6 May 2019

Kenya: Kidnapped or Rescued? Legal Battle Over Boy's Custody Intensifies

Photo: Nairobi News
Matt and Daisy Mazzoncini with baby Kiano. The High Court will determine if a Children’s Court was right in granting them legal guardianship of the minor.

A three-year-old boy taken away by the government from an American couple that had adopted him has exposed a glaring gap on inter-country adoption laws in Kenya.

The State put a moratorium on foreign adoption five years ago.

To date, the whereabouts of the boy, who is epileptic, are not known since 13 officers from the Directorate of Criminal Investigations (DCI) raided Matt and Daisy Mazzoncini's house in Westlands, Nairobi, and took custody of the child.

That was on April 5 when the DCI tweeted about the raid only to pull down the post a day later.

There is a vicious battle in court over the boy's legal guardians.

"Detectives acting on information worked around the clock to rescue three-year-old baby Kiano from American citizens Matthew Mazzoncini and Daisy Mazzoncini who had planned to travel with the baby back to the US," said the DCI at the time.

The Mazzoncinis claim the State kidnapped their child. However, the government says it rescued a child who was about to be trafficked to the US.

In its court submissions, the government says the case is a matter of national security.

It is, however, not clear why the government took custody of the child despite two court orders granting guardianship of the child to the couple and another one that allowed them to travel with the boy to the US for medical attention.

CHILD WELFARE

The Child Welfare Society of Kenya (CWSK) has filed a case in court arguing that the claim that the baby is sick to warrant treatment abroad is frivolous.

"The child in this matter is alleged to be ill and the proposed interested party finds these ailments are typical and common for children below five years and that they are treatable locally," says CWSK through their lawyer Victor Rapando.

CWSK claims follow a ruling by Hon Mary Otindo, the senior resident magistrate at the Children's Court in February last year, that allowed the couple to travel to the US with the minor.

Away from court, this ignited a chain of reactions that ended with the baby being taken away three weeks ago.

Labour Cabinet Secretary Ukur Yatani waded into the issue, asking the Immigration department to stop any attempt by Ms Daisy Mazzoncini to leave the country.

"It is important to note that all the procedural motion of guardianship was flouted through what appears to be a conspiracy of a cabal of networks," said the CS in a letter to Immigration principal secretary Gordon Kihalangwa on November 18.

"It is my hope that you will employ appropriate intervention to stop the named to leave the country till the determination of the ongoing matter that is being handled by the department of child welfare of this ministry," he said.

LEGAL GUARDIANS

The matter the CS was referring to is a court case filed by the Child Welfare Society challenging a ruling by Hon Otindo that granted the Mazzoncinis permission to seek medical help outside the country for the baby.

It was after this that Ms Mazzoncini's work permit was revoked. Then accusations and counter-accusations between the State and her family began in court.

Ms Mazzoncini, who is a dual American and British citizen, came to Kenya in 2016. She signed up as a volunteer at the Mogra Soul Winner Rescue Centre in Muthaiga. Her husband, who is a former senior executive of Starbucks, has been in and out of Kenya several times. They have been married for nine years.

The two became legal guardians of the child on April 3, 2017 through an order by Ms Otindo, who was then the senior resident magistrate of the Children's Court. The child in question was discovered in a plastic bag in Kiambu outside the Kirima Tent of Prayer in Ruii together with another baby believed to be his brother in January 2016. The other baby died soon after.

The surviving boy was adopted by the Mogra Soul Winner Rescue Centre. The children's home gave custody of the child to Ms Mazzoncini on December 6, 2016, according to documents regarding the case which we have seen.

According to an affidavit by Ms Mazzoncini, the child has been in and out of hospital and has incurred bills amounting to Sh700,000, which she has paid with her husband. In addition, she claims that they followed the right procedure in getting guardianship of the child.

"We sought legal counsel from our former advocate Mr Elvis Abuga who informed us of the current moratorium against foreign adoption and advised us to file for legal guardianship which will allow us to have 100 per cent parental responsibilities over the minor therein," she says.

Whether the Children's Court was right in granting guardianship of the boy to the couple is a question the current case at the High Court will seek to answer. The case is up for hearing on May 8.

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