CHILDREN RIGHTS UNDER THE KENYAN REGIME AND ISSUES ARISING

Achieving Best Interest of the Child

 

Children are adorable, yet vulnerable. They are the future of any generation. By their nature there is need to protect, guide and nurture them to be better and more equipped for posterity of humanity, hence the need for an apt legal and social regime to ensure their wellbeing is looked after.

 

Article 53 of the Constitution enshrines the rights of the Children and places the obligation to ensure that these rights are met on the parents of the child in equal measure whether or not they are married. These rights include providing quality education basic needs and protecting the children from harmful environments, exploitative labour, neglect, abuse and violence. The constitution goes on to emphasize that the child’s best interest is paramount  in all matters concerning a child.

 In July 1990 Kenya ratified the Convention on the rights of the child. On the 29TH November, 1999 the African Charter on the Rights and Welfare of the Child was ratified. Ratification of these crucial instruments manifested the country’s resolve to promote and protect the rights of Children.

Moving forward, Parliament enacted the Children Act in 2001. This Act was to give effect to the principles of children Rights contained in the ratified Instruments as was obligated. The Act made provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children; and to make provision for the administration of children’s institutions.

Be that as it may the Act presented some flaws and a lacuna identified which elicited the need to review. The process began in 2005 dragging on and on until finally The Children Act N0.29 of 2022 assented on 6th July, 2022 and enacted on the 26th July, 2022 was begotten. This Act is to give effect to Article 53 of the Constitution thus;

Ø  to make provision for children rights, parental responsibility, alternative care of children including guardianship, foster care placement and adoption, to make provision for care and protection of children in conflict with the law; to make provision for and regulate the administration of children services; to establish the National for Children services and for connected purposes.  

 

The new Act presents a new dawn for all children and especially those caught up on the wrong side of the law. By a long shot it is a refinement of the previous legislation and exudes a prolific legal framework on matters child for posterity. Certain augmentations made to the previous Act evidently are;

Ø  inclusion of some new definitions aimed to address emerging issues such as radicalization, online abuse, female genital mutilation, forced circumcision for the boy child, child trafficking but to mention a few.

 

Ø  The Act clearly recognizes vulnerable children and for the best possible approach to resolve their concerns.

 

Ø  Further there is a provision for social security to the children through an elaborate Child Welfare schemes and child care facilities in their respective counties over and above taking charge of pre-primary education.

 

Ø  Another noteworthy aspect is that the Act has made provision for diversion, which essentially means that children who commit minor offences will not be directly taken through the criminal justice system but should be dealt with through community based support systems.

 

Ø  The criminal responsibility age has also been raised form 8 years to 12 years and is now mandatory for children in conflict with the law and those in the legal process to have legal aid.

 

Ø  Finally, It has also made mandatory that police stations shall have child protection units to ensure that children are not detained in the same facilities as adults. On the issue of adoption a new concept being ``Kinship adoption’’ has been introduced. This will allow a relative wishing to adopt a child to do so using a procedure that is simpler, cheaper and expeditious with lesser legal technicalities. This is also available to the Islamic Religion.

 

This overview of the current Children Act reveals the manner in which it is progressive and will go a long way in support of the promotion and protection of Child rights in the Country to achieve the most crucial principles of the best interest of a child. It is now incumbent on the judicial system and all stake holders to ensure that these provisions are followed and implemented accordingly for the welfare of the children.

 

 

 

CHILD CUSTODY AND MAINTENANCE

Some of the issues arising in this regime is Child Custody and Maintenance. In this article I will as simply as I can bring out the difference between Child Custody and maintenance and also assist the reader to understand the law applicable to both.

Child custody is undeniably always a sensitive issue between parents when their relationship is no more. Where they are unable to decide as to who will stay with the child the dispute arising is a child custody dispute. This will attract questions with regard to who will cater for the maintenance and child support.

 

Child, Custody Care and Control

 

Section 2 of the Children Act N0.29 of 2022 defines Custody to mean lawful custody whether by operation of Law, written Agreement or Order of a Court of Competent Jurisdiction.

Child Custody is twofold;

a)   Legal Custody:- refers to the conferment of parental rights and responsibilities of a person having lawful custody over a child for a defined period of time under an order of a Court of competent jurisdiction. Child maintenance is only paid by the parent who has been given legal custody. This informs the reasoning behind the Courts first granting joint legal custody before dealing with actual custody and maintenance.

 

b)   Actual custody:- This the care and control of the child. It is the physical possession, care and control of a child whether or not such custody is exercised independently or jointly with another person. Whoever, is granted actual custody is the person who will live with the child.

 

The court will always be guided by the best interest principle in making a determination of which parent to award actual custody.  Moreover, Section 103 of the Children’s Act sets out the following principles guiding the court in making a custody order:

 

i)     The conduct and wishes of the parent or guardian of the child

ii)   The ascertainable wishes of the relatives of the child

iii)  The ascertainable wishes of the child taking into account the child’s evolving capacity

iv)  Whether the child has suffered any harm or is likely to suffer any harm if the order is not made.

v)    The customs of the community to which the child belongs

vi)  Religious persuasion of the child

vii) Whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned and whether those orders remain in force.

 

viii)   The circumstances of any sibling of the child concerned and of any other children of the home if any

 

ix)  The best interest of the child.

 

Upon consideration of the above factors, the Court will then proceed to make a custody order. Often the court is guided by official inquiry reports made by Child services department, and then a decision is made on whether or not to recommend either parent to have custody of their child.

Child Maintenance

This refers to the duty of the parents to provide the basic needs of the child.

Article 53(1) e of the Constitution provides that a child has the right to equal responsibility from both parents to maintain the child. The Children court will take into account the needs of the child and split them equally between the parents by a consequent maintenance order. This is an order issued by a court directing a specified person to make such periodic or lump sum payment for the maintenance of the child on such terms as the court may consider appropriate.

The Court is mandated to consider the financial ability of each parent to maintain the child. To this end, courts will ask both parents to swear affidavit of means which shows how much the parent earns in a month and how much they spend.

In the event either parent violates a maintenance order, it is treated as contempt of Court, and the violating parent may be condemned to jail term on for the same.

CONCLUSION

The guiding principle behind making of custody or a maintenance order is the best interest of the child. If this is well understood among parents, the probability of a rigorous prolonged litigation in court on matters of child support and custody will be thwarted.


 Wangu Kimure: Advocate; kellenkimure@gmail.com

REFERENCES

Children Act N0.29 of 2022

The Constitution of Kenya, 2010

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