MAK V RMAA & 4 Others (Petition 2 (E003) Of 2022)  KESC 21 (KLR) (Civ) (2 March 2023) (Judgment)
|Petition 2 (E003) of 2022||02 Mar 2023|
Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Supreme Court of Kenya
MAK v RMAA & 4 others
MAK v RMAA & 4 others (Petition 2 (E003) of 2022)  KESC 21 (KLR) (Civ) (2 March 2023) (Judgment)
Guidelines to consider when balancing a childs best interests vis--vis the enforcement of parental rights and responsibilities.
The appellant and the 1st respondent married under the African Christian Marriage and Divorce Act (repealed) and were blessed with a son. The marriage between the appellant and 1st respondent broke down and the appellant petitioned for its dissolution. Prior to the dissolution, the parties had entered into a Parental Responsibility Agreement (PRA).
In 2014, the appellant, who was living with the minor in Kenya, moved to York in the United Kingdom to pursue a masters degree in Law. The 1st respondent gave the appellant his consent for her to be accompanied by the child to the United Kingdom. The parties turned on one another. It was the appellants case that the 1st respondent used his influence in London and falsely accused her of having intentions to injure the child with the aim of having her arrested. On the other hand, the 1st respondent deposed that, as a consequence of complaints made to him by the child, he contacted the National Society of Prevention of Cruelty to Children in the United Kingdom and they sent social services to speak to the minor. During all those incidents, the appellant averred that she succumbed to illness causing her to relocate back to Kenya. The appellant applied for a childs arrangement order, in the United Kingdom for the child to live with her. The 1st respondent cross applied for a child arrangement order that the child would live with him.
The appellant also filed suit at the High Court that sought for the PRA to be adopted as an order of the court with the High Court granting the order sought. At the time the order to adopt the PRA had been granted, the 1st respondent had moved from the United Kingdom and was residing in Tanzania, but the child was still in boarding school in the United Kingdom. Armed with the order from the High Court adopting the PRA, the appellant went to the High Court at Dar-es-Salaam in Tanzania and sought to have the order enforced under the Reciprocal Enforcement of Foreign Judgments Act (cap 8, RE 2002) in Tanzania. The Tanzanian High Court found that, under section 2 of the Judgment Extension Act (cap 7, RE 2002), decrees from Kenya that could be executed in Tanzania were only those that related to debts, damages or costs and that the parental responsibility agreement did not fall in either of those categories.
The Family Court in United Kingdom High Court of Justice Family Division determined that the minor was habitually resident in England and Wales, the minor was not habitually resident in any other jurisdiction, whilst the child continued to be habitually resident in England and Wales, the English Courts retained jurisdiction to determine any issue in respect of parental responsibility. The English Court also recorded that the appellant had on at least one occasion hit her son causing him physical harm; that the appellant had been charged with the criminal offence of child cruelty and a criminal trial was pending; that the appellant had failed to attend two hearings in respect of the criminal charges and a warrant had been issued for her arrest. The child was declared a ward of the court and needed permission of the court to travel out of the English Courts jurisdiction, custody was also awarded to the 1st respondent.
Subsequently the appellant filed a petition at the High Court of Kenya in which she alleged that her constitutional rights and freedoms and that of the child had been contravened. She claimed that the 1st respondent caused the child to be admitted as a ward of the United Kingdom Court which infringed on the childs right to Kenyan nationality and citizenship. The High Court determined that the 1st respondent had not infringed or violated any of the fundamental rights and freedoms against the appellant or against the child. Further aggrieved the appellant filed an appeal at the Court of Appeal on the same grounds as in the High Court which was also dismissed.
The appellant filed the instant appeal before the Supreme Court where she contended that the decisions of the English Court and of the Kenyan High Court and Court of Appeal were against the best interest of the child and were derogation from the PRA which was in force.
- Whether issues pertaining to parental access of a child, custody of a child, best interest of the child, parental rights after a child has attained the age of eighteen (18) years warranted an appeal to the Supreme Court as matters involving the interpretation or application of the Constitution
- What was a Parental Responsibility Agreement?
- Whether the High Court and Court of Appeal properly applied the decisions issued by the Family Court in the United Kingdom in arriving at their determination.
