Status of Legitimacy of Children

January 17, 2022

Status of Legitimacy of Children

The law of children is principally concerned with legitimacy, adoption, guardianship, and custody. It covers issues of;
Who is a child as a matter of law?
Who should be recognized as a parent?
What does it mean to be a parent?
What ways if any, should the conflict rules be different from fathers and mothers, married and unmarried, in same sex and opposite sex for a child?
Can the child have only two parents?
What about cases involving artificial insemination, surrogacy or adoption?
Separately we need to ask the question about who should have responsibilities in power is associated in raising a child then the answer will be grappled on “parental responsibility”.  It’s in this blog that I will seek to answer the question of :
Legitimacy
Legitimation and adoption in matters status of the child
I will put this to the context in Private international law and also some aspects of Kenya. One situation is when parents have separated or divorced, to what status would be given to the children if possibly they are unable to agree on the arrangements?. This issue generates that what parents should do and showed the child to live with the time spent with the private disputes of status acquisition.
Introduction
The Brussels 11 regulation, applies in civil matters relating to the attribution, exercise, delegation, restriction or termination of parental responsibility. This covers rights of access, custody, guardianship, fostering and protection of the child's property. Significantly, this regulation does not cover disputes of parenthood, adoption and divorce procedures .The center of focus is on jurisdiction of the courts to the child’s habitual residence.
Child
Under the Childrens Act Cap 141 (sec 6), it imposes the right to duties of the government to ensure the realization on the steps to the maximum of its available resources with a view to progressively the full realization of the child.
Child or a minor is a person who has not reached the age of majority, this is under the Children’s Act cap 141, (sec 2) any human being under the age of 18years and as well as in the Age of Majority Act Cap33 2012, (sec 2).

Parental Responsibility
Parental Responsibility according to the English law, under Conflict of Laws,
the parental responsibility of a father and a mother whether the child is domiciled abroad whether not monogamous or polygamous marriage is governed by the English law.

Best Interest principle
The English courts have jurisdiction to determine disputes between parties.Under (sec 4) more specifically it, provides that in all actions concerning children whether undertaken by public or private welfare courts of law administrative bodies, the best interest of the child shall be the primary consideration.
This principle hence shall be applied by the Kenyan courts as part of the Lex fori in all cases. It applies where there is disputes between parents and strangers and also English cases when both parties are of foreign domicile.
The basic rule is to give jurisdiction to the courts for the place where the child’s habitual residence is. But where a child has moved lawfully from one-member state to another, the courts of the former retain a short period of exceptional jurisdiction, the court has consequential jurisdiction also our parental responsibility over the basic interest of a child jurisdiction at the end may ceases at the final judgement of matrimonial proceedings.
Habitual residence
Also, there is a concept of habitual residence in choice but not to dependence. There are two models to determine when it comes to the status of the child-in habitual residence, First is the child centeredness and the other is on parental rights ,whist the former is concerned with the objective means the existing connections with the country the latter are more influenced by parent(s) who have parental responsibilities for him.

