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Children's Act

This Is An Act Of Parliament Enacted To:

  • Provide For And Regulate Parental Responsibility, Fostering, Adoption, Custody, Maintenance, Guardianship, Care And Protection Of Children
  • To Guide The Administration Of Children’s Institutions
  • To Give Effect To The Principles Of The Convention On The Rights Of The Child And The African Charter On The Rights And Welfare Of The Child
  • For Any Other Connected Purposes

This is created under Section 32 of the Act to exercise general supervision and control over the planning, financing and co-ordination of child rights and welfare activities and to advise the Government on all aspects thereof.

 

  • Design and formulate policy on the planning, financing and coordination of child welfare activities;
  • Determine priorities in the field of child welfare in relation to the socioeconomic policies of the Government;
  • Plan, supervise and co-ordinate public education programmes on the welfare of children;
  • Facilitate donor funding of child welfare projects;
  • Co-ordinate and control the disbursement of all funding that may be received by the Council for child welfare projects;
  • Provide technical and other support services to agencies participating in child welfare programmes;
  • Prescribe training requirements and qualifications for authorised officers;
  • Ensure the enhancement of the best interests of children among displaced or unaccompanied children held in care, whether in refugee camps or in any other institution;
  • Ensure the full implementation of Kenya’s international and regional obligations relating to children and facilitate the formulation of appropriate reports under such obligations;
  • Participate in the formulation of policies on family employment and social security, that are designed to alleviate the hardships that impair the social welfare of children;
  • Work towards the provision of social services essential to the welfare of families in general and children in particular;
  • Consider and approve or disapprove child welfare programmes proposed by charitable children’s institutions in accordance with section 69;
  • Formulate strategies for the creation of public awareness in all matters touching on the rights and welfare of children;
  • Set criteria for the establishment of children’s institutions under this Act;
  • Design programmes for the alleviation of the plight of children with special needs or requiring special attention;
  • Establish panels of persons from whom guardians ad litem appointed by the court may be selected by the court to assist the Minister in carrying out his duties under this Act and in particular in the appointment of any officers prescribed under this Act, in the establishment of children’s institutions and the formulation of any regulations that may be provided under this Act;
  • Establish Area Advisory Councils to specialise in various matters affecting the rights and welfare of children;
  • Create linkages and exchange programmes with other organisations locally and abroad;
  • Endeavour to create an enabling environment for the effective implementation of this Act

The Council can be reached on:

National Council for Children's Services,
Bishops Road,
Social Security House,Block "C" 4th Floor
P. O. Box 6446-00100,
Nairobi, Kenya.
Telephone:+254 020 2691023
E-mail: [email protected]
           [email protected]

Website: www.childrenscouncil.go.ke

Under Section 22, the Act provides that where the rights of a child are being or are likely to be contravened any person may apply to the High Court for redress on behalf of that child. Thereafter the court may make any orders it deems necessary to enforce the said rights. The Chief Justice may make rules to govern the court with respect to this matter.

Section 21 provides that every Child has a duty to:

    Work for the cohesion of the family
    Respect his parents, superiors and elders at all times and assist them in case of need
    Serve his national community by placing his physical and intellectual abilities at its service
    Preserve and strengthen social and national solidarity
    Preserve and strengthen the positive cultural values of his community in his relations with other members of that community
This may however be varied considering the age and ability of a child and such other limitations contained in this Act.
 

Parental responsibility refers to all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child. (Section 23)

  1. the duty to maintain the child and by particularly providing him with;
    • adequate diet;
    • shelter;
    • clothing;
    • medical care including immunisation
    • education and guidance;
  1. the duty to protect the child from neglect, discrimination and abuse;
  2. the right to—
    • give parental guidance in religious, moral, social, cultural and other values;
    • determine the name of the child;
    • appoint a guardian in respect of the child;
    • receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child;
    • arrange or restrict the emigration of the child from Kenya;
    • upon the death of the child, to arrange for the burial or cremation of the child.