- What guidelines should courts consider when balancing a childs best interests vis--vis the enforcement of parental rights and responsibilities?
- Whether Kenyan Courts were bound by a decision of the High Court of England where the English Court pronounced itself on custody and parental responsibilities and the same parties were before the Kenyan courts.
- Whether the rights and responsibilities issued by the Kenyan High Court in a Parental Responsibility Agreement could be extinguished by a foreign court without considering Kenyas laws for the best interests of the child.
- Whether the High Court and the Court of Appeal deferred to the English Court by disregarding Kenyan Law as well as a High Court order that was in force while determining the matter that was before them.
- The running theme in both superior courts was the enforcement of parental rights vis--vis rights of the child. The instant appeal touched on parental rights, the childs best interests and the right to fair hearing. The instant matter was within the Supreme Courts jurisdiction under article 163(4)(a) of the Constitution.
- The determinations made by the superior courts relied on the findings by the English Court. However, the English Court did not consider the significance of the Parental Responsibility Agreement (PRA) and the consequences of its violation. Judgments from foreign courts did not fall within the purview of the issues for consideration on judicial notice under the Evidence Act. The Court of Appeal erred in placing credence on the findings of the family court in England which largely disregarded the PRA; an agreement that could not be violated without consequence. The PRA was a binding agreement between both the appellant and the 1st respondent and could only be terminated by the High Court.
- There were express provisions on the procedure to follow to vacate a PRA. The PRA attained more force when it was adopted as an order of the High Court. The PRA was entered into voluntarily by both the appellant and the 1st respondent and neither of them had made any steps towards vacating it. The English Court alluded to the PRA and dismissed it ever so casually, without taking into account the Kenyan legal regime surrounding the PRA. Specifically, it ignored Kenyas article 53 of the Constituion on the rights of Children, the Children Act and case law with regard to PRAs. Most importantly, it overlooked the fact that there was a legally binding court order on the PRA. Those liberties could not be taken by Kenyas superior courts.
- The English Court made orders on the PRA that disregarded the sovereignty of the Kenyan legal system over its own nationals. The superior courts ought not to have succumbed to the same temptation. They should have had regard to section 26 of the Children Act (repealed). It was imperative for them to interrogate the status of the PRA seeing that High Court had adopted it as an order of the court. Once adopted as an order of the court, it could not be violated without consequences. If one parent violated the agreement, then they were liable to legal proceedings. Not being vacated, the PRA remained a binding order of the High Court until the child attained eighteen years of age.
- The superior courts erred by accepting and relying on the English Courts decision on the PRA. The error of their finding was compounded by the fact that the Childrens Act had specific provisions on how a PRA was vacated. It was improper for the superior courts to rely on the Englishs court determination which made no reference to Kenyan laws, the Convention of the Rights of the Child (CRC), and the African Charter on the Rights and Welfare of the Child (ACRWC). That was the legal regime by which the PRA ought to have been considered. At the very least, the trial court ought to have heard the parties to the PRA before invalidating it. English courts orders of August 7, 2015 did not supersede the PRA.
- The childrens rights legal regime (the Constitution, Children Act (repealed), CRC, and the African Charter on the Rights and Welfare of the Child) emphasized the centrality of the best interest of the child. The best interest of the child was determined by the circumstances of the case as they specifically related to the child. That comprised the principles that prime the childs right to survival, protection, participation, and development above other considerations and included the rights contemplated under article 53 (1) of the Constitution. The focus had to be on the child and what was best for the child.
- There was no hierarchy in the childrens rights provided for under the Constitution. All the rights provided under article 53 were in the childs best interest. The best interests concept was further strengthened by being the paramount consideration. The best interests of the child were to be the determining factor when making a decision on the child. It was against that aspect that parental rights ought to be balanced. No right should be compromised by a negative interpretation of a childs best interest. The record did not provide any cogent evidence of the English Court balancing between parental rights and the best interest of the child.
- The court could not tell which legal standards were applied to arrive at the conclusion that the appellant was an unfit mother because the superior courts did not test the evidence and no warrant of arrest was in the record as evidence.
