LEGAL HELP

Action for Children in Conflict has a program, the Kenya Children’s Legal Aid Work (KCLAW), that seeks to promote access to justice, strengthen the rule of law, promote human rights and significantly reduce all forms of violence in the society.

Parental Rights

Information about parental rights to get you started

Parental responsibility means means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child include the power to control a child’s education, the power to control the discipline of the child, the power to determine the child’s religion, the power to control any property belonging to the child until the child attains majority age, the right to be the child’s legal representative if a suit is brought against or on behalf of the child and the right to decide on the type of medical treatment to be given to the child including the right to consent to such medical treatment. According to the Children’s Act of 2001, in cases where an unwedded couple has a child and are no longer living together, the mother shall have parental responsibility from onset. However, the father can still acquire parental responsibility for the child. Futher, if you had a child while still single and later got married to each other, you will both be the child’s custodians.

Click through the topics listed below to find answers to your questions.

Meaning of custody care and control:

  • Custody with respect to a child, means so much of the parental rights and duties as relate to the possession of the child;
  • Care and Control means actual possession of a child, whether or not that possession is shared with one or more persons;
  • Legal custody means so much of the parental rights and duties in relation to possession of a child as are conferred upon a person by a custody order
  • Actual custody means the actual possession of a child, whether or not that possession is shared with one or more persons.

Who can be granted custody:

  • A Parent means the mother or father of a child and includes any person who is liable by law to maintain a child or is entitled to his custody;
  • A Guardian includes any person who in the opinion of the court has charge or control of the child;
  • 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 or
  • Any person who, while not falling within the above categories, can show cause, why an order should be made awarding that person custody of the child.
    • Aquisition of Parental responsibility
      • Where a child’s father and mother were married to 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 exercise of such parental responsibility.
      • 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. However the father can subsequently acquire parental responsibility for the child through a parental responsibilty agreement

A Parental Responsibility Agreement is an agreement made between the mother and the unmarried father to allow him to have Parental Responsibility. Both parents will have to agree to this. A parental responsibility agreement shall have effect if it is made substantially in the form prescribed by the Chief Justice.

    • If you need help with parental responsibility feel free to 

contact us

 

Child support (or child maintenance) is financial support paid by one parent to parent or, caregiver or, guardian, or state, for the financial benefit of a child and help with the costs of a child.

The law says that both parents have a duty to support their children financially, whether they are biological (birth) or adoptive parents.

  • Who is responsible for child support:
    • Where the parents of a child are married to each other and are both living, the duty to maintain a child shall be their joint responsibility.
    • Where the mother and father of a child were not married to each other and 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.
    • Guardians/custodians/foster parents of the child have been appointed, the duty to maintain the child shall be their joint responsibility. Whether acting in conjunction with the parents of the child or not.
    • A father a of child born out of wedlock and has not acquired parental responsibility may be ordered by the court, following some consideration, tho give financial provisions.
    • A step-parent may be orderd by the court, following some cosideration, to give financial provisions.
  • Who can apply for child maintainance:
    • Any parent, guardian or custodian, of the child.
    • A child who has attained the age of eighteen years may, with the leave of the court, apply to the court for a maintenance order to be made in his favour with regards to circumstances such as education, disabilities, ailment or anyother special circumstance.
  • How child maintainance is paid:

    The court may order the person against whom a maintenance order is made to make a financial provision for the child by:

    • periodical payments, or
    • a lump sum payment as the court shall deem fit, to the person in whose favour the order is made or to any other person appointed by the Court.
  •  

Where parents have failed in taking parental responsibility for their children, the best interests of the children are looked into by the law when determining who will take custody of the children:

  • Children’s act section 4 provides for survival and best interests of the child; Every child shall have an inherent right to life and it shall be the responsibility of the government and the family to ensure the survival and development of the child.
  • Section 120 (12) further provides that when it appears to an appointed local authority or a charitable children’s institution that a child in its area is in need of care and protection and that its intervention is necessary, the local authority or charitable children’s institution shall receive such child into its care and need not bring him before a court immediately provided that—

    (f) the local authority, or charitable children’s institution shall, when it appears to be in the interests of the child, endeavour to secure 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.

If you are a parent or carer you don’t have to be represented by a lawyer. However, preparing and presenting your own case can be complicated, especially if the court is being asked to remove your child from your care. You can get help. Parents and children (who are mature enough) have separate lawyers. A lawyer can give you advice about your choices, and speak for you. What you tell your lawyer is confidential.

