Should my children’s step-dad dictate their religion?

My husband wants the children to join Islam (he is their step-dad). Their biological dad is opposed to this. Who has legal right to influence the children’s religion?

Dear reader,

First, let it be remembered that children are friends of the law. Article 53, Clause 2 of the Kenyan Constitution directs that every act, programme, decision, and planning by a person or institution, even courts dealing with children, which may include co-parenting that you and the biological father of your children must engage, requires their best interest in content and context.

Article 32 of the Constitution stipulates that every person has a right to freedom of conscience, religion, thought, belief, and opinion. Similarly, no person shall be compelled to act or engage in any act that is contrary to the person's belief or religion. Making inferences from the unsaid part of your text, there is a presumption that your children must have had an earlier religious orientation before you entered your current union. On the assumption that we are Kenyans, since we refer to this country's Constitution, most ceremonies that welcome children into homes are religious. Therefore, letting the stepfather of the children subsume the right of the biological one is in itself an insult to Article 32, herein mentioned.

The child's best interest is, in its entirety, what amounts to their dignity in Article 28 of the Constitution. This is executed by both parents ensuring their child's right to parental care and protection, which includes equal responsibility of the mother and father to provide, as sanctioned in Article 53 Clause (1) paragraph (e), is not threatened by any other circumstance, especially the marital status of the parents.

Section 15 of the Children's Act stresses the children's right to freedom of religion subject to appropriate parental guidance and, in addition, it being in their best interests. The child's age will definitely play a vital role in this specific context. The section goes further to place an exception to this provision - the exception being that this religious guidance and education shall not hinder or limit the children's access to their basic rights and fundamental freedoms guaranteed by the Constitution, the Act, or any other law.

Section 110 of the Children Act 2022 illuminates further the force of the law that places joint maintenance of children on the mother and father, irrespective of whether they were married to each other at the time of the child's birth and have subsequently not married. This section speaks to the heart of your dilemma: despite their father not living with them, he legally possesses joint maintenance rights of his children, which automatically gives him legal dominance in all matters requiring decision-making concerning his children. The law does not automatically apportion legal guardianship to step-parents unless it is court-ordered or they have legally adopted the stepchildren. Thus, the biological father has the legal right to influence the children's religion.

The element of religion in a child's growth and development has been emphasised in several sections of the law, especially where the specific child is not in the custody of their biological parents. Section 145 Clause 12 paragraph (f), where a child needs care and protection, it is provided that the county government entity or charitable children's institution shall, when it appears to be in the interests of the child, endeavour to secure that the care of the child is assumed by a parent or guardian or a person who has parental responsibility for the child by a relative or friend who shall, if possible, be of the same religion, race, tribe or clan as the child.

Similarly, Section 157 Clause (1) paragraph (a) states where the Court makes a care order directing that a child be committed to a rehabilitation school on being found guilty of an offense, the committal order shall specify the grounds on which the order is made and shall— (a) contain a declaration as to the age and religion of the child. Lastly, Section 23 Clause (1) paragraph (g) provides that no person shall subject a child to any other cultural or religious rite, custom, or practice that is likely to negatively affect the child's life, health, social wellbeing, and dignity, physical, emotional, or psychological development. I implore you to recall what Barak Obama once said "Any fool can have a child. That doesn't make them a father. The courage to raise a child makes them one."

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