Justice Eric Ogolla and Justice Thande Mugure at the Mombasa High Court in a past case. [Kelvin Karani, Standard]
Mental fitness should be among grounds considered for denying or allowing a parent the custody of a child, the High Court has ruled.
Justice Mugure Thande (pictured) has consequently directed a Children’s Court faced with the question of a parent’s mental illness to consider calling in an expert witness.
Alternatively, the court can order a medical test to determine whether one is fit to be allowed custody of a child, Justice Mugure said.
The ruling emanated from a case between a woman, codenamed RTMNK, and the father of their child codenamed AOK. The woman has questioned the mental capability of the man.
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During the case, a question emerged as to whether the Children’s Court has powers to determine one’s mental capacity in a custody case.
“The Children’s Court which has been faced with the question of the mental illness of the respondent (AOK) will consider the medical report filed by the respondent. The court may also call in an expert witness who will assist the court to assess whether the respondent’s mental illness is a continuing condition and if and how it affects his fitness as a parent,” ruled Justice Mugure.
The judge noted RTMNK and AOK had also consented that the lower court should settle their dispute since the Children’s Court has powers to make any orders to take care of the minor’s interests.
RTMNK argued that the Mental Health Act grants powers to compel a person to undergo a mental test to judges only, not magistrates.
“The Children’s Court lacks jurisdiction to compel the respondent to undergo a mental health assessment. The basis of this contention is that Section 2 of the Mental Health Act defines “court” as the High Court,” she argued.
RTMNK and AOK, though not married, are parents of a two-year-old. The woman filed the case last year and is seeking an order forcing the man to undergo a mental assessment.
She said that she met him in 2018 and about three months to the birth of their child, he moved into her house. She said AOK would often disappear from home for long periods without communicating, and would not satisfactorily explain where he had been when he returned.
“This bizarre behaviour caused me distress as I would always get worried about AOK’s safety,” she testified.
According to RTMNK, the man never contributed to the minor’s upkeep. She said they agreed to relocate to Canada but he did not give consent. She claimed that the man suffers from various mental disorders that make him unfit to be a parent.
Due to his alleged condition, RTMNK argued, that granting of shared, actual or legal custody of the child would result in serious harm to the child.
She argued that it was important to settle the mental status of the minor’s father.
AOK denied that he suffers from acute psychiatric disorders and stated that he is mentally fit to care for the minor, and has no intention of harming their son.
He admitted that after losing his father in 2017, he suffered from depression for which he received treatment in 2020.
