Lost Parentage

By: Omniya Talal

Cairo, Egypt, 17 Nov 2015, (Aswat Masrya) –With a simple stroke of the pen, the father ceased to pay child support for his daughter, four years after his separation from her mother.

The mother, N.A, 49, spent over two-decades of her life in courts to fend off the maneuvers of the husband’s lawyer. She eventually won the case for proving the parentage of her daughter in 2011.

During the prolonged litigation process, N.A. was incapable of having a national ID card issued for her daughter except when the latter turned 25. At that point, the final order concluding the trial had been made.

N.A. was married to A.A, 55, through a customary contract (also known as nikah ‘urfi) after years of love. In 1985, they decided to officially register their marriage with the impending birth of their children. Nonetheless, the official marriage did not last for long due to family disputes. A.A. continued to pay his daughter’s child support for four years, in accordance with an undocumented agreement.

The mother was surprised when the payment suddenly stopped, and the father took the case to court in 1990; denying his parentage of the child. The husband’s lawyer took advantage of the fact that the daughter was born only days after the official marriage was contracted. As such, the court annulled the father’s parenthood of the child.

As a consequence, the Civil Status Bureau denied the daughter a national ID card since there is a court order denying the father’s parenthood. The mother took to court again in 2008, hoping to reverse the initial court order. The court proceedings lasted until 2011 when the court finally reversed the initial order. The court based its decision on the fact that the father continued to pay child support for four years. The latter means that he had already admitted his parenthood of his daughter.

Another Tragedy Titled “Third Time is a Charm”.   These were the father’s words. He uttered them after his wife bore him their third daughter from an officially registered marriage, sentencing his family-life to death. He declared his sentence and left, heedless to the innocent inquisitive look on the face of both daughters when he refused to issue them birth certificates. He took advantage of the law, which grants the father alone the right to register his children.

F.A, the mother, 52, stated that she had to work as a domestic helper to provide sustenance for her children, after the father deserted his family six years into the marriage.

The eldest daughter is now 23, and the youngest is 17. Nonetheless, they still do not have any official papers proving their identity. As a result, they could not access education or obtain a permanent job.

Following years of struggle, which took their toll on the mother’s health, she decided to file for divorce. The latter would entitle her to a retirement pension offered by social security. Fortunately, a public employee in social security referred her to an NGO, which filed two lawsuits for her: One for divorce and the other for proving parentage. In 2011—after just over a year—the court decreed proving the parentage of the daughters to their father.

Ni’ma, the eldest daughter, was not educated since she did not have a birth certificate. Consequently, she could not get a job since she does not possess a national ID card. Moreover, she could not  get married as she does not have any official papers proving her identity.

The cases of N.A. and F.A. exemplify the 15,000 cases of proving parentages that are being tried in Egyptian courts in 2014, according to estimates of judges. Both mother and child suffer the obstinacy of hard-hearted fathers, who are aided by the guile of lawyers. The latter succeed in lengthening the litigation process. They are also aided by the feebleness of the legal framework: The personal status law no. 25 for 1920—amended by law no. 25 for 1929, which is further qualified by law no. 100 for 1985. This investigation reveals the complicity of the law through pursuing six parentage proving cases.

The children suffer whether their parents were married according to an officially registered contract or a customary unregistered one. Courts often decline parentage proving any case, basing their opinion on the predominant view in fiqh that the child is (ascribed to the bed)—that is to say to the husband in a legal marriage.

The issue is exacerbated by the lack of a clause in Egyptian law enforcing the disputing parties to perform a DNA test for the father. Experts consider the latter test to be decisive in resolving these cases because such tests are 99.9% accurate. The test is only undertaken if the father concedes, but courts do not obligate the father to take the test.

The Cairo Centre for Development and Human Rights (CCD) files lawsuits for mothers trying to prove their children’s parentage. Its manager Intisar al-Saeed states that Fatma was incredibly lucky. Her case only took one year and a few months. What made the matter easier is the husband negligence of attending the trial or getting a lawyer. Consequently, the court order proved the girl’s parentage. The court order enabled the mother to issue identity papers for her daughters.

Chancellor Hassan Mansour, the Deputy President of the Appeals Court, estimates the number of parentage proving cases in Egyptian courts at around 15,000 cases in 2014 alone. There are no statistics revealing the number of cases pertaining to customary unregistered marriages versus official registered ones or relationships outside of wedlock.

Judicial activists ascribe father’s denial of their parenthood through multiple reasons. These include poverty and refusing to be financially responsible for them, denying them their inheritance—in the case of daughters— or having them through a customary unregistered marriage.