 

Section 24 of the Act provides that:

  1. Where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility.
  2. Where a child’s father and mother were not married to each other at the time of the child’s birth and have subsequently married each other, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility.
  3. Where a child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other—
    • the mother shall have parental responsibility at the first instance;
    • the father shall subsequently acquire parental responsibility for the child in accordance with the provisions of section 25.
  4. More than one person may have parental responsibility for the same child at the same time.
  5. A person who has parental responsibility for a child at any time shall not cease to have that responsibility for the child.
  6. Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.
  7. The fact that a person has parental responsibility for a child may not entitle that person to act in any way which would be incompatible with any order made with respect to the child under this Act.
  8. A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf.
    • The person with whom such arrangement is made may himself be a person who already has parental responsibility for the child concerned.
    • The making of any such arrangement shall not affect any liability of the person making it which may arise from any failure to meet any part of such person’s parental responsibility for the child concerned.

Where parents were married at birth of the child or have thereafter married;

  1. On death of mother parental responsibility is passed to the father
  2. On death of mother it is passed to the mother
  3. If both parents are deceased it is exercised by;
    • Testamentary guardian appointed by either parent
    • Testamentary guardian appointed by court
    • A person who has a residence order still in force and made before death of the parents
    • A fit person appointed by court
    • In absence of all the above, then a relative of the child

Where parents were never married;

  1. On death of mother, it is passed to father if he had acquired responsibility
  2. On death of father who had acquired responsibility, it is passed to the mother
  3. If surviving spouse is unfit to exercise this responsibility, relatives of deceased parent may apply to court for orders to safeguard interests of the child.

Under Section 28, the Court may extend parental responsibility in respect of a child beyond the age of 18 years. This is where it is satisfied that special circumstances exist with regard to the welfare of the child to make this extension necessary. The application is done after the child turns 18. This order may be applied for by;

  • the parent or relative of the child
  • any person having parental responsibility over the child
  • the director
  • the child

Court may also make this order without such application.

The establishment of Rehabilitation Schools is provided for under section 47 of the Act. 

The purpose of rehabilitation schools is to provide accommodation and facilities for the care and protection of children.

When a Children’s Court gives a committal order to that effect.

By application of Director of the school to children’s court for revocation of the committal order

  • Revocation of committal order by court on its own motion or on application by any person
  • When a child attains the age of 18 years
  • On expiry of 3 years from the time the committal order was made (unless court orders otherwise)

Kabete Rehabilitation School

Nairobi Children’s Home

Getathuru Rehabilitation School

Dagoretti Rehabilitation School

Kirigiti Rehabilitation School

Wamumu Rehabilitation Centre

Othaya Rehabilitation Centre

Likoni Rehabilitation Centre

Kericho Rehabilitation Centre

Kakamega Rehabilitation Centre

A charitable children’s institution is a home or institution which has been established by a person, corporate or unincorporated, a religious organisation or a non-governmental organisation and has been granted approval by the Council to manage a programme for the care, protection, rehabilitation or control of children (Section 58).

Purpose and function of the institution is to manage a programme for the care, protection, rehabilitation or control of children.

  • During emergencies where an authorised officer believes the child is in need of care and protection.
  • When a child is referred to the institution by way of an interim care order or a care order.

A child leaves the institution when his guardian or parent applies to the Director for his release - Section 63 (2) (a)

Children’s court is a court established under section 73 of the Act to;

  • conducting civil proceedings on children’s matters
  • hearing any charge against a child, other than a charge of murder or a charge in which the child is charged together with a person or persons of or above the age of eighteen years;
  • hearing a charge against any person accused of an offence under this Act
  • exercising any other jurisdiction conferred by the Children’s Act or any other written law:
  1. Consider the welfare of the child before making any order.
  2. Any delay in determining a question of upbringing of a child is likely to be prejudicial to the welfare of the child.
  3. When making orders with regard to a child court considers;
    • The ascertainable feelings and wishes of the child concerned with reference to the child’s age and understanding;
    • the child’s physical, emotional and educational needs and in particular, where the child has a disability, the ability of any person or institution to provide any special care or medical attention that may be required for the child;
    • the likely effect on the child of any change in circumstances;
    • the child’s age, sex, religious persuasion and cultural background;
    • any harm the child may have suffered, or is at risk of suffering;
    • the ability of the parent, or any other person in relation to whom the court considers the question to be relevant, to provide for and care for the child;
    • the customs and practices of the community to which the child belongs;
    • the child’s exposure to, or use of drugs or other psychotropic substances and, in particular, whether the child is addicted to the same, and the ability of any person or institution to provide any special care or medical attention that may be required for the child;
    • the range of powers available to the court under this Act.
  4. Court may call any expert witness it deems appropriate to provide assistance the court.
  5. In proceedings concerning a child, details of the child, their parents or relatives are not to be published or revealed.

