DNA TESTING TO BE ORDERED WHERE IT IS IN THE BEST INTEREST OF THE CHILD

I found this judgment very interesting ad thought it wise to share. As you may all know a DNA test cannot be forced on a person and where the person is a child, the guardian can withhold permission to conduct the test. However, this judgement seems to imply that a court may order for a DNA test to assist it in the enforcement of Article 53 of the Constitution. Read through.

 

In the recent case of C.M.S vs I.A.K suing through Mother and Next Friend C.A.O., Constitutional Application No. 526 of 2008, Mumbi Ngugi J, at the High Court of Kenya at Nairobi held that in determining a paternity dispute, the court must of necessity weigh the competing rights of the child and the party alleged to be the biological father. The right of the child to parental care takes precedence particularly in light of the cardinal constitutional principle set out in Article 53 (2) that in such matters, the paramount consideration is the best interests of the child.

The facts of the case were that on July 17, 2008, an order compelling the petitioner to undertake a DNA test was issued by the Children's Court in Nairobi after the petitioner had denied paternity of the child. Aggrieved by that order, the petitioner petitioned the constitutional court for a declaration that the orders made were unconstitutional and hence sought the orders to be set a side.

 

The petitioner's argued that the order was unconstitutional as it violated the his freedom of conscience contrary to Article 32(1) of the New Constitution and also contrary to section 70(b) and 78(1) of the old constitution. According to the petitioner, the order infringed his rights as he had made it very clear to the subordinate court that he was not ready for such a DNA test and he would suffer mental anguish and trauma if he was subjected to a test that he was not ready for. His view was that the issue of a DNA test was irrelevant to the determination of the case before the Children's Court because, under the Children Act, section 24(2), the most important matter was parental responsibility. He invited the court to take judicial notice of the fact that the Children Act had not been amended hence section 24(2) with regard to parental responsibility was still applicable. It was the petitioner's case that he was not the father of the child respondent in the petition, and even if he was, he had no parental responsibility under section 24(2) of the Children's Act.  

 

The respondent on the other hand argued that the petition was incurably defective as the petitioner's issue was against an order issued by the Children's Court, but neither the Children's Court nor the Attorney General was a party to the petition.  The respondent was only an Interested Party as she was the plaintiff on behalf of the child in the case before the Children's Court. 

In addition the respondent argued that the DNA test was ordered so as to assist the court as the issue of paternity was important in the children's case. He referred to Article 53(1) (e) of the Constitution which imposed parental care and responsibility on both the mother and father of a child whether they were married to each other or not. It was the respondent's submission that Article 53(1), took away the position of the petitioner with regard to section 24(2) of the Children Act which could only apply to fathers who were not biological fathers who had acquired parental responsibility.  

It was further argued that for biological fathers, such responsibility was automatic and by virtue of Article 2 of the Constitution, the Children Act could not supersede the provisions of the Constitution. The respondent pointed out that Article 2(4) was clear that any law inconsistent with the Constitution was void to the extent of the inconsistency. The sections of the Children Act which were contrary to the Constitution were hence null and void and the petitioner could not rely on them. The respondent noted that in any event the petitioner had invoked Article 32(1) and 32(4) of the Constitution and the petitioner could not invoke the constitution selectively.  He asked the court to dismiss the petition noting that the matter had started in 2006 and the two guiding principles were the best interest of the child and speedy trial of the issues in any case involving a child.

 
While the court found that the petition was incurably defective for failure to join the Attorney General as a party, the judge went further to lay to rest the matter by considering whether, had the petitioner properly brought the proceedings before the court, it would have been possible to find the orders of the Children's Court requiring him to undergo a DNA test an infringement of his right to conscience. Mumbi Ngugi J noted that the right of the child to parental care was a continuing right, and Article 53(1) (e) of the Constitution in that regard applied. The argument by the petitioner that the issue of paternity was irrelevant in order to establish parental responsibility was therefore untenable. Further, in light of Article 2 of the Constitution with regard to the supremacy of the Constitution, the judge affirmed that any provision of the Children Act that is in conflict with the Constitution must give way to the Constitution. 

The court acknowledged that in determining such matters, it had an obligation to weigh the competing rights of the child and the petitioner who was alleged to be the biological father. The right of the child to parental care according to the court had to take precedence particularly in light of the cardinal constitutional principle set out in Article 53(2) that in such a matter, the paramount consideration is the best interests of the child. 

Would it be an infringement of the petitioner's constitutional right to freedom of conscience either under the new or the old constitution to require him to undergo a DNA test?  The court was guided by section 78(1) of the old constitution and Article 32(1) of the Constitution (2010). The court noted that the two provisions protected the right of all persons, including the petitioner, to freedom of thought and religion, and of the freedom to change his religion and belief and to practice his religion. The petitioner in the courts' view had not demonstrated how by being required to undergo a DNA test violated his freedom of conscience as guaranteed by the Constitution.  

In answering the question whether the petitioners unwillingness to undergo the DNA test was sufficient to override the interests of the child who would thereby be denied the constitutional right to parental care, the Court made reference to the case of MW-v-KC Kakamega HC Misc Application No. 105 of 2004 and the case of Shri Rohit Shekhar-v- Shri Narayan Dutt Tiwari & Anr IA NO 4720 of 2008. The principle that emerged from these decisions was that an order for DNA testing should be made if it is in the interests of the child and if a prima facie case had been made to justify such an order. Such an order would not in the courts' view be in violation of any of the petitioner's constitutional rights and would be in the best interests of the child. In light of that, the petition was dismissed with costs to the respondent.