The tragedy of A.M, 24, started when her husband discovered she is pregnant with a daughter. He threw out and refused to admit to the parentage of the child saying: “I do not want daughters”. At the time, A.M. did not know how to gain her right in proving her daughter’s parentage to the father. Her neighbour, who is a lawyer, advised her to go to the CCD. She decided to file a law suit to retrieve both her right and that of her daughter.        The mother took the case to court, with the help of CCD, in July 2013. The case remained in court for a year with no resolution in sight. Before the final court session, the husband asked his wife drop the lawsuit. The judge obtained a written pledge from the husband to issue a birth-certificate for his daughter, two months before the case was concluded.

“But, he did it again and kicked me out once more during my second pregnancy”—said A.M. “He refused to acknowledge his parentage to the child before I gave birth. As such, I began with the procedures of another lawsuit.”

According to the lawyer Mohammed al-Dakr, proving parentage of children born to a customary unregistered marriage necessitate having the customary marriage contract, and statements of witnesses attesting the presence of a marital relationship. It could also be proven through ascertaining the wife’s residence with a husband in a marital home. As for children had outside of wedlock, the mother has no option except proving a verbally contracted marriage through calling on witnesses. The other option would be a DNA test. In the case of the husband’s abstinence from the text, there is no way to enforce it since it is non-obligatory. As such, there is nothing to prove the child’s parentage and the cases are turned down. Particularly since courts rely on the principle of fiqh, which ascribes (children to the bed). As such, proving the existence of a marital relationship through witnesses, a customary contract, or an official contract is indispensable.

In the cases of officially registered marriages, the marital relationship is proved through the official contract, and witnesses who verify the presence of a marital relationship.

Fawziya Hassan, who is in charge of alternative care in the general department for family and childhood in the ministry of social security, stated that there are 448 homes in Egypt for children with no access to family care. These homes are supervised by social security and run the civil society. She adds that around 80% of those children come from an unknown parentage. On the other hand, only a very small percentage of these children are orphans or deprived of care due to the guardian’s ill health or dire economic circumstances. Fawzia further elucidates that these homes hosted 8187 in 2012. The number rose to 9265 in 2014.

The Right to Identity       

The United Nations Convention on the Rights of the Child (UNCRC), signed in November 1989 and put into effect in September 1990, was signed by Egypt on the 24th of May 1999—shortly before it became effective. Article 7 of the convention stipulates the child’s registration immediately after birth. It also guarantees the child’s right to name, nationality, knowing his/her parents, and being entitled to their care. Nonetheless, the frailty of Egyptian legislation manifested in the personal status law number 25 for 1920, amended by law no. 25 for 1929, which was further amended by law no. 100 for 1985, coupled with lawyers’ ploys obstructs the attainment of these rights.

The signatories of the convention guarantee these rights in accordance with their respective national laws. The latter should be in accordance with the international agreements on these issues, particularly since failure in ensuring these rights renders the child “stateless”. The convention achieves a near universal acknowledgment since all states have signed it with the exception of the United States of America and Somalia.

Article 8 stipulates that States undertake to respect the child’s right to preserve his or her identity. The latter includes nationality, name, and family relations as recognized by the law. If the child is illegally deprived of some or all the elements of his identity, States should provide appropriate assistance and protection to speedily re-establish his/her identity.

Article 15, of the Egyptian Child’s Law no. 126 for 2008 states that “The person responsible for reporting the child’s birth is the father if he is present, or the mother provided she proves the marital relationship according to the executive regulations, managers of hospitals, quarantines, and real estate institutions, and other places where registrations departments may be. Births can also be registered with village mayors or Sheikhs in the case of verified marriages.

The Child’s Law no. 126 for 2008 permits the use of DNA tests. Nonetheless, they are not deemed obligatory. It also facilitates issuing birth certificates for children. Initially, mothers were not allowed to issue birth certificates for their children even in the cases of the officially registered marriages. The right was reserved to the father, paternal grandfather, or paternal uncle. The woman became entitled to this right since 2008 per the Egyptian Child Law no 12 for 1996—amended by law no. 126 for 2008. Nonetheless, the birth certificate is to be issued in the name of her father or any other name chosen by the civil registration service till the parentage proving case is resolved.

Secret Marriages:

Taher Abu-Nasr the lawyer claims that most parentage proving cases pertain to customary or secret marriages, as the father refuses to acknowledge the children’s parentage. There are minorities of cases, where the marriage is an officially registered one. The cases take a long time if the woman is incapable of proving the marital relationship, he adds. Abu-Nasr also points to the problem of secret marriages, which occurs through a secretive agreement between a man and a woman. They may document the agreement or a piece of paper or not. In either case, however, the families are unaware of the marriage and there are no witnesses to it. These kinds of marriages heightened the problems of proving children’s parentage.

