Proposed law seeks to rein in deadbeat parents

Parental care and protection of a child will be the shared responsibility of both parents whether married or not if a proposed Bill becomes law.

The proposal seeks to rein in on absentee parents, who sire children but immediately abscond their core duty of custody, care and supporting the child, leaving the burden to either one parent or guardian.

The Children (Amendment) Bill, 2020 by Homa Bay Town MP Peter Kaluma seeks to have the rights of all children applied uniformly, whether their parents are married or not, by aligning the principal law with Article 53 of the Constitution.

Currently, the law appears to apply differently to children whose parents are married and those with single parents.

For instance, section 24 (3) of the law, which the Bill wants amended, provides that where a child’s father and mother are not married to each other, the mother shall have parental responsibility at the first instance. It goes on to say that the father can only assume parental responsibility through a court order.

If not through a court order, the father and the mother may by agreement provide for the father to have parental responsibility over the child.

To remedy the current situation, Mr Kaluma notes neither the father nor the mother of the child should have superior right or claim against the other in the exercise of parental responsibility.

“This Bill seeks to vest equal responsibility for parental care and protection of a child in both the mother and the father whether they are married to each other or not,” Mr Kaluma says.

Align with Constitution

The Children Act was enacted before the 2010 Constitution was promulgated, hence the need to have it aligned with the constitution.

Article 53 (1) (e) of the Constitution provides that every child has a right to parental care and protection.

This includes the right to equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.

“It is important to amend this law as it discriminates against children whose parents are not married from equal parental responsibility,” says Mr Kaluma.  

Mr Kaluma is, however, quick to clarify that equal responsibility in child care as contemplated in his Bill does not mean the extent of taking care of a child on a 50-50 basis but an obligation, which is the ability to be responsible.

Child custody is a sensitive issue, more so when the relationship between parents has broken down. When the parents fail to agree who should stay with the child, a child custody dispute crops up.

But the second-term legislator goes on to clarify that equal responsibility does not necessarily mean a man should stay with the child.

The law provides that if one parent is given the custody of the child, the other one should be  given access, which can be restricted or unrestricted, depending on the unique circumstances of the child.

Usually the mother has the actual or physical custody of very young children where access by the other party may be restricted, for instance if the child is suckling or going to school.

The mother assumes this role to protect the child from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, as well as hazardous or exploitative labour.

However, a mother may lose this responsibility if there are compelling reasons to believe that she is serving a jail sentence, has mental issues, drug addiction and sickness, among others.

If in any way the rights of a child appear threatened, the child is given to the father because he is equally obligated by law to be there for the child.

Legal custody is when all the parents are responsible for the upbringing of the child, where the access to the child by the other parent is unrestricted.

“Child custody usually attracts issues to do with child maintenance and support. It is, however, important for parents to understand that child custody and child support are not the same,” Mr Kaluma noted.

The Bill was first introduced in the House during the life of the 11th Parliament.
It, however, collapsed at the third reading stage after a group of women MPs shot it down, under the impression that its passage would deny them actual custody of their children.

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