Re P it was the position that the habitual residence of a child, is determined by the habitual residence of the parents if one they have been married two I they have joint custody rights.
New born takes that habitual residence of the father with the parental responsibility even if the child was not born in that country.In Re H (child abduction surrogacy).C has no genetic connection to H but as gestational mother, she is child’s legal mother (S.33(1) Human Fertilization and Embryology Act 2008). D also has no genetic connection but as C’s husband is the legal father.
When there is joint parental responsibility, the child has some habitual residence with them, no one can petition in court without the consent of the other
Another situation is when the parents and children move to a new country and one parent becomes a habitual resident there then the habitual residence of the child thus remains unchanged and if an occurrence which may deem the habitual residents, the issue of consensus.
For the issue of separated parent’s, the child habitual residence follows the principle carrier whom he resides. In Re F (Child abduction). The High Court ordered the return of the child, subject to undertakings made by the father.
Lastly a person who does not have parental rights cannot immediately change a child habitual residence by taking him to a new country In Re S (Custody) Parents may as well as change a child habitual residence without changing his own. The child, a girl, was 9 1/4 at the date of the alleged wrongful removal. She had lived in France since March 1991. The parents were separated and by the terms of a written agreement they had agreed that the child would live with the mother in France and the father would have unrestricted access. On 24 November 1991 the mother took the girl to England, her State of origin. On 20 December 1991 the father applied for a return order .On 17 January 1992 the High Court refused the father's application, holding that the child had attained an age and degree of maturity at which it was appropriate to take account of her views and exercised its discretion to refuse her return.
Legitimacy
The adjective legitimate, translated into Latin, is termed Legitimatione, meaning lawful, genuine, and rightful. Previously under the Scottish Law Commissioner, it was observed that there was an issue of a relationship between parents and no attribute to a child cases where a father and mother were not married to each other at the time of the child’s birth were reported, and this led to the central issues of legitimacy.
Succession Act does not include an illegitimate child.Under (sec 22) is construed to have the same meaning to a child. Also, under the National Social Security Fund Cap 45 2013, both ‘son’ and ‘daughter’ to include also an illegitimate child (sec 2).
In the context of Kenya, the Magistrate under (sec73(d(iii)) and the High court on (part iv) has the authority to conduct civil proceedings. The jurisdiction rules to be followed here in is the court shall domicile on the date of application. According to the seventh schedule on the adoption of male and female prospect. Habitual residence for conformity reasons, Deed for the case of guardianship sec102, and must be or a Kenyan citizen There has to be a declaration of parentage Applicant has or has not become a legitimated person.

Status of Legitimacy
Lord Brougham in the case of hashmi v hashmi 1972, stated that when considering questions of legitimacy, we look at the law of the place where the father was domiciled at the time of the child’s birth. If that law treats a child as legitimate, then English law will likewise recognize that status.
Legitimacy is a status of a child a regular place in a family and in the network of rights and duties existing between the members of the that family notwithstanding the legal position of having been born in a lawful marriage.
The question of legitimacy has oftentimes risen in the course of succession as to whether the class can attain certain rights and privileges. Formally, legitimacy was vital in determining property, but however the other question would be on the recognition of child to be either legitimate, or even adopted was very different from the fact that they would succeed in property under a gift to children in settlement or will or intestacy.
Re Valentine Settlement,1965 traditionally, the status of legitimacy was canvassed with rights belonging to a child, that was also inclusive succeeding his parent's property. The disadvantage with this is that how then will the illegitimate child inherit? Due to the progressive realization of certain rights, the illegitimate child’s rights were recognized, enlarge and more-so enhances, this was under the English domestic law that applied the Family Law Act 1967 and was soon repealed by the existing Family Law Act of 1987 Act and they apply intestacy rules and the administration of estate act.
The gradual changes it brought is that it applied to any relationship between two persons are to be construed without any regard at one time they were mannered to another (sec 19) also applied to relationships will be executed on that date is to be construed. Shaw v Gould 1868, an English woman issued a divorce in Scotland, which the Scottish law court regarded as valid, and thereupon married a domiciled Scotchman, afterwards a child was born out of this marriage who claimed property of the mother. The English court held that the Scotch divorce invalid, held that the child of the Scotch marriage was illegitimate. If any dispute rises in legitimacy of a child born in a lawful marriage, it will be established that the matter is null but validity of marriage requirements will be upheld. In Brook v Brook(1861) House of Lords dealt with the question of deciding on whether the essential validity and held that the marriage of a man to his deceased wife’s sister in Denmark was invalid because such a marriage was within the prohibited.
Legitimacy by the lex Domicili of each parties

Attorney General for the state of Victoria v Commonwealth of Australia, states that view legitimacy is a question of status, it should be governed by the law of the Childs domicile of origin. However, there was an objection in this case that under the English Law, the child's domicile of origin father if legitimate and mother if illegitimate, then the legitimacy of a child cannot depend on the domicile of origin of domicile depends on legitimacy.
Shaw v Gould, in this case the father and mother were domiciled in different counties, it could be held that the legitimacy of a child was determined by law of the father's domicile at the date of the child’s birth. Smijth v Smijth a child is legitimate if either the parents were domiciled in a country of which the law would so regard him.
The Law Commission and Scottish law Commission 168, resolves that there may rise difficulties where the law of domicile of mothers may be irrelevant and as such be settled the place of birth is the place of celebration of the main domicile of the mother is irrelevant. The position Dalhouse v Mcdonal, the position of a child’s cautious in taking domicile of status, father may change his status to a punitive father.

