Background
For the last 2 years, I have been involved in a child custody case where the Plaintiff (the Wife) sued the Defendant (the Husband) for child maintenance but at the same time, she did not want the father to have any form of access to the child. Like any other case, this was one of those heated cases where both parties were accusing each other of all the bad things ex’s do. But that is not the point of this article….
The question is, what is the role of an advocate in such cases and to whom does this advocate owe his duty to? Is it the wife/husband or is it the child?
Better yet, should advocates in family law cases carry themselves the same way commercial/criminal advocates should carry themselves?
Case Law
Article 53 (1) (e) of the Constitution provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. Article 53 (2) further provides that a child’s best interests are of paramount importance in every matter concerning the child.
Section 8 of the Children’s Act mandates that in all matters concerning children, whether handled by public or private institutions, courts, administrative bodies, or legislative entities, the child’s best interests must be the foremost consideration. This includes a range of considerations detailed in the First Schedule. It requires that all judicial and administrative bodies prioritize the child’s welfare above all, ensuring their rights and well-being are safeguarded, their welfare is promoted and maintained, and they receive necessary guidance and correction in the public interest. Additionally, it stipulates that children should be given a chance to express their opinions in matters affecting them, with these opinions being duly considered based on the child’s age and maturity level.
The court in the case of M.A v R.O.O[1] stated as follows:
“Article 53(2) of the Constitution requires this court to treat the best interest of the child as of paramount importance in every matter concerning the child. Section 4(3) of the Children Act requires all judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any power conferred by this act to treat the interest of the child as of first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to safeguard and promote the rights and welfare of the child, conserve and promote the welfare of the child, and secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest”
In my view, the primary obligation of the advocates, representing both the Plaintiff and the Defendant, transcends their allegiance to their respective clients, instead centering firmly on the welfare of the child involved. This perspective is rooted in the principle that an advocate’s responsibility to safeguard the best interests of the child supersedes the duty to their client. Advocates are tasked with guiding their clients to understand the rights of the children and the responsibilities entailed in parenthood, all while ensuring these align with the children’s best interests. It is important to acknowledge that the children’s court plays a pivotal role in upholding this principle, serving as the ultimate arbiter in determining what serves the child’s welfare most effectively.
Best interest of the child can be summarized to include right to health, welfare, education and security.
Analysis
However, what I observed in this case was markedly different. There was a stark contrast in the approach of the Plaintiff’s advocate compared to that of the Defendant’s. Since both parties were very angry at each other, all they wanted was to hurt each other and use the child as a weapon for punishing the other. The Plaintiff won in this front. So the Defendant wanted to utilize all tools at his disposal to “hurt back”. He had at his disposal evidence and tools that could hurt the Plaintiff and possibly take back his child. But the advocate for the Defendant stopped him at every turn and consistently reminded him that at the end of the day, it was about the child and not about him. The Defendant’s advocate also encouraged the Defendant to remain calm and patient because “the court is also very reasonable and they see through all the noise… so relax”… She said.
On the other hand, the Advocate for the Plaintiff was an UFC Fighter, bare knuckles. Like what Erick Latiff says “He believes in bunching up and not down”. Examining his submissions and pleadings, one can easily tell he does not have the child’s best interest in his mind and he is much more emotional than the Plaintiff. First, his accusations were not supported by any form of evidence, he seemingly lifted accusations from a family law textbook and pasted them in court documents. His language was completely emotive and demeaning towards the Defendant which did nothing but drive emotions even higher. None of his allegations and request to the court were supported by facts, even those that can easily by backed by numbers that were readily available. His objective was one thing and one thing only, – To deny the child access to his father.
The said advocate discouraged and/or has neglected to encourage his client to compromise, negotiate or settle the case out of court even though the advocate for the Defendant on several occasions invited the Plaintiff’s advocate for an out of court settlement for purposes of ensuring the best interests of the child was prioritized.
As advocates, it is our duty to defend our clients with all vigour and might, however, in children cases, it would be crucial to ensure that the interest of the child is paramount and overrides all other interests. An advocate taking a child-focus approach serves a long-term interest of his/her client therefore helping them to be good parents. That said, I wish to submit that “the best interest of the child” can be very subjective. What is the best interest of the child to me may not be what is the best interest to the child to you. That is why it is an advocate’s duty to submit to the court all the available evidence.
In the case of Y v M,[2] Temm J said that:
“It appears to be a misconception of some prevalence that a solicitor’s only duty is to the interests of the client. That is not right. The lawyer undoubtedly has a duty to the Court that the Court be not misled. There is a wider public duty allied to that, by which a lawyer is under an obligation to refuse to make allegations that are not sufficiently based. It can be unprofessional conduct to make allegations of dishonesty without a proper basis. It is equally unacceptable for a solicitor to make accusations of fraud or of criminal activity such as sexual abuse without adequate grounds for doing so. An assertion unsupported by evidence is not enough. An accusation is not evidence.”
Therefore, family law advocates owe their duty not only to parents but also to the child because the child is the beneficiary of their legal advise, whether good or bad. Besides, Article 53 (1) (e) of the Constitution provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child; so either way both parties stand to benefit from the outcome of the case as the child has a right to parental care it just depends on hoe it is being achieved to the betterment of the child. In other words, an advocate should ensure that he/she assist the court in reaching a decision that would be in the best interests of the child and not mislead the court into making a decision that would be detrimental to the child. Such zealous advocacy most definitely affects the health, routine, welfare and security of the child.
Conclusion
In summary, parents facing separation often struggle with the emotional turmoil of the situation, which can inadvertently affect their children. Despite their best intentions to prioritize their children’s welfare, parents may not fully grasp the impact of their actions during this challenging transition. Family advocates play a critical role in guiding parents through this process, offering advice that aligns with the children’s needs. Advocates must often navigate a delicate balance, advocating for non-adversarial solutions that ensure both parents remain significantly involved in their children’s lives. It is of crucial importance for advocates to advise their clients to go for counseling which is known for calming things down and bringing parents back to reality.
Family law disputes are emotionally charged, with long-lasting effects on both parents and children. The adversarial nature of these disputes can exacerbate the emotional toll on children, making it crucial for parents to communicate and cooperate for their well-being. Family advocates bear a unique responsibility in these cases, not just as legal advisors but as guides helping clients through one of life’s most stressful periods. Their approach to handling cases can significantly influence the children’s future, underscoring the importance of a problem-solving, counseling approach over strictly adversarial tactics and advocacy. Advocates must be mindful of their influence on their clients’ perceptions and attitudes, ensuring their actions support constructive parental relationships and the children’s best interests.
Moreover, family advocates need to be well-versed in various aspects beyond legal issues, including financial planning, child development, and mental health, to offer comprehensive advice. Recognizing the limits of their expertise and the importance of referrals to other professionals is key. Ultimately, the role of a family advocate extends to ensuring clients understand the broader implications of their decisions, particularly in terms of emotional, economic, and parenting aspects related to family restructuring. While the degree of non-legal advice and support varies with each case, an advocate’s ability to guide clients through these multifaceted issues is crucial for the long-term well-being of the family.
For more information regarding child custody contact:
Lynn Wanjiru Ng’ang’a & Co Advocates
Tel: 0716723047
Written by:
James Mukabwa
[1] [2013] eKLR
[2] [1993]NZFLR609