A chancellor in al-Zananeeri family court in Cairo, who requested to remain anonymous, stated that proving parentages in Egypt are still based on evidence admitted by fiqh. These do not include DNA tests, he further elaborates that the inability to prove the marital relationship results in rejecting the case.

He further points to the fact that the mother, filing the lawsuit, has to prove the marital relationship through witnesses, a customary or an official contract, stating that “if the mother does not prove the marital relationship, there will be no court order. Proving the marriage in the case is synonymous with proving parentage”.

As for the long period required to look into parentage proving cases, he elucidates that a judge on average looks into more than 70 cases pertaining to personal status law per day. The matter pushes the judge to postpone more than once and stalls the cases in courts.

From Unknown Parentage to Orphans

Last April, President Abdel-Fattah al-Sissi issued a decree amending one of the clauses in social security law. The move expands the definition of the orphan to include children with an unknown parentage. Nonetheless, proving parentage remains a chronic problem.

The decree amended the second article of the social security law no. 137 for 2010, stipulating the definition of the orphan as such: “anyone who has lost both parents, lost his father and his mother remarried, his father is unknown, or both his parents are unknown”.

The amendment shifts the categorization of children with an unknown father or parents from the category of unknown parentage, per the old law, to the category of orphans in accordance with the change.

Hany Helal, the president of the Egyptian Association for Child’s Rights, states that the amendment to the law, and the ensuing consideration of children with unknown parentage to be orphans, is an attestation to their economic and social rights on par with orphans.

In April 2015,the administrative Judicial Court in Egypt, in claim no. 41215 for 68, obligated the Ministry of Interior to temporarily register children born to customary marriages with the father name stated by women. The registration is temporary until the court rules in parentage proving cases. Moreover, the administrative judiciary court held the Ministry of Education responsible for admitting the child to schools in accordance with his age.

The court relied in its order on the fact that the legislator in the Egyptian constitution, Child Law, and Personal Status Law, emphasized the child’s right to his parentage and to a name. The latter mark his societal identity and preserve his dignity and humanity. Consequently, the child is entitled to his full rights. These include the right to education and health. These rights are prioritized over the legal disputes, which may occur between various parties regarding the legality of the marriage or parentage.

According to Intisar al-Saeed, in the case of children born outside of wedlock, they are registered in the mother’s name. The civil registration service chooses a name for the father. The child is registered under a code—known only to the registration service—which discloses that the child’s parentage is unknown. In this manner, the child becomes eligible for a birth certificate, which entitles him for the necessary vaccinations, and the right of education. However, the child is deprived of other rights such as child support, inheritance, and the father’s pension until his parentage is proven. Parentage Proving Cases Affect Celebrities Among the well-known parentage proving cases is the one filed the famous artist (sh. A). She struggled for years to prove her parentage to her father’s illustrious family. Her mother had secretly married a lawyer (A.A). After 16 years spent in courts, (Sh.A.) succeded in proving her parentage to her father—according to a news report published on the website of al-Arabiya Channel.

As for the actor A.A. his parentage proving case ended with his acknowledgement of his customary unregistered marriage to (H.A). The family appeal court in al-Zananeeri order proving the parentage of the child to her father A.A., after two years spent in court. During those two years, the father refused to undertake the DNA test to prove parentage. He conducted tens of interviews during which he denied his marriage to (H.A.) as well as his parenthood of the daughter. This is also according to a news report published on the website of al-Arabiya Channel.

The case of the actress Zeina against the actor Ahmed Ezz lasted for 18 months, which is considered to be a comparatively short period.

Ezz had denied the marriage, and refused to undertake the DNA test. However, the court deemed the marriage to be real, after Zeina succeded in proving the marital relationship. As such, the court relied on the dominant view in the Hanafi School of fiqh stating that (the child is ascribed to the bed). The latter is enshrined in article 4, from law no. 1 for 2001 as well as article 280 of law 78 for 1931, according to the statements given by Mohammed al-Dikr—Zeina’s Lawyer—to Aswat Masriyya.

Nonetheless, Ahmed Ezz’s defence team appealed the decision of the family court. The latter had ordered proving the parentage of Zeina’s twins to Ahmed Ezz as their father. This means another round for the trial.

The Lengthy Litigation Period:       

While laws and international agreements have guaranteed the child’s right to a name and parentage, the reality has another story to tell. Parentage proving cases in Egypt could last for years in courts, aborting the child’s dreams to an innocent dreamy childhood, free of problems.

The issue is owed to the absence of a clause in the Egyptian law, which enforces the disputing parties to undertake a DNA test.