The question of Succession to a Legitimate child.

The law governing the law of succession to property in the context of interstate succession is referred to as Lex successionis. Lex Situs applies for immovables. Onto the moveable, here the law of domicile of the deceased person at time of the death.The law of Succession under a will that is the testators intentions and attached to movables and immovables the law in application will be at the time the testator is making a will and the validity of such. Inter vivos Settlement of trust, the proper law of settlement of trust.
In such cases, the foreign law of a country will not apply for the child will succeed under a testament, will, or Intestacy .weather legitimate or not. The person is to be organized as a legitimate and can succeed to property under a will and the rules will apply under the English Law. The question before the courts will not only look in the class of persons to inherit but also eye into the key issues of the necessity qualification of legitimacy.
In summary, the need of reforms the law of domicile of a child has changed and a child cannot be tied to either of the parents, but would be in the country which the child has or was mostly connected to. Abolition of the Illegitimacy in foreign system has categorically shift the main niche o be also included as a child. The policy of the foreign legislation will dependent on the nationality will be dependent on the domicile of choice, and finally, the principle of connection will be upheld in matters the status of legitimacy.

Legitimized child at common law
Common law position that a Legitimated person under the Family Act 1976 (sec 56(b) read with the Legitimation Act 1986 to be a situation where a mother and father of an illegitimate child marry one another, the marriage shall, if the father of the illegitimate person is at the date of marriage domiciled in English and Wales, render that person, if living, legitimate from the date of the marriage. In the case of Munro v. Munro 2015, in each of which the birth of the illegitimate child, and also the subsequent marriage of the parents, took place in England, but the domicile being Scotch it was held that neither the place of the marriage nor the place of the birth affected the status of the child.

Jurisdiction
Formally the English courts had jurisdiction to handle proceedings for a declaration that the person is legitimated under the Family Act 1976 (sec56 (2)) two circumstances one was if the applicant to this matter was domiciled in England on the application date and was habitual resident in England during that period. There in subsequent marriages matters were brought, whichever last happens.
In Kenya under the Legitimacy Act Cap 145 2012(sec 4) on the declaration of illegitimacy is that a person claiming that he or his parents or any remoter access may petition in court praying for a decree declaring that the petition is a legitimate child of his parents and the courts shall have jurisdiction to hear and determine the application and make such a decree of the illegitimacy of the person and it shall be binding between the parties.
Recognition
In a foreign situation where the father was domiciled in a foreign country, at the time of his marriage, through the law the illegitimate child has become legitimated, that child person according to the act is considered to have been legitimated from the date of the marriage, whichever last happens.
Where a father was domiciled at both the date of the child's birth and also at the date of the subsequent marriage, the child is recognized as legitimated at least from the date of marriage and birth date.
Legitimization in civil partnership or rather same sex marriages, that is between the mother and the person deemed to be the other female parent by the Human Fertilization and Embroil Act, Legitimacy will only apply where the female parent is domiciled in England at the date of the formation of the civil partnership.
Where a person seeks for a declaration that he has become legitimated by the Act, or recognition of foreign courts ,or a declaration that he is not legitimated person ,the, the Jurisdiction is exclusive and such orders could not be made as the present jurisdiction requirements required there has to a subsequent marriage and the party has to prove that he has been habitually resident throughout the previous year.

Succession of the legitimated person
Under the common law a child could inherit any disposition from parents ,as from the date of legitimizations the main question before the court was weather the legitimated person was alive or dead, and weather he was a party to the proceedings however in such cases the person whose legitimation was in question then the orders will only bind the parties claiming and they do not declare any question of legitimation?.
In Goodman v Goodman it was held that a person in question was legitimated and could succeed as a will of the parent. In Goodman v Trust It was positioned that the legitimated and could not succeed to other property as one of the inherit from.
Henceforth child recognized as legitimated under the Legitimacy Act 1976, could and can only inherit or succeed any property any disposition coming into operation after the date of legitimation.

