A Landmark Decision Upholding the Best Interests of the Child: The Supreme Court's Decision in MAK v RMAA & 4 others [2023] eKLR

A Landmark Decision Upholding the Best Interests of the Child: The Supreme Court's Decision in MAK v RMAA & 4 others [2023] eKLR

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In a significant decision that reverberates throughout Kenya's legal landscape, the Supreme Court delivered a momentous decision, providing essential guidelines for balancing a child's best interests with the enforcement of parental rights and responsibilities. The case of MAK v RMAA & 4 others (Petition 2 (E003) of 2022) [2023]eKLR focused on the status of a Parental Responsibility Agreement (PRA) entered into at the High Court of Kenya, which was disregarded by the High Court of England when making custody orders concerning the child in question. While the lower courts in Kenya aligned their judgments with the English Court, the Supreme Court overturned their decisions, asserting that the best interests of the child were not adequately considered under Kenya's legal system. Moreover, the Supreme Court outlined comprehensive guidelines that should inform the delicate balance between a child's best interests and parental rights and responsibilities.

The Supreme Court arrived at several crucial findings in this case. Both superior courts emphasized the enforcement of parental rights vis-à-vis the rights of the child. At the heart of the appeal was the question of parental rights, the child's best interests, and the right to a fair hearing. The relevant legal provisions outlined the procedure for vacating a PRA, which gained additional force when adopted as a High Court order. It was crucial to note that the PRA was voluntarily entered into by both the appellant and the 1st respondent, and neither party had taken steps to vacate it.

The legal framework governing children's rights, including the Constitution,the Children Act of 2001 (repealed), the Convention on the Rights of the Child (CRC), and the African Charter on the Rights and Welfare of the Child, underscored the centrality of the child's best interests. The child's best interests were determined based on the specific circumstances of the case, placing the principles of survival, protection, participation, and development above all other considerations. Article 53(1) of the Constitution enshrined these rights, and they were all equally important in safeguarding the child's best interests. The paramount consideration had to be the child's well-being, and parental rights had to be balanced against this aspect. No right should be compromised through a negative interpretation of the child's best interests

Furthermore, the child's constitutional rights to nationality and parental care, including equal responsibility of both the mother and father in providing for the child, were infringed upon. Sections 6(1) and (2) and 24(1) of the Children Act (repealed), as well as articles 9 of the CRC and 19 of the African Charter on the Rights and Welfare of the Child, clearly affirmed the child's right to parental care. It was in the child's best interests to be brought up and cared for by their parent unless cogent evidence and valid grounds were presented to prove a parent's unsuitability or incapacity. A child's upbringing was shaped by the society they grew up in, and having both a mother and father involved in their life provided significant social, psychological, and health benefits.

The stability of maintaining a relationship with both parents ensured security and greater opportunities for the child's success. Even in cases where limited access to a parent was warranted, the court should order supervised access. The Supreme Court, as the custodian of the Constitution, had the duty to ensure that the child had access to parental care and protection, as enshrined in the Constitution.

In cases involving the best interests of a child, the concept requires a flexible and adaptable approach that takes into account the specific circumstances, context, and needs of the child. The Supreme Court of Kenya has outlined guidelines aimed at striking a delicate balance between a child's best interests and parental rights and responsibilities. These guidelines encompass factors such as the existence of a Parental Responsibility Agreement (PRA), the past performance of each parent, their ability to guide and provide for the child's well-being, the wishes of a capable child, financial status, individual needs, the quality of the home environment, the preservation of personal relations and direct contact with both parents, the avoidance of unnecessary alternative care, the mental health of the parents, and a holistic consideration of the circumstances.

Through this landmark decision, the Supreme Court highlights the importance of prioritizing a child's welfare while recognizing and respecting the rights and responsibilities of parents.

It was emphasized that protracted court battles between parents were never in the best interests of the child. Such battles often overlooked the psychological and mental harm inflicted on the child in the process. In the present case, the appellant had been deprived of direct contact with the minor since August 7, 2015, which contravened Kenya's legal regime on the rights of the child. As the child reached the age of eighteen, they were now at liberty to choose with whom they wanted to live and whether they wanted to maintain contact with the appellant.

The Supreme Court recognized its constitutional obligation to ensure that the child had access to parental care and protection as guaranteed by the Constitution. The concept of the child's best interests aimed at securing the full and effective enjoyment of all the rights recognized in the Constitution, the Children Act, the CRC, and the African Charter on the Rights and Welfare of the Child. These rights were essential for the holistic development of the child. In making decisions that impacted the child, courts were duty-bound to consider all circumstances affecting the child, guided by the comprehensive guidelines outlined above.

In conclusion, the Supreme Court's ruling in MAK v RMAA & 4 others [2023] eKLR marks a landmark decision that upholds the best interests of the child in Kenya. In overturning the lower courts' decisions, the Supreme Court reasserted the importance of considering the child's well-being and outlined guidelines to guide the delicate balance between a child's best interests and parental rights and responsibilities. This ruling serves as a significant milestone in protecting and promoting the rights of children in Kenya's legal system, reinforcing the principles of fairness, equality, and the paramount consideration of the child's welfare.