Custody with respect to a child, refers to the parental rights and duties relating to the possession of a child

Custody of a child may be granted to: (section 82)

  • a parent;
  • a guardian;
  • any person who applies with the consent of a parent or guardian of a child and has had actual custody of the child for three months preceding the making of the application;
  • any person who, while not falling within paragraph (a), (b) or (c), can show cause, having regard to section 83, why an order should be made awarding that person custody of the child.

The following are the Principles guiding Court in making a custody order (Section 83)

  • the conduct and wishes of the parent or guardian of the child;
  • the ascertainable wishes of the relatives of the child;
  • the ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his home in the last three years preceding the application;
  • the ascertainable wishes of the child;
  • whether the child has suffered any harm or is likely to suffer any harm if the order is not made;
  • the customs of the community to which the child belongs;
  • the religious persuasion of the child;
  • whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether those orders remain in force;
  • the circumstances of any sibling of the child concerned, and of any other children of the home, if any;
  • the best interest of the child.
  • Where custody is given to one party in a marriage or joint guardianship,, court may order that the other party shall have jointly all or any rights and duties in relation to a child, other than the right of possession.
  • Where a decree nisi or absolute is pronounced in respect of a person whose conduct makes him unfit to have legal custody, upon death of the other parent, such person shall not be entitled to legal custody of the child except with the leave of the court.
  • Court may revoke a custody order upon application for such revocation
  • A custody order ceases to have effect when a child attains the age of 18 (unless court extends it).
  • Maintenance is an amount of money or financial provision paid for the daily needs of a child.
  • A parent, guardian or custodian of a child pays maintenance.
  • One applies for maintenance by making an application to a Children’s Court.
  • Court can also give a maintenance order when making or varying a custody or residence order
  • a person who has attained the age of eighteen years may, with the leave of the court, apply to the court for a maintenance order if the person is involved in education, is disabled, or suffers from an illness that extends beyond the age of 18 or other similar circumstances exist.
  • Joint maintenance refers to a situation where both parents of the child are both involved in maintenance of the child.

Where can an order for Joint Maintenance be made - section 90

  • Where parents of child were married to each other at birth of child and are alive.
  • Where two or more guardians of the child have been appointed.
  • Where two or more custodians have been appointed in respect of a child
  • Where a residence order is made in favour of more than one person
  • Where the mother and father of a child were not married to each other at time of birth of the child and have not subsequently married, but the father of the child has acquired parental responsibility for the child, it shall be the joint responsibility of the mother and father of the child to maintain that child.

Court considerations in granting maintenance for a child born outside marriage – section 94

  • The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future;
  • the financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future;
  • the financial needs of the child and the child’s current circumstances;
  • the income or earning capacity, if any, property and other financial resources of the child;
  • any physical or mental disabilities, illness or medical condition of the child;
  • the manner in which the child is being or was expected to be educated or trained;
  • the circumstances of any of the child’s siblings;
  • the customs, practices and religion of the parties and the child;
  • whether the respondent has assumed responsibility for the maintenance of the child and if so, the extent to which and the basis on which he has assumed that responsibility and the length of the period during which he has met that responsibility; whether the respondent assumed responsibility for the maintenance of the child knowing the child was not his child, or knowing that he was not legally married to the mother of the child;
  • the liability of any other person to maintain the child;
  • the liability of that person to maintain other children.

This is an agreement entered into by the parents, guardians or custodians of a child, whether oral or written in respect of the maintenance of the child.

The court may, upon application, vary the terms of the agreement if it is satisfied that such variation is reasonable and in the best interests of the child

A guardian is a person appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child in accordance with the provisions of this Act.