- The appellant produced as part of her testimony two medical reports by paediatricians from the United Kingdom and Kenya on the child which revealed that there was no indication of any form of abuse against the child. Although the English Courts did not find it necessary to determine each of the allegations made by the child, the superior courts erred by not considering and testing the evidence tendered before them by the appellant on the allegations of abuse. The instant court was unconvinced that the appellant received a fair hearing. Nothing on the record indicated whether the appellant was heard at all on that issue. Nothing was indicative of whether the English or Kenyan courts considered the belt-beating discipline: excessive or otherwise. It remained unproven whether the appellant posed a continuous danger to the child.
- The record reflected an email dated July 21, 2013 from the 1st respondent expressing gratitude to the appellant for her wonderful mothering skills. There wasnt sufficient cogent evidence on record to lead to the finding that the appellant was an unfit mother liable to zero direct contact with the child. The appellate court erred in endorsing the High Court decision which purported to extinguish the appellants parental rights and responsibilities.
- The Supreme Court could not endorse the decisions of the superior courts which embraced the decisions of the English court because the English court did not consider the totality of the circumstances of this case in the following ways. Firstly, the English court declared that the child was habitually resident in England and Wales while ignoring that he was first and foremost a Kenyan national with attendant rights. He was deprived of a country of his own and of its protection and support socially and culturally. The minor was made a ward of an alien court when he was a Kenyan national. In adopting the findings, the Court of Appeal did not consider that that was in contravention of the rights enshrined in article 53(1)(a) of the Constitution and the CRC.
- The childs constitutional rights to nationality, parental care, and responsibility which included equal responsibility of the mother and father to provide for the child whether they were married to each other or not had been infringed. That finding was also in light of the English courts orders that the 1st respondent had care and control of the child. The mother was to have no direct contact with the child. The father could determine every aspect of the childs life: where he went to school, lived, or holidayed. The same courts determined that child could ably articulate himself on the degree of integration in a social and family environment (how he saw his connections, social relationships, and support system). It was ironic because his perspective would largely be in the lens of the 1st respondent. He had been deprived of direct contact with his other parent, so even though his views and desires were heard, he could not have had a balanced assessment of the situation.
- It was evident from sections 6(1) and (2) and 24 (1) of the Children Act (repealed), article 9 of the CRC and article 19 of The African Charter on The Rights and Welfare of The Child that the child had a right to parental care and it was in the best interest of the child that he was brought up and cared for by his or her parent. That right could only be denied if it was proved with cogent evidence and valid grounds that a parent was not suitable or was incapable of taking care of the child. A child needed both of their parents which was their right, especially where a parents incapacity had not been proven as in the instant case.
- The society in which children grew up shaped who they were. Having both a mother and father involved in a childs life could provide significant social, psychological, and health benefits. The stability of having a relationship with both parents could provide security and greater opportunities for children to find their own paths to success. Even if circumstances may warrant limited access to a parent, a court should order supervised access. The Supreme Court had the constitutional obligation to ensure that the child had access to parental care and protection as enshrined in the Constitution.
- The concept of the childs best interest was flexible and adaptable. It should be adapted and defined on an individual basis, according to the specific situation of the child concerned considering their personal context, situation and needs.
- Parental rights did not trump the best interests of the child. However, parental rights could not be ignored if they were in the best interests of the child. The concept of the childs best interests was aimed at ensuring both the full and effective enjoyment of all the childrens rights recognized in the Constitution, the Children Act, the CRC, and the African Charter on The Rights and Welfare of The Child. They were all geared towards the holistic development of the child.
- Courts while making a decision that would impact the child were mandated to consider all circumstances affecting the child. The following guidelines ought to be considered when balancing a childs best interests and parental rights and responsibilities:
- the existence of a PRA between the parties.
- The past performance of each parent.
- Each parents 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 was 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 was not in the best interests of the child in which case supervised access to the child was to be granted.
- Need to ensure that children were not placed in alternative care unnecessarily.
- The mental health of the parents.
- The totality of the circumstances.
- It was never in the best interest of a child when the parents were engaged in a protracted court battle. Court battles relating to children were more often than not very selfish in nature and it was easy to overlook the psychological and mental harm done to the child in the process. In the instant matter, the appellant had not had direct contact with the minor since August 7, 2015. That was in contravention of Kenyas legal regime on the rights of the child. The child turned eighteen (18) on February 12, 2022. As such, the child was at liberty to choose whom to live with and whether or not he wanted the see the appellant.