My child’s prominent dad doesn’t want his name on birth certificate

Dear Vivian,

I am a mother of a two-year-old child who was born out of wedlock. The child's birth certificate does not include the father’s name. This is because he said he didn’t wish to be included in any document involving the child. He is highly esteemed in society and his name would help my daughter get privileges and properties in future. Are there legal avenues available for me to include his name on the birth certificate without his consent?

Susan Kibiro, Kiambu County

Dear Susan,

Every child has a right to a name and nationality and as far as possible, the right to know and be cared for by their parents.

In Kenya, the registration of births is governed by the Births and Deaths Registration Act. This law states that the registration of a child's birth should include the particulars of both parents, if known. Section 12 of the Act, however, specifies that no person shall be entered in the register as the father of any child except either at the joint request of the father and mother, or upon the production of evidence that the father and mother were married according to law or in accordance with some recognised custom.

In your case, where the father explicitly requested not to be mentioned on the birth certificate, it creates a complex situation as the Act requires joint consent. The Children Act also plays a crucial role in matters concerning children. While it doesn't specifically address the inclusion of a father's name on a birth certificate without consent, the overarching principle of acting in the best interests of the child could be a guiding factor.

There was a significant development in this area that might be relevant to your case. In a notable court case; Petition 484 of 2014, the courts declared Section 12 of the Registration of Births and Deaths Act to be a gross violation of articles 27, 28 and 53 of the Constitution that ensure equality, freedom from discrimination, human dignity and safeguard the rights of children respectively.

The court also ruled that all children born out of wedlock shall have the right and liberty to have the names of their fathers entered in the birth registers provided paternity is proved through a DNA test. This decision signifies a shift in the legal landscape, recognising the rights of children born out of wedlock to have their fathers' names included in the birth registers.

As a result, it would be advisable for you to consult with a family lawyer or child rights organisations to explore the possibility of relying on this court decision to include the father's name on your child's birth certificate without his explicit consent.

While the legal framework initially presented challenges, recent court decisions have expanded the rights of children born out of wedlock. These legal developments have sought to prioritise the best interests of the child.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).