Legal Clinic: I was forced to write ‘single mum’ in my son’s certificate

Hi,

My son will turn three in February 2021. I went to apply for his birth certificate, but the authorities declined to include his dad’s name, opting to use the information on the notification. When I was getting the notification, I was under pressure and I did not have the father’s ID number. His phone was off at the time, prompting me to indicate that I was a single mother. I hoped that it would be possible to change that later. How should I go about it? Please assist.

Let us first remind each other that Section 11 of the Children’s Act in operationalising Article 53 (1-a) of the Kenyan Constitution gives every child the right to a name and nationality. Though the situation you describe sounds simple, it raises multiple issues, not necessarily legal, but concomitant for a good law to be seen effective.

Quasi-legal document

It was unethical and a contradiction of Maternity Hospitals’ Standard Operating Procedures, if the nurses or any medical staff pressurised you to omit the name of your son’s father on the birth notification.

This action injured Article 47 of the Constitution that calls for fair administrative actions since the birth notification is a quasi-legal document that alerts government administrators of the growing population in the country. The naming of a child is parental business, irrespective of their circumstances and no one should interrupt or influence.

Second, the employees of such a facility are by training supposed to create an environment in which labouring mothers find peace and can keep the sanity of mind since some conditions such as peripartum depression (depression that occurs during pregnancy or after childbirth) could be exacerbated by uncertain and stressful moments.

Late registration rules

The application for your son’s birth certificate is considered late registration. Section 8 of the Births and Death Registration Act directs the registrar of births to register any such birth that is over six months old on receiving written authority that is guided by late registration rules and with evidence of prescribed fee payment from the Principal Registrar.

Therefore, for your son to access a birth certificate you will be required to complete form 5 as provided for under the late registration rules. Further at Section 14 of the same Act, the Registrar is permitted to register birth of any child, even with an altered name before the period of two years elapse.

These two scenarios are viewed as first or original registrations. In your son’s case, the name is not only altered, but the registration being sought is stretched outside the two-year period. This requires an additional process.

Deed poll

You and the father of your son will be required to complete a deed poll, which is a binding declaration of intention under oath to change the name. The reason as to why you are filing a deed poll is informed by two things: one, you are adding the name of the father to the birth application documents: and two, it is being done after two years have elapsed.

As parents, you will do this on behalf of your son because he is a minor. This process is guided by Section 3 of the Registration of Documents (change of name) regulations. Upon completing the deed poll, you will present it, together with certified copies of your national identity cards, birth notification, an affidavit from someone who knows you for at least ten years and, therefore, has knowledge of the child, or a chief’s letter acknowledging the facts of the parents and the child.

On receiving these documents, the register may decline the added name, if he or she thinks it connotes vulgarity, use of prohibited drugs, offence, crime, ridicule to state agencies, departments or people, religious hatred, and racial discrimination, besides, falsely implying conferment of title, inherited honour, or academic award.

Right parentage

However, should the registrar find favour including the ability to pronounce the name, he will direct that the name is gazetted in the Kenya Gazette for a period of 30 days before the name can be legally recognised and subsequently used by the applicant, in this case, your son. It is after this process that you will now apply for a birth certificate to bear the names you prefer for your son, including the surname.

Please remember that the law focusing on children is larger than their bearers. Article 53 (2) of the Constitution, they have a right that directs every state, societal and individual action to be motivated by the principle of their best interests. It is in the best interest of your son to have the right parentage on his birth certificate.