The Egyptian Feminist Union—founded in the wake of the 25th revolution to defend women’s rights—called for amending the Egyptian personal status law. It demanded adding new articles to the law. It additionally pressed for unifying all family laws in one law code. These steps aim at ensuring women can realize all their legal rights. The latter include obligating the father to undertake DNA tests, whenever the parentage is disputed.

Mohammed al-Dikr, Zeina’s lawyer, told Aswat Masriyya, that the litigation process could extend for an extensively long-time period. Article (9) of law no.10 for 2004, which pertains to family courts, and article (63) of pleading law, contribute to the matter.

Article (9) stipulates that no lawsuit taken to Family court shall be accepted, if it can be resolved outside of court. They are conditioned on filling a request, submitted to family mitigation offices, responsible for resolving the disputes. Al-Dikr stated that these offices take 15 days in attempts end the dispute. “Afterwards”, he adds, “the applicant goes to the court, more accurately to court-writer, who drafts the lawsuit, detailing its support, the relevant articles of the law, and the demands”. The procedures are completed when the applicant takes the lawsuit to the designated office in the Family court, responsible for registering the claims and informing the opponents. If the opponent fails to attend the first court-session, he is re-informed and the lawsuit continues at a slow pace.

Article (63) stipulates that the claim should include the following information:

1.  The name of the claimant, his/her title, occupation, place of residence, the name of his/her representative, title, and career, or his/her occupation and place of residence.

2.  The name of the opponent, his title, career or occupation, and place of residence. If his/her place of residence is unknown, then his most recent known place of residence is used.

3.  The date of filing the lawsuit.

4.  The Court where the lawsuit is trialled.

5.  Detailing a contact address for the claimant in the city where the lawsuit is being trialled, if it is not his city of residence.

6.  The details of the lawsuit, the demands of the claimant and their support. Al-Dikr states that “Zeina’s case took only 18 months while others last for years”. He pointed to the opponents’ attempts to prolong the trial period through filing police reports and requesting they be added to the case, through presenting a new document each session, or through filing complaints, which necessitate the response of the judges.

The Foundering of the Law

Al-Dikr adds that DNA tests are among the evidence admitted in the process of proving parentage. Yet, it is not obligatory and there are no repercussions for refusing to undertake it. He considers this point a flaw in Egyptian legislation. However, he views the refusal to undertake the test as a circumstantial evidence not in favour of the presumed father.

On the other hand, the mother’s inability to present witnesses, who prove her claim to a marital relationship results in dismissing the case. The latter inability is taken as a circumstantial evidence in favour of the opponent.

Fatma Salah, the head of the legislative unit in CCD, points out that this kind of case should not take more than 6 months to be resolved by courts if the procedures go smoothly. Yet, they often take a year due to the father’s refusal to undertake a DNA test. Consequently, the burden of proving the marital relationship falls on the mother alone.

The lawyer Taha Abu-Nasr claims that “the litigation system in Egypt needs to be restructured”. He revealed that parentage proving cases in Egypt take a year to resolve due to the ploys of the lawyers, the lengthy litigation process, and the failure to enforce DNA tests. He also pointed that the opponent seeks to prolong the process by presenting a new document in each court session. Moreover, the opponent often files police reports and requests their unnecessary inclusion in the lawsuit. In this manner, he succeeds in stalling the court order.

Decisive Evidence

Dr. Abd al-Hady Misbah, the specialist in immunology and medical testing, asserts that determining parentage through DNA tests is 99.9% accurate. He further explained that the fetus bears 50% of the mother’s DNA fingerprint, and 50% of the father’s DNA fingerprint.

Misbah elaborates “In cases where the father is absent, parentage can be proven through the DNA finger prints of the paternal and maternal uncles. The child bears 25% of the paternal uncle’s DNA fingerprint, and another 25% of the maternal uncle’s DNA fingerprint”.

He proclaims that DNA-testing is the most accurate test possible to ascertain the genetic fingerprints. He states that “DNA testing is the real deal, nothing else can prove parentage”.

Dr. Mahmoud Ahmed, the chief forensics doctor, insisted that the medical forensics agency is the only official body, carrying out DNA testing acceptable in courts and parquets.

DNA testing costs no more than 400 EGP per sample (around $50).

He elucidates the matter further saying that one often needs samples from the father, the mother, and the uncles to ascertain parentage in one single case.

Obligating parents to undertake the test can decisively resolve the matter, answering a question that may haunt the child throughout his life concerning the identify of his father. However, it can not heal the wounds incurred due to the father’s denial of parentage nor can it return the lost days of innocence.

This investigation was completed with support from Arab Reporters for Investigative Journalism (ARIJ) www.arij.net.