29/05/2024
BALANCING THE BEST INTERESTS OF THE CHILD AND PARENTAL RIGHTS AND RESPONSIBILITIES; THE SUPREME COURT DECISION IN PETITION NO. 2 OF 2022
Introduction
The overriding and undeniable position
in law is that when it comes to children matters, the best interests of the
child will always trump over all other rights that come into contact and or
conflict with these interests. However, where a court of law is called upon to
balance the best interest of the child and parental rights and responsibilities
in view of conflicting claims by both parents;
i.
Are there certain key points of
reference that can be used in making a decision that will impact the child?
ii.
Is there a point, based on the parent’s
conduct that the rights of a parent can be extinguished permanently?
iii.
And where there is a Parental
Responsibility Agreement, how can the same be vacated?
The Supreme Court, on the 24th
of February, 2023 rendered a decision in
Petition
No. 2 (E003) of 2022 Mutheu Agatha Khimulu vs Raheem Mehdi Aziz Azad that addressed these
questions. In this piece, we look at the Courts position on each of the
questions posed above.
Whether parental rights and responsibilities can be
extinguished.
The Court was called upon to determine
whether or not, the character and conduct of a parent can be used to extinguish
parental rights. It was the contention of the Petitioner that the rights of a
child to parental care are innate and cannot be extinguished unless it is
proven that the conduct of the parent is against the best interests of the
child. The Appellate Court, in deciding on this matter, had determined that it
was not in the best interests of the child to be left in the care of a parent
who causes him physical and mental harm. The Apex Court rejected this finding
by the Court of Appellate for want of cogent
and sufficient evidence demonstrating that a parent presented a continuous
threat to the child. The Court further observed that there was no demonstration
that the parent posed a continuous
danger to the child.
The Court observed that a child’s
constitutional rights to nationality, parental care, and responsibility which
includes equal responsibility of the mother and father to provide for the child
had been infringed through the prohibition of the mother from initiating and/or
having any contact with the child. The Court held that parental responsibility
is a mandatory ongoing obligation that
attaches to the right of the child as it is the parent who has the
responsibility to ensure that the needs of the child are catered for. The
Child having a right to parental care, it would be in his/her best interests
that he/she is brought up and cared for by his or her parent. This right can
only be denied if it is proved with cogent evidence and valid grounds that a
parent is not suitable or is incapable of taking care of the child.
Factors to be considered when balancing a child’s
best interests and parental rights and responsibility.
The Court in setting down the factors
that are to be considered when balancing a child’s best interests and parental
rights and responsibility, underscored the meaning of the best interests of a
child, observing that ‘the best
interests of the child is a dynamic concept that encompasses various issues
which are continuously evolving.’ This is to mean therefore that the best
of interests of the child are flexible
and adaptable requiring an interpretation based on individual circumstances, personal context, situation and needs.
Whereas parental rights do not trump the
best interests of the child, the same cannot be ignored if they are in the best
interest of the child. The Court therefore generated the following guidelines
to be considered by Courts when balancing a child’s best interest and parental
rights and responsibility;
•
The
Existence of a Parental Responsibility Agreement between the parties;
•
The
past performance of each parent;
•
Each
Parent’s presence including his or her ability to guide the child and provide
for the child’s overall well-being;
•
The
ascertainable wishes of a child who is capable of giving/expressing his/her
opinion;
•
The
financial status of each parent;
•
The
individual needs of each child;
•
The
quality of the available home environment;
•
Need
to preserve personal relations and direct contact with the child by both
parents unless it is not in the best interests of the child in which case
supervised access to the child must be granted;
•
Need
to ensure that children are not placed in alternative care unnecessarily;
•
The
mental health of the parents; and
•
The
totality of the circumstances.
Procedure for vacating a parental responsibility
agreement.
The Supreme Court also pronounced itself
on the process to be followed in vacating a Parental Responsibility Agreement
(PRA) particularly one that has been adopted as an order of the Court. An
important pre-condition to the validity of a PRA is that it must a result of
voluntary engagement between both parties. No party can be compelled to enter
into a PRA. The Court held that a PRA, once adopted as an order of the Court,
remained valid and a claim for its breach by one party only availed the remedy
of legal proceedings to the offended party. The Court noted further that the
breach of the PRA by one party, does not in any way result in the automatic
termination of the Agreement but instead entitles the offended party to
commence legal proceedings against the offending party as one would in a
regular contract.
Conclusion