Recognition of Foreign judgments
Based on the Legitimacy Act 1976, and Family Law act 1986, in the line of defining legitimation or a legitimated person. Refer to a recognition of legitimation of the subsequent marriage under the common law rule, there are also other forms of legitimization and no clear-cut guidelines as to the circumstances where it can be recognized under the law.
If the law of the father's domicile requires something more than subsequent marriage that is ‘parental recognition 'in order for a child to gain the status of being legitimated, this requirement may deem to be satisfied before the courts before the child becomes recognized as legitimate.
Foreign statute
Similar statutes are in force from the English domestic laws in cases where the father was or is domiciled in England at the date of marriage. In Re Wrights Trusts, it connoted that the father must be domiciled at the time of the child's country in which legitimization by subsequent marriages is permitted by law. It is now sufficient that in the cases where of legitimization by subsequent marriages if the father was or has been domiciled at the time of such marriages in a foreign country by the law by which the child became or was legitimized by the subsequent marriage of the parents. Consequently it's not a must the marriages to be working.is permitted by the law,
Adoption
Originates from a Latin word adoptio meaning that a person assumes parenting for a child born out of other parents.
This is the creation of a relationship between the parent and the child. The adopters and the child and the adopters will have no genetic relationship, but the adoptive relationship. Adoption is not limited to those children born illegitimate.
Under the Immigration Act Cap 172 2010, (sec 4) child includes an adopted under the Adoptions Act, the Childrens Act Cap 141, recognizes the rule that a child may be adopted whether or not he is a citizen, or whether or not he was born in Kenya. Under the common law, there were no provisions as to adoption until the development of the Adoption of Childrens Act 1926 which enhanced its definition.

Jurisdiction
The Childrens Court has the original jurisdiction to hear matters of Adoption and to issue an adoption order other than the Conventional order. This is based on the domicile or the habitual residence of the child and the parent's child has to satisfy the requirements, or the parents, atlas one has to be domiciled or has attained a habitual residence. An adoption order is absolute and irreversible (seventh schedule (3).
In Kenya, an adoption order may need to satisfy some requirements laid out in the following, the birth and the date and place of birth of the parent or of any person stated in the certificate to have been born in that country, date of birth, place of birth, and the circumstances surrounding the request for adoption, and the true or the named hereby reputed names of any child so adopted of either his natural or adoptive parents.
Also, Kenya has banned the adoption of Kenyan children by foreign nationals with an indefinite moratorium since 2014, this order is expected to stop or perhaps reverse adoption cases that have been bypassing the moratorium through special cases which have been reported subsequently by the child Welfare of Kenya.

Choice of Law
In this case, when English court was confronted with a decision to make a to adoption order, based on its jurisdiction it will apply English Law, The main interest here is that the law of the country in which the child and almost variably, his natural parents are connected.
Consent by a parent to adoption of a foreign country cannot be treated as an equivalent to consent to adoption in England cases involving international adoption the issue has arisen to whether any for institution which parental rights has been invested in and have a foreign law cannot be recognized as a guardian for the purposes of the required consent.
In adoption consent of foreign public authority positions the question on whether the consent of such authority is required may be tested by position of the the local authority in England where the consent or bath or in public authority is required but it is an able and that it’s all a lot to give consent.

Consent may be in appropriate cases to be dispensed with, In Re J(adoption consent) that case applicants domiciled in England were able to apply for an adoption order in respect of a child who was in England who was the legitimate child of an English mother in a Spanish father domiciled in Spain the parents divorced in custody Goff J said that the court had jurisdiction to make that order it should consider whether an order will be recognised unless it is the only for the benefit of the child to be adopted refugee cases in a country with which the child might be a sign or for which it was national or in which had recently been ordinary residence he added it is not necessary to prove what are the laws of the relevant foreign country.
The problem is not the jurisdiction be applying law but of considering the factually weather. having regard to the foreign element the English although we have generally recognition and if not whether the order will still be for the welfare of the apartment.
Prohibition of adoption in Re v Secretary of State good position that the Secretary of State called in and prevent adoption from onset of the unsatisfactory procedure of the country where the child came from.In that case the child and adoption act had content provision confirming his power and he has a reason to believe that the practice is taking place in the country or territory outside and in connection with the adoption of children it will be contrary to public policy bringing up children into the United Kingdom either with a view to adopt here after dealings with her it isn’t your agency in the relevant country after adoption in that country it was immaterial whether the country or not.

