DNA tests: Child’s rights override parents privacy concerns

Not so long ago, DNA was not a term in every day conversations. In recent times, however, it is one of the most frequently used scientific terms in the Children's Courts. Simply put and the way we understand it in the Children's Courts, DNA is the test used to establish biological relationships.

You see, a child's right to maintenance is dependent on two main factors; whether one is a biological parent or  has assumed parental responsibility over the child. The Honourable Magistrates in the Children's Court will easily tell you as follows; they are the busiest magistrates in Kenya and they will be right; that most of the cases they handle involve parental responsibility; that parental responsibility includes legal, physical and financial responsibility over a child; that as much as there are many disputes over legal and physical parental responsibility, there are many more disputes over financial responsibility over children.

There are many fairly straight forward cases where the question is how much each parent should pay for the child's maintenance. In those cases, the question may be how much each parent should contribute. Though in law both parents have an equal responsibility to contribute to the child's maintenance, in practice each case depends on its own facts so that the financial ability of each parent determines what that parent contributes.

In cases where both parents have equal or sufficient capacity to share the child's maintenance equally, then the courts will usually order a 50;50 sharing ratio. In situations where parents have very unequal financial capacity, then the one with the greater capacity will usually be ordered to shoulder more financial responsibility.

And then there are those cases where one parent, mostly the father, denies being a biological parent of the child. Since 2010 when the Constitution came into force, a child is entitled to maintenance from his parents whether they are married or not. In brief all that needs to be proved is whether one is the biological parent of the child and the responsibility to maintain will come into place.

Normally, a person claiming the other is the biological parent of the child will file an Affidavit setting out supportive facts as they may have such as that the child was conceived. If the person sued denies such relationship, the Children's Court will be inclined to order DNA testing. When the results come out positive, the question for the court moves from whether the person sued is a parent of the child to how much he will provide for the child.

As cases of maintenance and denial of paternity have increased, so have the orders for DNA. There have also been appeals from the Children's Courts against DNA orders. Some parties have even gone to the Constitutional Division of the High Court seeking the court to declare the order to submit themselves to DNA testing is against their constitutional right to privacy and dignity.

However, the courts have favoured the position that the right of a child to parental care has priority over the right of the alleged biological parent to privacy and dignity; that the need to conclusively determine the paternity of the child outweighs any inconvenience or intrusion to the alleged biological parent's alleged right to privacy.

DNA testing is available locally or overseas as parties may choose. The Government Chemist offers the service at a cost of about Sh5,500 per person. There are several other local private providers. The test usually involves the father, mother and child.  

It must be remembered that even a parent who is not a biological parent may be ordered to provide for a child where they have assumed parental responsibility over the child.