official and first recognition of the child’s existence by the state.

Hello Eric,
I hope this finds you well. I had a child with my ex seven years ago and we are co-parenting though our relationship is strained. Recently, I learnt that she changed our daughter’s middle and last names. She got someone to issue a second birth certificate. Is this legal? How can I make sure the child has my name?

Dear Reader,
We remind ourselves that the law, even in its most rudimentary form and intention primarily invites justice for all its consumers. This context does not change on matters concerning the rights and welfare of children, similarly their parents. 
Although silent, it behoves us to understand justice as shared and equal parental responsibility between father and mother. 
Article 53 (1-e) of the Constitution of Kenya emphasises this matter, making clear that marital status does not add nor remove an inch of responsibility by either parent. 
In this respect, your strained relationship holds no ground for less involvement by either of you in the life of this young girl. You and your ex have similar and equal rights besides unrestricted creativity since you co-parent to protect and promote the best interest of your daughter.
In most cases, the naming of a child is wired in social contraptions of communities and so are the accompanying ceremonies. 
Registration of a child’s birth is also the entry of their name in government records as guided by the Births and Death Registration Act. This is usually the official and first recognition of the child’s existence by the state. 
In the eyes of the government, registration and naming are synonymous. Section 8 of this Act directs the Registrar of births not to register any birth after the expiration of six months from the date of birth. From your text, we are unable to point out the exact time that your ex changed the name of this seven-year-old girl. 
Your concerns are legitimate and are enshrined in law. Section 23 (2-c) of the Children’s Act provides parents with the right to determine the name of a child. If this is read together with Article 53 (1-e) of the Constitution, on equal parental responsibility, then your case for lodging a legal complaint begins to find flesh for any argument before a magistrate in a children’s court. You confirm that your ex managed to change or alter the name of your daughter. There could be many reasons making this possible without any speck of corruption or bending of the law. Section 14 of the Birth and Death Registration Act allows for the change of name of the child after first registration. The specific clause states “where the birth of any child has been registered before it has received a name, or where the name by which it was registered is altered, the parent or guardian of such child may within two years of the registration, on payment of the prescribed fee, and on providing such evidence as the registrar may think necessary, register the name that has been given to the child.”
If your ex occasioned the change after two years, she must have completed a deed poll to alter the girl’s name. A deed poll is a binding declaration of intention sworn by one person or more, in such cases providing grounds for alteration of name. Such change must have been allowed if the Registrar of Documents did not find any grounds of fraud, deceit or read intention to skip an obligation by the applicant. 
If the name did not connote inherited or conferred title: if the name did not signify vulgarity (although this is subjective since Registrars may not understand the meaning of names in their ethnic orientation): if the name did not pose difficulty to pronounce and contained no symbols, numbers or punctuation marks: and if the name did not seem to ridicule people, government departments or infer religious bigotry. Before the name is allowed use, the Registrar gazettes it for a maximum of thirty days to allow for any possible opposition or petition.
From the foregoing, you have grounds to launch a legal petition to challenge the change of name of your daughter in court. There is evidence to indicate: deliberate omission on the part of your ex to inform you of the intended name change: ulterior motives by your ex to change the name, including possibilities of fraud, deceit, and intention to skip obligations: non-consideration of the best interest of the child as provided for at Article 53 (2) of the Constitution: and: non-consultation as expected in the interpretation of Article 53 (1-e) on equal parental responsibility. In delivering your submission, seeking inclusion of your name on the birth certificate, please contest the validity or legitimacy of the second birth certificate and quote case law as exemplified by the decision in the case of L.N.W. v the Attorney General & 3 Others [2016], in which the court declared that registration of a child’s birth is a duty of parents. 
However, since the court process can be tedious, time and resources consuming, condescending, and adversarial, our advice would be to first pursue alternative dispute resolution mechanisms as anticipated at Article 159 (2-c) of the Constitution. Find room for both of you to engage and invite wisdom to solve this problem, either through direct conversations and negotiations or mediation. 
Remember, as a couple that sired this girl you are working for her best interests.

Mr Mukoya is a lawyer with over 17 years of experience. He's the Executive Director of Legal Resources Foundation. Legal query? E-mail [email protected]


You're all set to enjoy unlimited Prime content.