The Court of Appeal has handed a nine-year-old girl back to her grandparents in an intriguing custody battle with her father who has asserted his right to raise the child as her only surviving parent.
The minor was born in Kenya on September 11, 2011. Her mother later moved to England where she lived with the girl’s father, who is a British national.
After the couple divorced in 2015, the woman returned to Kenya and moved in with her parents. Before her death in 2017, she left a will dated June 8 in which she placed her daughter under the custody of her parents.
The aggrieved father moved to court where he argued that his rights as the girl’s surviving parent ought to take precedence over his ex-wife’s final wishes, and that she should be handed over to live with him in England.
The grandparents, however, hung onto their daughter’s last words that she wanted nothing to do with her former husband hence her decision to appoint them as the daughter’s guardians.
Justices Wanjiru Karanja, Daniel Musinga and Patrick Kiage suspended High Court orders requiring the grandparents to hand the minor over to her father until the appeal they filed is heard and determined.
“It would not be in the best interest of the child for a potentially disruptive scenario to unfold. The harm of it would far outweigh the inconvenience the respondent might suffer in waiting for the appeal to be determined on merit. The upshot is that we find the conditions for grant of stay of execution satisfied and we grant the motion as prayed,” they ruled.
The maternal grandparents had first moved to the magistrate’s court seeking orders barring their former son-in-law from leaving with the minor. He in turn filed a countersuit seeking custody of the minor.
Senior Resident Magistrate H Mbati tried to strike a middle ground by allowing the grandparents to have her until her 10th birthday before relinquishing custody to the father.
The father, on the other hand, was required to bring the girl to Kenya during the first half of all school holidays to spend time with her grandparents. The court also ordered that he should allow his daughter to communicate with her grandparents either on phone, Skype or WhatsApp video calls every day for one hour after 6pm.
Both parties were aggrieved by this arrangement and they appealed before High Court Judge Lydiah Achode.
Abdicate duty
The grandparents complained that the court had ignored the fact that the father had abdicated his duty as a parent and had no meaningful participation in the minor’s life.
The man argued that there were no compelling reasons to demonstrate that he could not provide for the child. He said it would be impossible to strengthen his relationship with his daughter as long as she remained in Kenya.
While acknowledging that there was a toxic relationship between the grandparents and the child’s father, Justice Achode noted that the rights of the surviving parent surpassed those of the grandparents and granted custody of the child to her father.
“Dr Kieke Grootenhuis (a psychologist) recommended that they should establish a conflict-free, trusting and neutral co-parenting set-up in the best interest of the child. I am in total agreement that this is what would be in the best interest of the child.
“However, until this is done, the child is at risk of being psychologically affected by the conflict between her father and her grandparents in which she would appear to being called upon to choose one side over the other. No child should ever have to bear such a burden,” Justice Achode said.
The judge then left it to the father and the grandparents to agree on how they would access the minor after he took custody.
But the grandparents moved to the Court of Appeal where they argued that they have been the child’s primary caregivers since her mother passed away.
“She is still undergoing bereavement counseling and has settled well in Kenya where she attends school. It would not be in her best interests to disrupt her life by permanently relocating her out of Kenya,” they said.