Recognition of foreign judgements
Adoption literally affects details of a child. Traditionally rather in the common law the law of domicile plays a vital in control and influence over the creation of a status of the child, hence the adopted by persons who are domiciled in the country and in which the law of adoption is infected and they don’t shed will be recognized in England and for some reasons it will provide no consideration of public policy and whatever maybe the position with regards with the law.
Both, English Law requires the adoption to be valid under the law of adoption or the adopted person or if both in Re Valentine Settlement.It doesn’t give you the Law of the both parties domicile must be satisfied it is based on the theory that adoption and the status of both parties in that only the law of the adopted person has done adequately safeguard his welfare and the rights of his natural parents but however it’s really ignores the fact that adoption is all,that I have in some of the majority cases beneficial to the child and also the difficulty of determining and I said turning the Child’s do miss you and the view that the child can be done and the view that a child believe that the child is difficulty of ascertaining the child’s legitimacy. Isshould recognise a jurisdiction which day they themselves claim since the domicile of the adapter is the jurisdictional ground needed for an English adoption order so that it could be that your station ground need it for the recognition of offering adoption.
The effect of foreign adoption
The recognition does not truly necessarily involve giving effect to is outcome their status confirmed on the adopted child by the Adoption and Childrens Act 2002 applies to all children whose adoption is recognised regardless of the provision of the (sec11) law of the relevant foreign law recognition can’t contrary to public policy.
In the same case in Lord Denning entered one caveat again it’s recognising up for an adoption namely that there there must be nothing contrary to public policy, because public policy is it necessary reservation in any of the conflict of laws case so it should safeguard any interest of the social policy for example the fact that the following law permits the adoption of adults or permits and option otherwise then the court order or does not require that adopting the child to live together for a trial period before ts made.
According to Dicey and Morris, the treatment in English legislation on the recognition of flooring adoption is somehow indirect.This is because there is one statutory reference to adoption which was actually recognised by the law of England but however it involves no prescription to the occurrence or into the circumstances in which a fall in adoption will be deemed to be recognised that according to its adoption and Children’s Act 1976 to which regulates this date is confirmed by adoption date.Adoption was defined to include not only adoption by orders the act but also a number of requirements for an adoption and for the purpose of those for an adoption they were treated to be as equivalent to English adoption this is clearly considered recognition off for an adoption in England.

Succession of the adopted child.
The question on whether a person can succeed to property as a child as a next of kin or is an issue is quite different from the question on whether he is recognised as having the status of being adopted therefore the main question here is a question of construction but however the other question is a question of status on whether an adopted person can succeed to property shall be on the principle be decided by the law governing but rather not by the law governing the adoption so under the Adoption and Children Act, Confess that at the adopted child can therefore take property (sec 7) and the channels adoptive parents can use are in and out of this position made before and after the date of adoption so the rights of succession confirmed by these provisions apply to persons in this question may not arise from the language of the instrument or for the relevant surrounding circumstances that this data rather than the issue of either did or did not intend to include adopted children instance is there now.The English court has to deal with the succession by or not adopted by Some foreign law it might refer the all case to the foreign law needs leaving it to that low to determine whether to what extent the children succeed as a child of its adopted or natural parents hencr thr incidental question.
The status attributed to a child are either Legitimate, Legitimated or adopted. The rules of conflict laws apply to cases having issues of jurisdiction of courts, recognition of foreign judgement and also choice of law are included. Also, a new element of succession of a child is included, and in all cases, the laws of succession applies. Also, a comparative analysis of the Common Law position and the Kenyan context has been adhered to, with nearly most of the laws have been digressed and formed part of our laws.