Can the German Father be Forced to Support a Child Born in Kenya?

I recently got this question:

“Hey, please I need your help.

I have a son that was born in Kenya but the dad is German. I met this guy (Father to my son) during my au pair year in 2009. We decided we’d get married when my contract ended. He later told me he wasn’t ready and he switched off all communication.

Stressed and 3 months pregnant, I decided to go back to Kenya in May 2010. Since then I’ve been trying to send him emails but he never replies. Now it’s hard for me to bare the responsibility.

Is there any possibility nipate papers za Ujeru although the father denied responsibility?”

First of the author of the letter has 3 queries:

• child’s paternity
• child’s citizenship
• child support

Paternity

According to German law (§ 1592 Bürgerliches Gesetzbuch), the child’s father is defined as the man:

• Married to the mother of the child
• Who accepts the pregnancy (one who signs the “Vaterschaftsanerkennung”)
• Whose paternity has been declared by a court (e.g. in cases of adoption or where DNA is used)

In your case the third option applies, you’d need to go for a DNA test to ascertain he is the father and have him declared the father by a court of law. In order to go for a DNA test, you’d need his consent or a court order.

Citizenship

The child can only get German citizenship after confirming that the father is a German. A child born abroad can only attain German citizenship if at least one parent:

• is German
• is a German born outside Germany before 31.12.1999
• is a German born outside Germany after 31.12.1999 but currently resides in Germany

If a child is born in Kenya and the parents aren’t married then the parents would need to get a Cognition form from the Registrar of Birth and Death which allows the father’s name to be added in the child’s birth certificate. The cognition form can be used as prove at the German Embassy though they prefer a declaration from the child’s father together with the mother’s consent so as to issue German citizenship to a child born in Kenya.

If the parent is a German that was born outside Germany after 31.12.1999, then their child can only get German citizenship if the birth is declared at the Embassy latest within a year.

Child Support

In this case, where the child is Kenyan but the Father lives in Germany, then Kenyan child support laws apply. In Kenya the cognition form from the Registrar of Birth and Death would be the “Vaterschaftsanerkennung” that a woman would take to court to demand child support.

According to a Kenyan lawyer based in Nairobi, “the court grants upkeep orders so long as the applicant/parent can prove that the other parent is the father of the child. The court has the power to order one of the parents to take care of the upkeep of the child/ren. These orders vary from case to case.The most basic orders usually consist of the child’s basic needs like school fees and related expenses, medical expenses, food etc”

Kenya and Germany are both signatories of the Hague Protocol for Child Support 2007 which also regulates how to get child support from parents who are abroad.

Summary

In this case, the most important step would be to declare the paternity of the child as all the other steps depend on that. To first declare the paternity, the lady would first have to locate the ex or at least know his exact location. German law dictates that DNA tests can only be undertaken with the consent of all parties not unless declared by a court of law. Considering this isn’t a terrorist, the German police cannot force the man to take a DNA test.

The Federal Office of Justice, in the document Auslandsunterhalt regulates the payment of child support abroad. The Ministry of Justice in Kenya can escalate the issue to the Federal Office of Justice in Germany to ensure the man is found and receives the court order from Kenya, first for the DNA test and later for the child support. The lady in this case will have to get a court order for the DNA test to take place then find the responsible office at the Ministry of Justice in Kenya and give details on the man’s name, former address, employer etc that would help locate him. All costs incurred will be paid by the lady.

If the lady has a good lawyer then she might be able to get German citizenship for the child and if lucky even child support. Unfortunately, fighting a German in Germany using Kenyan laws can be an uphill task even fighting a German in Germany with German laws is usually very difficult. There are many Kenyan women in Germany who get absolutely no child support despite being in Germany, in worst cases these women have their kids taken away.

My suggestion is to talk to a good lawyer (try either FIDA or CRADLE both in Nairobi offer lawyers working pro bono) and find out what your options are. You might run to give the child German citizenship only for the child to be taken away, so you might want to consider that in your decision making.