How and when a guardian is appointed

  • Either parent of a child may, by will or deed, appoint any person to be the guardian of the child after that parent’s death. Section 104
  • On application to court by any individual where the child’s parents are no longer living, or cannot be found and the child has no guardian - section 105
  • On the application of any individual, where the child is a displaced child – section 105

Rights and responsibilities of a guardian appointed in respect of a child

To assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child

Rights and responsibilities of a guardian appointed in respect of the estate only

  • the power and responsibility to administer the estate of the child and in particular to receive and recover and invest the property of the child in his own name for the benefit of the child;
  • the duty to take all reasonable steps to safeguard the estate of the child from loss or damage;
  • the duty to produce and avail accounts in respect of the child’s estate to the parent or custodian of the child or to such other person as the court may direct, or to the court, as the case may be, on every anniversary of the date of his appointment;
  • to produce any account or inventory in respect of the child’s estate when required to do so by the court.

How and when a guardian can be removed –section 106

  • Appointment of a testamentary guardian revokes all earlier appointments unless it is meant to be additional
  • Appointment of a testamentary guardian is revoked if the person making it revokes it by an instrument signed by him or at his direction in his presence and in the presence of two witnesses who each attest to the signature.
  • Appointment of testamentary guardian is revoked if the will or codicil is revoked
  • A person so appointed may disclaim their  appointment by an instrument signed by him and made within reasonable time
  • Any appointment of a guardian may be brought to an end at any time by order of the court on the application of—

(a) any parent or guardian; or

(b) the child concerned, with the leave of the court; or

(c) a relative of the child

Under Section 119, a child in need of care and protection is a child;

  • who has no parent or guardian, or has been abandoned by his parent or guardian, or is destitute; or
  • who is found begging or receiving alms; or
  • who has no parent or the parent has been imprisoned; or
  • whose parents or guardian find difficulty in parenting; or
  • whose parent or guardian does not, or is unable or unfit to exercise proper care and guardianship; 
  • who is truant or is falling into bad associations; or
  • who is prevented from receiving education; or
  • who, being a female, is subjected or is likely to be subjected to female circumcision or early marriage or to customs and practices prejudicial to the child’s life, education and health; or
  • who is being kept in any premises which, in the opinion of a medical officer, are overcrowded, unsanitary or dangerous; or
  • who is exposed to domestic violence; or
  • who is pregnant; or
  • who is terminally ill, or whose parent is terminally ill; or
  • who is disabled and is being unlawfully confined or ill-treated; or
  • who has been sexually abused or is likely to be exposed to sexual abuse and exploitation including prostitution and pornography; or
  • who is engaged in any work likely to harm his health, education, mental or moral development; or
  • who is displaced as a consequence of war, civil disturbances or natural disasters; or
  • who is exposed to any circumstances likely to interfere with his physical, mental and social development; or
  • if criminal offences have been committed against him or if he is a member of the same household as a child against whom any such offence has been committed, or is a member of the same household as a person who has been convicted of such an offence against a child; or (s) who is engaged in the use of, or trafficking of drugs or any other substance that may be declared harmful by the Minister responsible for Health.

Proceedings in respect of such children – section 120

  • Anybody can report a child in need of care and protection to the nearest authorised officer.
  • Any authorised officer may take to a place of safety any child who is about to be brought before a court as being in need of care and protection. A parent or guardian ay however apply to the Director for the release of such child. If the Director refuses to release t6he child he should do so in writing and give reasons for the refusal. The parent or guardian may then apply to court for the discharge of the child from the place of safety.
  • Any authorised officer having reasonable grounds for believing that a child is in need of care and protection may apprehend him without warrant, and in such a case shall without delay bring him before a Children’s Court
  • Court may order for the temporary accommodation of the child in a place of safety. Court will then try and contact the parent or person having parental responsibility of the child.
  • When applying for a court order in respect of a child in need of care and protection, the intended applicant should notify the Director or his representative, of the name and address of the child and the day and hour when, and the nature of the grounds on which, the child is to be brought before the court. The Director will then conduct investigations regarding the child to assist court.
  • A local authority or children’s institution may also receive a child who seems to be in need of care and protection and need not bring him before court immediately as long as ;
    • the local authority or charitable children’s institution notifies the Director within seven days of receiving the child into its care;
    • the child shall be brought before a court within three months;
    • a monthly report is rendered to the Director of all children received and held;
    • all cases are investigated by the local authority, or charitable children’s institution;
    • the local authority or charitable children’s institution shall not retain the child in its care if his parent or guardian seeks to assume the care of the child;
    • the local authority, or institution shall, if it is in the interest of the child, ensure that the care of the child is assumed by a parent or guardian or a person who has parental responsibility for the child by a relative or friend who should, if possible, be of the same religion, race, tribe or clan as the child.

