Legal Clinic: Will changes in childcare law benefit children? 

Hi Eric, 
I read recently of a Bill giving 50-50 rights to mother and father, regardless if they were married or not. Many MPs backed it. The newspapers reported it as a win for men. But I thought to myself it was the child that might end up suffering. Kindly break down what that means for parents; thanks. 

The law loves children. While it prescribes their duties, it painstakingly obligates parents to make good their commitment to them, despite their differences.

Therefore, its greatest motivation is to determine how equal parental responsibility prioritises child stability and safety.

The law at its politest intent, beginning with the Constitution at Article 53, is the absolute demonstration that children must be removed, if need be, from conditions that increase and embolden their vulnerability, even if this means taking them away from their biological parents.

Similarly, put in places where their protection is guaranteed.
Article 53 (2) provides that a child’s best interest be the guiding principle in all decisions, household actions, policy directions, programs, plans and love that we all engage as individuals and institutions.

The law doesn’t care about the love or hate between a couple who sired a child together.

It is deeply constructed to reduce every chance or possibility that could expose a child to abuse, violations and uncertainty. Section 4 (2) of the Children’s Act is the operational law emphasises that all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, be driven by the best interest of the child.

Is this a win for men, as you have been made to understand? No, it’s a win for children. 
The law has debunked stereotypes that denied children care and protection besides encouraged some parents to be irresponsible.

Such stereotypes include practices of parenting only by mothers for children born outside wedlock.

Divorced or separated couples, who as parents never cared about the welfare of their children irrespective of who shouldered custody.

Nowhere is it written in law that there are specific responsibilities for the mother and others for the father.

However, it recognises the different biological functions of males and females, which is one of the reasons very young children are left with their mothers for effective breastfeeding but does not exclude the father from providing supplies to make this a reality. The decision of the court in the matter of MK vs CKK HCA 51/2015, provided that parental responsibility is shared and not equal based on the financial position of each parent. As the resident parent, the mother has a nurturing role to the children and the father provides maintenance and upkeep of the children.

Parental responsibility 

Section 23 of the Children’s Act prescribes parental responsibility as a power, duty and right to maintain children or a child, provide them food, shelter, medical care, education, clothing and protection from neglect, discrimination and abuse.

In a nutshell, parents must work together to ensure their children find maximum peace, love, stability and dignity in their lives. This is why Article 53 (1-e) emphasises the absence of marriage between a couple to be immaterial to children's rights.

Following the court’s decision in a case referred to as Zak & Another vs The Attorney General & Another (2013), section 24 (3) of the Children’s Act is unconstitutional since it aimed to predispose parental responsibility only to the mother owing lack of marriage.

The safety of children, as mentioned in this text, is paramount. The law has provided punishment for the parents who seem not to care about the rights and welfare of their children.

Section 20 of the Children Act recommends a penalty for infringing the rights of a child. It states that such a person shall be liable to a term of imprisonment up to twelve months, or a fine not exceeding fifty thousand shillings, or both.

Further, Section 127 provides for a penalty for cruelty to and neglect of children.

Such a person commits an offence and is liable to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding five years, or to both.

Three important things 
The law, looking at the 50-50 analogy you have given does three important things:
It gives women an opportunity to have children without having to subscribe to marriage. Remember, we have sperm banks where women can access and conceive.
It allows those who have sired a child to bring up the child, without the entrapment of marriage.

Single men and women would have an equal say regarding their children.
It has reduced the chances of abuse that some men and women subjected each other to.
A child belongs to the couple just as it belongs to the society, not so much in social circles, but more under the guard and guide of law.

In conclusion, the law has unlocked the wedlock story that had imperilled children and women for a long time.

Children will not suffer not unless those around choose to ignore the law.