Colegio de San Juan de Letran

COLLEGE OF LIBERAL ARTS AND SCIENCES

151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

MENTAL HEALTH

Divorce cases scar children, prompt calls for

mediation
Witnessing parental fights over upkeep, custody and access traumatises children
In Summary

• The past year had an explosion of divorce cases locally and globally due to Covid-19
• Children were caught up in the economy-induced conflicts; mediation protects them
Family separated by divorce
Image:  PIXABAY

https://www.the-star.co.ke/news/big-read/2021-01-26-divorce-cases-scar-children-prompt-calls-for-
mediation/
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

Family is the most basic unit of a society and it is beautiful. It is the safe
place when all else fails.

However, when family relations break down, the aftermath is ugly. And
children tend to bear the brunt. They suffer emotional, psychological and
physical trauma.

Though family disputes have always been in Kenyan courts, the past one
year has had a surge in matrimonial cases, with a worrying number of
children dragged to court as a result.

Senior counsel John Chigiti blames the escalation of disputes in families

on Covid-19, the sudden loss of jobs and closure of schools. This placed a
huge unprecedented social and economic pressure on many homes and
brought about a lot of tension. Domestic violence cases shot up.

Cases of drug abuse, cybercrime and child pregnancies sky rocketed, he

said. All this was happening under one roof, with little or no access to
counselling facilities. Family members became irritable.

“With every family member competing for the little that was there,
everything became a conflict trigger,” he said.

“Small fires were lit all over. The future was unpredictable. Everyone’s life
was under threat. There was no money, no cure, no direction.

“The Health CS and his poetic updates was everyone's salvation. Every
day we kept hoping to hear him announce an end to the Covid-19
pandemic.”

This presented a toxic family set-up that reflected in a surge of

matrimonial disputes. During the Covid-19 era, children became the most
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

vulnerable family member. Many were neglected and left to fend for
themselves.

“Many homes broken, leaving the children in need of care and protection.
Many children found themselves in need of upkeep, custody and access
orders,” Chigiti added.

Why are we not moving faster on online cases?

They are struggling to cope with the limitations of technology

The Star / ANNETTE WAMBULWA
DIGITAL TRIALS

The senior counsel said things became so gloomy and hopeless to many
children when the courts suddenly closed their doors in March 2020, when
Covid-19 picked momentum.

While all this mess was unfolding in many homes under the cover of the
long, dark and painful curfew nights, Chief Justice David Maraga, now
retired, was toiling on an ICT solution.

“Within no time, he propelled access to justice to another level when he

rolled out the e-judiciary. The courts suddenly became accessible to all.
One could file a case from the comfort of their bedroom,” Chigiti said.

This led to an avalanche in children's cases that were filed in the Children's
Court in 2020.
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

Normally the court journey begins when a parent or a guardian files a case
on behalf of the child in the Children's Court. The most common orders
they seek are custody, access and upkeep orders.

The suit papers are then delivered to the offending parent, who files their
reply. The two parents are then heard by the court before a determination is
rendered.

In some instances, the court orders the children to be brought to court,

depending on prevailing circumstances, on a case-by-case basis.

The court process can be very dramatic at times. Some parents usually take
the children with them to court, probably for purposes of generating an
impact on the minds of the court.

Many times, the children who appear in court witness the bare-knuckle
parental fights. The court tries not to expose the children to these excesses.
However, it is not fully achievable.

Sometimes it gets ugly when the children are 'ripped' from one parent and
handed over to the other parent.

The court at times issues orders in the process of enforcing its judgement
through the mechanisms available in The Children Act. These include
arrests, which can take place in court. Unfortunately, this can inevitably
happen in the full glare of children who had attended court.

Ultimately, in a regular case, after the judgment, the court settles the
dispute and it is upon the parties to obey the directions of the court.
In most cases, a child will be tormented by what they see in court, which
has psychological effects. We end up having a child who is mentally
disturbed
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

Shadrack Wambui
ENTER MEDIATION

Lawyer Shadrack Wambui, who has also handled family disputes, believes
mediation should be the first priority by courts and lawyers.

Wambui, who is both an advocate and a mediator, is a strong proponent of

this alternative mechanism.

"When these cases end up in court, the court should prioritise mediation as
opposed to having a fight of parties. In protection of the family as a unit, as
provided for under article 45 of the Constitution," he said in an interview
with the Star.

Secondly, he said, mediation should be adopted to safeguard the best

interests of a child as provided for under article 53.

"It is important that the child's welfare is guarded. The child should be
protected from exposure to war where people spew all kinds of words
against each other."

He believes the children are needlessly victimised. "Fahali wawili

wakipigana, nyasi huumia (when two bulls fight, it is the grass that
suffers)."

In cases he has handled, sometimes the fights between parents start from
home, where kids are exposed to violence and later subjected to court
drama.
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

"In most cases, a child will be tormented by what they see in court, which
has psychological effects. We end up having a child who is mentally
disturbed," he said. 

Wambui says he has seen magistrates ordering children to be taken to

psychologists to allow them to cope with what they see in court.

Mediation registrar Carole Kendagor, who also spoke to the Star, believes
all children's cases should take the mediation route as the first option to
ensure the child’s best interest is well taken care of.

“It ought to be a requirement that parties in children's cases attempt

mediation before going for litigation to resolve their dispute,” she said.

She believes mediation will highly likely result in restoration of relations

between parents, hence parental love for the children and their holistic
development. Whereas litigation, being adversarial, may further break
relations between the parties.

“This ruins parental love for the minors’ subject matter to the case and
affects the growth of the children,” Kendagor said.

