Did You Know That Consent Is Required To Add The Name Of A Non-biological Father To A Birth Certificate?

INTRODUCTION. 

In the realm of the living, it may seem inconsequential to simply add a name to a child's birth certificate for a person with whom one is romantically involved or married to but is not the biological father. However, that is not the case since one has to seek consent from the non-biological father first.  Furthermore, is also important to emphasize that even in instances where a child is actually born to someone else due to the mother's deception, it is not appropriate for the non-biological father’s name to be added to the birth certificate without his consent. It is imperative to seek written consent from the non-biological father before adding his name on the Birth Certificate as concealing the true parentage of a child is not acceptable in today's world. This issue was recently addressed in the ruling of Kisumu High Court  FOA v RAO- ([2024] KEHC 6844 (KLR), which will be discussed in this article. 

HIGHLIGHTS OF THE HIGH COURT RULING [2024] KEHC 6844 (KLR 

Brief Background of the ruling  

In the mentioned ruling, the applicant and respondent were involved in a romantic relationship and had a child together. Despite not being married, they were co-parenting until the applicant discovered that he was not the biological father. He then stopped providing for the child, leading the respondent (mother) to report him for child neglect. After conducting a private DNA test, it was confirmed that he was not the biological father. The respondent (mother) objected to this and the court ordered a government laboratory to conduct another DNA test, which also proved he was not the biological father. As a result, the court ruled that the father's name should be removed from the birth certificate due to the lack of consent from the father (applicant) and also the information on the birth certificate was untrue and misleading.  

The following are some of the notable highlights of the said High Court Ruling; 

1. Consent must be obtained first from the non-biological father – The learned judge pointed out that a mother shouldn’t include the name of the non-biological father without his express written consent first; 
2. Children have the right to know their biological father and therefore mothers should not conceal such by adding a person who is not a biological father; 
3. It is crucial for a mother to be truthful about the paternity of a child, even in cases of extramarital affairs or relationships, to ensure transparency and honesty for the child's well-being. 
4. Best interests of the child should be prioritized first -The court while formulating its decision emphasized on section 4 of the Children’s Act 2022 on parents putting the best interests of the child first. Therefore, it was emphasized that mothers should help their children know their fathers not unless in extreme situations of neglect and abuse; 
5. For Psychological Benefits -It was noted that a child should know its father to avoid the negative impacts the absence of a father may have on the child now and in the future; 

Conclusion 

The analysis of the above ruling in this article reveals the necessity of obtaining written consent from a non-biological father before adding his name to the child’s birth certificate. This measure is essential to protect the child's welfare and prevent any adverse effects, both immediate and long-term. Furthermore, as emphasized by the court under Article 35(2) of the Constitution, every person has the right to correct or delete inaccurate or deceptive information. 

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1. Offering advisory relating to all aspects of civil registration; 
2. Assist in the application and processing of birth and death certificates; 
3. Representation in court with respect to matters relating to civil registration; and 
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Wahu WAMBUGU ( Associate Advocate)- mwambugu@cmadvocates.com 

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Disclaimer 

This Alert is for informational purposes only and should not be construed as legal advice