This paper seeks to explore the principle of the best interest of the child in the perspective of third-party interventions in ongoing parent-child relationships, involving the right to health of children, and prove that interventions such as those of judges require something more than solely a difference of opinion about where the child’s best interests lie. Courts make a variety of decisions in disputes affecting children in different spheres of their lives with an aim of offering solutions. In making such decisions courts use the principle of Best Interest of the child. There is no standard definition of “best interest of the child” the term generally refers to the consideration courts take on in family law when deciding what type of orders will best serve a child with the child’s ultimate safety and wellbeing as the vital concern. Such judicial interventions are common where courts do not trust the child’s guardians decision making where for instance it is evident the guardians are willing to sacrifice the child’s interest to vindicate the parents beliefs or commitments.Common law courts historically exercised parens patrie power which imposed a sovereign right and duty to care for a child.Health care decision making takes place between the custody and the termination of parental status ground although unlike custody hearings health care decisions do not normally take place within an ongoing judicial proceeding. The application of the best interest principle in health care cases is likely to parallel the same institutional concerns that exist in the context of neglect decision, in countries like the United States courts in applying this principle do consider the impact on the child’s guardians to avoid imposing obligations or orders on unwilling guardians, such courts also define the child’s interest in terms of a greater set of societal concerns.1. BACKGROUND.One of the earliest interventions justified by the best interest principle involved an American father who failed to secure appropriate medical care for his infant child owing to him being a Jehova Witness Article 53 (2) of the Kenyan constitution 2010 provides that a child’s best interest are of paramount importance in every matter concerning the child. Under the children act CAP 141 Kenya has also consolidated provisions of various international and regional laws concerning children requiring all actions in relation to children to be taken with the child’s best interest as the primary consideration , the same is mirrored in article 3 of the United Nations Convention on the Rights of the Child and article 4 of the African Charter on the Rights and Welfare of the Child.The interests of the child and that of their parents may conflict with each other either in inter alia, their right to education, religion or medical procedures.In an attempt to keep their religious faith, a number of Kenyan parents do not take their children for the most basic immunization or to hospital in case of illness owing to their no hospital but prayer tenet, that by praying for the sick God would heal them and seeking conventional medication would amount to worshipping idols, this in turn infringes on provisions of article 53 (1) (c) of the constitution which provides that every child has the right to basic nutrition, shelter and health care.In this paper I will illustrate how Kenyan courts have put to use the principle of best interest of the child and contrast it with the use of this principle in the American courts by relying on the Curran case the trial court had to make independent findings as to where the child’s interest lie, experts were involved to determine the potential psychological effects on a tender aged child from being a bone marrow donor. The psychologist observed that the mother’s inability to support the process puts the children (twins) at a risk for having adverse psychological consequence although it was difficult to determine whether the mother’s concern was genuinely because of the risky process the twins were to be subjected to with a small chance of helping their half sibling or out of spite for the twin’s father, the court acted in a manner that sought to preserve the family unit by analyzing the interests of the children and identifying their well-being with the preference of the custodial parent, the mother. On the other hand in a Kenya, a Nyahururu court in 2012, before resident magistrate Vincent Kiptoon, parents of a fourteen year old girl failed to take their daughter to the hospital after she was defiled by a neighbor because they were upholding their kanitha wa Ngai (church of God) faith they summoned elders from their church and spent the whole day praying. It is neighbors with a volunteer social worker who stormed the house and took the child to hospital, the rape suspect was arrested and arraigned in court and the magistrate ordered the parents of the victim to take her for counselling and treatment.The father of the victim was later on arraigned in court for failure to comply with the court order and sentenced to two years imprisonment. In the course of the proceedings it was discovered that the couple had also refused to immunize two of their children both of tender age, however the court could not sentence the mother because the children would suffer with both parents in jail.The above incident caters fully for both children of tender ages and those above the tender age limit and in his ruling the magistrate took into consideration the best interests of the three children involved. For the 14 year old the court observed that her best interest was medical attention therefore opened a progress file to monitor treatment and counselling of the child. For the children of tender age (the two year old and the five year old) the court considered their best interest to be access to appropriate healthcare thereby directing the children’s office to ensure the two were immunized.The court in this instance relied on the best interest of the child to come up with its decision and to even sentence the children’s father but cared less for the family as an ongoing unit.2. STATEMENT OF THE PROBLEM.The question that arises is whether the institutional frameworks like the Constitution in Kenya and the best interest of the child principle can correlate and supplement each other to effect the enforceability of the best interest principle.3. RESEARCH QUESTIONS.The research aims at answering the following question; i. Are our current laws effective enough to effect the enforceability of the best interest principle without causing any more conflict? ii. Can the best interest principle be redefined to cater for the family?iii. Can matters beyond the best interest of the child be accorded legitimacy?From the facts of the Kenyan case above and the ruling, one can be led to the conclusion that the court really did enforce the best interest of the child principle effectively for the benefit of the child, such conclusion is right but only befits children law, therefore creating a conflict with other laws such as family law and also conflict with parental rights and responsibilities, therefore complete enforceability of this principle as it currently is, is