In mediation, confidentiality is key. However, in litigation, sometimes the

court may order for reports, such as children's officers' reports. The
interview of the minor by a children officer to generate the report has a
negative psychological effect on them.

Kendagor says solving children's cases through mediation saves time as it

takes only 60 days to resolve a case. Secondly, it is cheaper in relation to
litigation.
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

“The cost of mediation for a party in any single case is free. Parties do not
pay for filing case summaries. Neither do the parties pay the mediator. The
government, through the Judiciary, pays the mediator for handling the
case,” the registrar said.

It also guarantees confidentiality in cases, which is vital for the children in

those cases to be psychologically sound.

Since 2019, 46 children's cases were referred for mediation at the Eldoret
law courts, of which 17 have been fully resolved.

The registrar called on lawyers to be more driven by love when it comes to

children's cases and offer mediation as the first option to their clients.

Mediation is a viable method of dispute resolution

— Registrar
It resolves cases in 60 days, while litigation takes three years on
average

The Star / JILLO KADIDA
PARENTAL DEPRIVATION

Psychiatrist Dr Njagi Kumantha believes that what affects children's

mental health is the separation of parents and not necessarily the court.

The impact the separation will have on the children will depend on their
age, he says.
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

Children below seven depend more on their mothers, and separation will
not have much effect if the court rules that they remain with the mother.

The need for a peaceful solution to family disputes is something that is

pushed for globally.

For example, at international level, there is the international academy of

collaborative professionals (IACP), which helps families come up with
peaceful solutions rather than relying on courts.

Anne Tamar-Mattis says the organisation helps families through a process

that is peaceful, dignified and cooperative and that put children’s needs at
the centre.

IACP’s professionals work in teams that include lawyers, mental health

professionals (coaches) and financial professionals, and the process is
guided by the needs and values of the family with the goal of staying out of
court.

The organisation has trained thousands of professionals on every continent

except Antarctica and continues to train professionals and grow the
movement in new areas.

The rise in divorce and separation cases during the Covid-19 pandemic is
something that’s not unique to Kenyans.

According to the BBC, separation and divorce cases have been on the rise
across different countries of the world in 2020.

BBC reported that leading British law firm Stewarts logged a 122 per cent
increase in enquiries between July and October, compared with the same
period last year.
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

The BBC goes on to say that in the US, a major legal contract-creation site
recently announced a 34 per cent rise in sales of its basic divorce
agreement, with newlyweds who’d gotten married in the previous five
months making up 20 per cent of sales.

There’s been a similar pattern in China, which had one of the world’s
strictest lockdowns at the start of the pandemic.

Edited by T Jalio

 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

Aquino, Maria Elena S. Activity No. #1

2nd Year- LM2A

1. Identify what type of ADR was used

As for this article, Mediation is a viable method of dispute that was utilized in this article.

Mediation is a formal ADR procedure. Where in the mediator proposes resolution for the parties

involved. The Mediators control the substance of the conversations and try to reach a mutually

acceptable resolution to the dispute. A common meeting begins by recounting their story. The

middle person mediator listen in and helps them recognize the issues in the said dispute,

offering options for resolution and assisting them in creating a settlement of both parties.

Mediation can take in forms, depending on what the dispute needs. However, for this case, It is

rather Evaluative and Facilitative, the mediator helps the parties directly communicate with each

other, the mediator makes an assessment of the statement of the parties’ claims during

separate meetings and may propose terms of settlement, depending on what information that

was said during the process of dispute.

2. Who are the Parties?

The children who are victim of the aftermath divorce resulting in damage to

physiology, emotionally, mentally and as well as experiencing physical trauma. It scars

the mental health of children who suffers from divorced partners. Another one is those

people who experienced domestic violence, Cases of drug abuse, cybercrime and child

pregnancies.
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

3. What is the dispute?

A toxic family set-up that reflected in a surge of matrimonial disputes. During the

Covid-19 issue, children became the most vulnerable family member. Many were

neglected and left to fathom things for themselves. With all the unprecedented social

and economic pressure (financially, physiology i.e.) on their homes it has brought a lot

of tension. Domestic violence cases shot up, Cases of drug abuse, cybercrime and child

pregnancies arises, particularly during this time. It particularly concerns the child’s

welfare, with lack of guidance, support. Resulting a protection order that will consider as

protection of children against the parents who’s exposed to war where they spew all

kinds of words and actions against each other.

4. Where is the place of settlement?

Cases were referred for mediation at the Eldoret law courts, of which there are

number of cases that have been fully resolved.

5. How is the dispute settled?

In this article it is stated that the Cost of mediation for a party in any single case

is free. Parties do not pay for filing case summaries. Neither do the parties pay the

mediator. The government, through the Judiciary, pays the mediator for handling the

case. It also guarantees neither the confidentiality of the information or claims of both

parties, ensuring the safety and welfare of children, which is vital for the children. The

people called on lawyers to be more driven by care but not neglecting the duties and
 Colegio de San Juan de Letran
COLLEGE OF LIBERAL ARTS AND SCIENCES
151 Muralla Street, Intramuros,
Manila 1002
2nd Semester, AY 2020 – 2021

purpose when it comes to children's cases and offer mediation as the first option to their

clients. This way, going to higher ups won’t be necessary as the dispute can be settled.

Mediation are to be considered when there are parties that has a relationship they want

to preserve. In addition when there are family members, business partners and other

personal relationship people may have to another individual, mediation may be the best

ADR procedure to use. Mediation is also effective when emotions may get in the way of

a solution. A mediator can help the parties communicate in a non-threatening and

effective manner, resulting in offering a resolution in a peaceful way for both parties.