.jpg "Parental Rights and Responsibilities Under Kenyan Law")
1. The Constitution of Kenya (2010)
Under Article 53 of the Constitution, every child has the
right:
- To
parental care and protection, which includes equal responsibility of the
mother and father, whether they are married to each other or not.
- To
be protected from abuse, neglect, harmful cultural practices, and all
forms of violence or exploitation.
2. The Children Act (2022)
The Children Act (2022), which replaced the earlier
2001 version, is the key legal instrument regarding parental rights and
responsibilities. The Act reinforces the Constitution's provisions regarding
the protection and rights of children, and it includes the following aspects:
Parental Responsibility (Sections 23–29 of the Children Act)
Parental responsibility refers to all the duties, rights,
powers, and authority that a parent has in relation to a child. This includes:
- Providing
the child with basic needs such as food, shelter, and education.
- Ensuring
proper guidance and upbringing of the child.
- Protecting
the child from harm, neglect, and exploitation.
Both parents, whether married, separated, or divorced, are
obligated to share parental responsibility.
Automatic Parental Responsibility
- For
married parents: Both the mother and father automatically acquire
parental responsibility from the moment of the child’s birth. Any
variation is at the discretion of the court and on a case to case basis.
- For
unmarried parents: The mother automatically acquires parental
responsibility at birth, while the father must either apply for it through
a court order or agree in writing with the mother to share it.
Termination of Parental Responsibility
Parental responsibility continues until the child reaches
the age of 18. However, the court may end parental responsibility earlier in
certain circumstances, such as if a parent is deemed unfit or if there is a
danger to the child’s welfare.
3. Custody, Access, and Maintenance of Children
In cases of separation or divorce, the courts in Kenya
determine custody, access, and maintenance based on the best interests of the
child, in accordance with the Children Act:
- Custody:
Courts can grant custody to either parent or both, depending on the
child’s welfare. The court will also consider the ability of each parent
to provide for the child's emotional and material needs.
- Access
(Visitation Rights): A parent who does not have custody is generally
granted access to the child. This is aimed at maintaining the child's
relationship with both parents.
- Maintenance:
Both parents are responsible for maintaining the child financially,
including providing for education, healthcare, and general well-being. The
court may order a parent to pay maintenance to the other for the child’s
care.
4. Adoption and Guardianship
In addition to biological parenthood, the law in Kenya
provides mechanisms for adoption and guardianship under the Children Act, which
allow individuals (including non-biological parents) to take legal
responsibility for a child. Adoption legally transfers parental rights and
responsibilities to the adoptive parent, while guardianship grants the right to
make decisions for a child without severing the legal ties between the child
and their biological parents.
5. Rights of Children Born Out of Wedlock
Under Kenyan law, children born out of wedlock have equal
rights to those born to married parents. Both parents are required to care for
and provide for their child regardless of their marital status. This ensures
that a father, for instance, cannot deny parental responsibility for a child
born outside marriage.
6. Protection Against Parental Abuse
The law also protects children from parental abuse and
neglect. In cases where a parent is abusive or unable to provide a safe
environment, the courts may intervene to remove the child from the parent’s
custody or even revoke their parental rights.
Kenyan law emphasizes the child’s best interests when determining parental rights and responsibilities. Both parents are equally responsible for the child's well-being, irrespective of their marital status. Parents must ensure the provision of basic needs, protection, education, and emotional support for their children.