not possible. Interests beyond those addressed in the child’s best interest are still a legitimate part that affect the child’s welfare therefore in applying the principle the court should not ignore family law and the nature of the family as an ongoing unit. The rights of the parents although not absolute should also be taken into consideration alongside family privacy.The approach taken by the magistrate court catered for the children’s best interest of getting immunized, but by leaving them under the care and custody of a parent devoted to the same religion that denied the child the immunization right to begin with exposes the same child to the same danger of having their right to health infringed. But then again by taking them away from parental custody would it not be denying them parental care and the benefits of having a family? What then is the best interest of this children? Having in mind that the father showed no remorse in court and even asked the court not to waste its time telling him to take his children to hospital because not even jail will shake his faith, and their mother’s unwillingness to take them to hospital even after the death of two of her children to untreated illnesses. Challenges associated with enforcement of the best interest of the child principle.A number of challenges arise in the application and enforcement of the best interest principle. • Owing to the intrusive nature of third party involvement there may result negative consequences for children depending on the form of intervention used. This usually relates to children of tender age for instance the two and five year olds not immunized, if the court were to authorized children officers to remove the children from the parents’ custody and allow immunization of the children, this would inflict terror on such children. In an effort to cater for their best interest, health, they end up losing parental care.• Conflict of the various interests of a child, from the fact of the case it clearly was not in the children’s best interest to be left under the care of the mother a staunch believer in the faith who despite losing two children, who died from untreated illness, on the other hand these children especially those of tender years needed parental care therefore the court regarded their right to parental care as their best interest exposing them to the same risk of lack of health care. In such incidences which interest can be overlooked and is it possible to overlook any interest.• The right to privacy , family privacy is invaded on by publicizing the issue in the media by journalists. Even though our constitution allows outside parties to be able to prevent harm to a child or any other person, their intervention although governed by the best interest principle should also respect and preserve the family’s privacy.• Imprisonment of their father on one hand denies them paternal care but on the other hand he ought to be held responsible for his action, the question then is which action? Should the parents be punished for exercising their freedom of religion provided for under the constitution ? If such actions can be punished then the government ought to be stricter on such parents. 4. OBJECTIVES OF THE STUDY The paper aims to achieve the following objectives; i. Analyse the current institutional frameworks ii. Propose reforms in the family and children law and in the judicial interventions in implementing the best interest principle.iii. Protect the family as an ongoing unit.iv. Establish the link between the existing national laws and enforcement of the best interest principle.v. Compare application of the best interest principle between Kenya and in the International platform5. THEORETICAL FRAMEWORK – A UTILITARIAN APPROACH.In this paper I exclusively rely on the utilitarian moral theory which is suitable in instances of conflicts of rights or interests. It proposes that an act is right or wrong depending on its outcome and capacity to maximize a particular utility for instance happiness , as such it moves beyond the scope of one’s own interest and takes into account the interests of others. In specific act utilitarianism which applies the principle of utility and defines a right act as the one that brings about the best results or the least bad results possible. Where happiness exists conflicts seize. Courts relying on this theory can apply and enforce the best interest principle without creating any further conflicts.6. RESEARCH METHODOLOGY.The method to be adopted by this paper in research is through desk research. The desk research will majorly include analyzation of the Kenyan family and children laws, The Children Act CAP 141 and the Constitution of Kenya 2010 together with the international and regional laws on children, books authored by experts in the field of children and the law. This will be supplemented by essays, journals and internet search. The research question and objectives of this paper will be met through this method as no fieldwork is required to meet the objectives. Any data information required can be accessed through desk research. 7. LITERATURE REVIEWChildren being the future of our world, their issues are very delicate and require great expertise to deal with in order to give a lasting solution. Various authors and journalist have taken a keen interest in the topic of the best interest of the child especially when it comes to the child’s right to health care and just like Racheal Muthoni a Kenyan journalist in her article on Religious Beliefs Prevent Kenyan Parents from Seeking Conventional Medicine for Children I concur that there still remains a big gap between the national laws and believers of anti-conventional medicine, and that the government should do more than arrest such believers if they happen to be parents who infringe on their children’s right to healthcare.In Beyond the best interest of the child, Joseph Goldstein observes that there is more to the best interest of the child that is still legitimate, he also in his book seeks to protect the family as a unit.In their book NOT In The Child’s Best Interest, Ron and Sherry Palmer show the conflict that enforceability of the best interest in divorce cases, brings to other existing laws such as the constitution in America, this is also evident in Kenya where enforceability of the best interest principle often in health care decisions do infringe on constitutional rights of the parents.The arguments by June Carbone JD in her article legal application of the Best Interest of the Child Standard do resonate well with my research as she seeks to find out whether such application is a judicial rationalization or a measure of institutional competence, she also emphasizes on the need to add family back into application of the best interest standard.CONCLUSION.”The right to practice religion freely does not include liberty to expose the community or the child to communicable diseases or the later ill health or death, parents may be free to become martyrs themselves. But it does not follow they are free in identical circumstances to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves
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