Such institution or authority is entitled to recover the cost of maintaining the child from his parent, guardian or the person who has responsibility for the child.

Foster care placement refers to the placing of a child with a foster parent by the director or manager of an institution where a child been committed to a rehabilitation school or to a charitable children’s institution. (Section 147)

Who can be a foster parent? – Section 148

Residents of Kenya (for at least 1 year) who are;

  1. Spouses of a marriage;
  2. a single woman not below the age of twenty-five years (but cannot foster male child)
  3. a single man not below the age of twenty-five years ( but cannot foster female child)

Duties and responsibilities of a foster parent are the same responsibilities in respect of the child’s maintenance as if he were the parent of the child. Section 147 (3)

Adoption is the vesting of parental rights and duties relating to a child in the in a person, who is called an adopter.

Children who can be adopted- section 157

Child resident in Kenya may be adopted as long as the said child has been in the continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the filing of the application.

Qualifications to adopt a child – section 158

The applicant or at least one of the joint applicants;

  • has attained the age of twenty-five years and is at least twenty-one years older than the child but has not attained the age of sixty-five years; or
  • is a relative of the child; or
  • is the mother or father of the child.

Persons who cannot adopt

  • Persons not of sound mind
  • Persons charged and convicted by a court of competent jurisdiction for any of the offences set out in the Third Schedule to this Act or similar offences;
  • Homosexuals;
  • in the case of joint applicants, if they are not married to each other;
  • sole foreign male applicant
  • Any person if court is satisfied that it such adoption is not in the best interest of the child

The following persons may not adopt unless they satisfy court that special circumstances justify the adoption.

  1. A sole male applicant in respect of a female child;
  2. a sole female applicant in respect of a male child;
  3. an applicant or joint applicants who has or both have attained the age of sixty-five years;
  4. a sole foreign female applicant.

The process of adoption

  • Child must be at least six weeks old
  • Child must have been declared free for adoption by a registered adoption society
  • Apply to court for adoption
  • Court appoints a guardian ad litem for the child pending the hearing and determination of the adoption application – section 160.
  • Court may make such interim orders as appear just in respect to the legal custody, maintenance, access, education, residence, safety, or welfare of the child generally and parental responsibility in respect of the child while the application is pending in court – section 161 (2)
  • Court determines the application.

Process for international adoptions – section 162

Persons to apply to court for adoption and ensure that they;

  • Obtain necessary consents
  • Satisfy court that their country will respect the adoption order if made
  • Be authorised and recommended persons for adoption in their country

A child offender is a person who commits an offence while below the age of 18 years.

Rights of a child offender

  • be informed promptly and directly of the charges against him;
  • if he is unable to obtain legal assistance, be provided by the Government with assistance in the preparation and presentation of his defence;
  • have the matter determined without delay;
  • not be compelled to give testimony or to confess guilt;
  • have free assistance of an interpreter if the child cannot understand or speak the language used;
  • if found guilty, have the decisions and any measures imposed in consequence thereof reviewed by a higher court;
  • have his privacy fully respected at all the proceedings;

if he is disabled, be given special care and be treated with the same dignity as a child with no disability.

How court deals with guilty child offenders – section 191

  • By discharging the offender under section 35(1) of the Penal Code (Cap. 63);
  • by discharging the offender on his entering into a recognisance, with or without sureties;
  • by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap. 64);
  • by committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;
  • if the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;
  • by ordering the offender to pay a fine, compensation or costs, or any or all of them;
  • in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;
  • by placing the offender under the care of a qualified counsellor;
  • (by ordering him to be placed in an educational institution or a vocational training programme;
  • by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap. 64);
  • by making a community service order; or
  • in any other lawful manner.
  • No child offender is to be subjected to corporal punishment

If a child is charged with an offence for which a fine may be imposed, court may order the parents or guardian to pay such fine. The parent or guardian may appeal to the High Court against such order. Section 193

A child may be remanded in a borstal institution if bail is not granted and the child is over 15 years and the child proves to be so unruly a character that he cannot safely be remanded in a children’s remand home or if the child has proved to be of so depraved a character that he is not fit to be so remanded. A remand in custody is not to exceed:

  • six months in the case of an offence punishable by death; or
  • three months in the case of any other offence

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