January 14, 2020
CLARIFICATION IN RESPECT TO THE PARENTAL CUSTODY CASE AT MWINGI LAW COURTS CIRCULATING ON SOCIAL MEDIA
The Judiciary’s attention has been drawn to a media report carried by a few media houses and also circulating on social media regarding the above case. The video shows a young girl crying and clinging to her father. The narrative perpetuated is that the court gave custody to the mother but the child is seen supposedly resisting to go with her.
From the onset, it is noted that children cases are always heard in camera and Judiciary makes every effort to shield children from publicity and exposure. This is in a bid to safeguard children’s rights and to act in the best interests of the child. This clarification will therefore not give the Case Number or parties’ details.
A review of our court records reveal that the mother in the video, filed a court case at Mwingi Law Courts seeking custody of their daughter who was living with her father. The case went through full trial and judgement was delivered on September 12, 2019. In summary, the court granted equal legal custody for both parents. The mother would stay with the child, but during the school holidays the father would have custody.
The Court observed that since it was September the effective implementation date of the court order would be December 1, 2019 after schools close, so as not to disrupt the minor’s education. The mother was to pick her on December 1, 2019 which would give them ample time to bond and look for a school for her well before January. Come December 1, and the father refused to hand over the child. The mother returned to court on December 15, 2019 to seek orders that he be compelled to do so and also to show cause why he should not be cited for contempt of court.
More push and pull followed, but on Jan 8, the couple re-appeared in court. They were both represented by advocates who requested to be allowed to negotiate outside court. When they returned, they had a written signed consent where both parents agreed to abide by the court orders. The father was to bring the child the following day, January 9, 2020, and a Children’s Officer was to oversee the handover and ensure the girl had the necessary counselling and preparation. It was on the material day, January 9, that the video was taken and uploaded on social media with a view to painting the Judiciary in bad light, and as an attempt to reverse the decision of a court unprocedurally.
The Judiciary makes several observations as follows:
i) That when the court communicated its decision on September 12, 2019 the parties were informed of their right of appeal to the High Court, yet no appeal was filed.
ii) That the Children Officer in Mwingi, who is the expert on children matters, was involved in every step and aspect, to ensure that the decision was in the best interest of the child.
iii) That both parties were represented by advocates, so none of them was legally disadvantaged.
iv) That in addition to the court orders both parties, through their advocates on record, signed a consent to comply with court orders
v) There was no application filed to review the court decision, or even for stay of execution.
In this particular case, the social media narrative seems to suggest the mother was away for many years and therefore should not have been given custody. It is noted that all matters of interest and angles of the case, were canvassed before a competent court. Moreover a notable aspect is that the child actually lives with her parternal grandparents, since her father works over 70 kilometers away, yet her mother is alive, able and willing to stay with her.
The parties did not inform the Court through any of the above stated options that they had any problem with the court decision. Obedience of court orders is a key pillar in upholding of the rule of law. If anyone is dissatisfied with a court decision, the way to go is to appeal to a higher court, but not to defy, castigate the judicial officer or mud-sling the Judiciary.
The Judiciary remains committed to its Constitutional mandate of administering justice to all without fear or favour.
Deputy Director, Public Affairs & Communication