Before the hearing date, contact the court to see what time you need to be there. It’s best to get there about half an hour before the court sessions start. Usually the first court hearing starts at 8am. If you need an interpreter contact the Children’s Court you are attending to let them know before your court date. The court will pay for the interpreter. Only qualified interpreters can work at court.

At court The registrar sorts out the order of the hearings on the day. Your case may not be heard straight away. Plan to be there for the whole day. Do not go too far away. You need to be able to hear your name/case number being called when the court is ready for you.

Going into the courtroom when your name is called. The court will wait until everyone has entered, and will then ask what stage your case is up to. The National council for children services/whoever has brought the case to court lawyer will briefly explain what the department is asking for and tell the court if the case can go ahead. The court may give everyone time to talk, or may set aside time to listen to each side before making a decision. If you have a lawyer, your lawyer will speak for you. Sometimes you may go into and out of court several times on one day. You may have to come back on another day, as courts often do not make a final decision on the first day you go to court.

court’s decision The court can make different court orders, depending on the case and what stage it is at.

 

  • If the case is not decided If the case has only just started, or there is no agreement about what should happen, the court may:
    • make a temporary order requiring you and your family to cooperate with the investigation, called a temporary assessment order
    • put the case off, for another hearing date make a temporary order about the care of the child, called an interim care order
    • Make a child assessment order requiring a child to be investigated or evaluated by a person appointed by the court to assist the court in determining any matter concerning the welfare and upbringing of the child
    • wardship order requiring that a child be placed under the protection and custody of the court;
    • production order requiring any person who is harbouring, concealing or otherwise unlawfully detaining a child, or who intends to remove a child from Kenya or from the local limits of the jurisdiction of the court, to disclose any information regarding the whereabouts of the child and/or to produce the child before the court and/or restraining the person from removing the child from the jurisdiction of the court for such period as the court may specify.
  • If the court decides that there is enough information to make a final decision, they may:
      • dismiss the case
      • make final orders about the maintainance of children, including:
        • an undertaking (a legally binding promise made to the court to something or not to do something)
        • access order, which shall require the person with whom the child is residing to allow the child to visit, or to stay periodically with the person named in the order, or to allow such person to have such other contact with the child as may be directed by the court
        • residence order, which shall require a child to reside with a person named in the order and/or determine the arrangements to be made to facilitate the residence of the child with the person named in the order
        • exclusion order requiring a person who has used violence or threatened to use violence against a child, whether or not that person permanently resides with the child, to depart from the home in which the child is residing or to restrain the person from entering the home or a specified part of the home or from a specified area in which the home is included, or to restrain any other person from taking the child to the person against whom the child needs protection for such period as the court may specify
        • family assistance order requiring a person appointed by the court to provide such advice, counselling and guidance to a child, his parents or custodian or guardians, the child’s relatives, or any person who has care and control of the child or with whom the child is residing, as the court may specify
        • Maintainance order

    For more information about the see the following

    Children’s Act of 2018

 

 

Glossary

Interim care order: a temporary order made by the Court which means that the state will share parental responsibility for your child with you.

Child assessment order: It requires any person who is able to produce the child to allow the local authority to remove the child from the family home for the purposes of an assessment.

Wardship order: an order made by a court that a child or young person should be under the protection of the court because the parents are unable or unfit to look after that child

Production order: requires the custodian of the child to deliver or make the child available to the court

Access order: a court order allowing a parent to see a child if the child is the care of someone else, often the other parent following a divorce

Residence order: an official declaration by a court or an authority saying where a child must live

Exclusion order: an order which removes the person presenting the danger from the child’s home. This may be appropriate in cases such as domestic abuse where the perpetrator does not voluntarily leave the home.

Family assistance order: a court order issued directing the children officer officer, or an officer of a local authority to advise, assist, and befriend a particular child or a person closely connected with the child.

 DISCLAIMER this  is meant to be for information resource only. None of the material on this site is expressly or impliedly meant to provide legal advice to you. Since the material on this site is provided as information only, and laws continuously change from time to time, the author of this website neither expressly nor impliedly warrants that any of the material provided on this website is accurate. If you are in need of a solution to a legal problem, the author advises that you should contact a advocate for legal advice.feel free to contact us for more help.

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