A ruling by a Kakamega High Court Judge has tightened the screws on deadbeat fathers by revoking the clause that gave them leeway to either accept or reject responsibility for a child born out of wedlock.
In his ruling that found sections of the Children's Act unconstitutional, the Justice Jesse Njagi stated that a man cannot escape parental responsibility because of unemployment adding that in the event the partner dies, he must take full responsibility.
"Parental responsibility is automatic and self-activating on parents upon the birth of a child and fathers cannot have the discretion of either rejecting or accepting that responsibility.
"The automation of parental responsibility upon the birth of a child and the responsibility is not left to the discretion of either the father or mother," Justice Njagi stated.
The case was filed by Federation of Women Lawyers (FIDA) and a single mother where the judge heard that the man had refused to acknowledge the children as his own declining to have his name inked on their birth certificates.
The father of the child will now have to consent before any decision is made on giving a child up for adoption in addition to the child having an automatic right to have a father's name.
According to Section 2 (B) of the Children Act, which the judge invalidated, if a man does not acknowledge paternity of a child or has not been contributing to the maintenance of the child, that child cannot be considered a relative to him.
"This is discriminatory on the children born outside wedlock on the ground of birth. This violated the right of equal treatment before the law to children born outside wedlock.
"It is in the best of a child for the child to be recognised as a relative of his father's relatives whether the parents are not married," the judge ruled.
The judge differed on the Act's provision for transfer of parental responsibility upon the death of either the mother or the father.
"This is against the principle of equal responsibility of parents, which right cannot be qualified for reason that the father has or not acquired parental responsibility.
"This implies that parents of children born out of wedlock have to assume parental responsibility before they are ordered to pay maintenance towards their children. A parent cannot opt out of parental responsibility," Justice Njagi ruled.