Parental Responsibility over your Child
In Kenya, parents are entirely responsible for providing for their child's basic needs, such as food, shelter, clothing, medical care, education, and guidance. The Children's Act imposes the duty on parents to maintain their child. If one parent fails to provide for the child, the other parent, guardian, or custodian of the child may apply to the court to compel the other parent to pay maintenance for the child.
The court considers the financial ability of each
parent in giving an order and may require them to swear an affidavit of means to
show their income and expenses. Violating a maintenance order is considered a
contempt of court and can result in jail time.
If the child's parents are not living together and were not married to each other at the time of the child's birth, the mother has initial parental responsibility. The father may subsequently acquire parental responsibility either through a court order or by signing a Parental Responsibility Agreement.
If both parents have died, parental responsibility is transferred to a testamentary guardian appointed by the deceased parent or, if there is no testamentary guardian, to a guardian appointed by the court or a relative who is fit to take care of the child.
It is important to note that parental
responsibility does not depend on physical custody and a parent who does not
have physical custody still has parental responsibility over the child.
The repealed Children’s Act 2001, required that where a child’s father and mother were not married to each other at the time of the child’s birth and have subsequently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, the mother shall have parental responsibility.
However, the Children Act 2022 grants both parents equal parental responsibilities.
It further gives provides that, the separated parents should enter into a joint
parental agreement for the well-being of their child. If an agreement on
parental responsibility is arrived at, any party that breaches a joint parental
responsibility is liable to imprisonment for a term not exceeding one year or
to a fine not exceeding Sh500,000 or both.
Section
24 of the Children Act 2022. It reads: “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.”
What is parental Responsibility?
Parental Responsibility is the set of duties, rights, powers, responsibilities, and authorities that a parent has under the law in regards to their child and their property. These duties include providing for the child's basic needs, such as food, shelter, clothing, medical care, education, and guidance, as well as protecting the child from neglect, discrimination, and abuse.
Guardians may
also be granted Parental Responsibility by a will, agreement, or court order,
but they are not considered the child's parents.
The
Constitution of Kenya 2010 enshrines the rights of children and their
protection, including the right to parental care and protection:
Article
53(1)(b) of the Constitution provides for the right of every child to basic
nutrition, shelter, and health care services.
Article
53(1)(c) provides for the right of every child to education, including free and
compulsory basic education.
Article
53(1)(d) provides for the right of every child to be protected from abuse,
neglect, harmful cultural practices, and all other forms of violence.
Article
53(2) provides that a child’s best interests are of paramount importance in
every matter concerning the child.
These
provisions of the Constitution serve as the framework for the interpretation of
parental responsibilities in Kenya, and guide the interpretation and
implementation of legislation related to children and their rights.
The
new Children Act 2022, places equal responsibility on both parents and/or
guardians of the children according to Section 31 in Part III. This is a
positive development in the right direction as it recognizes the joint
responsibility of both parents towards their children.
To ensure parental responsibility, the act introduces a Legal Aid Fund in circumstances where equal parental responsibility is at issue. This is a significant improvement over the previous act which provided for legal representation of unrepresented children but did not specify where the expenses would come from.
The new act specifically directs the legal expenses to be
funded by the Legal Aid Fund, making the process more definite and clear.
Equal
parental responsibility has been a source of conflict, especially between
mothers and fathers after a divorce. With the introduction of the new act, both
parents have to share the responsibility of providing the basic needs for the
child, there has been a significant shift towards equal parental
responsibility.
Parental Responsibility: Understanding the Duties, Rights, Powers and Responsibilities
Every child is entitled to receive parental care and protection, according to the Kenyan Constitution. This means that both the mother and father have an equal responsibility to provide for the child, regardless of their marital status.
Parental responsibility refers to all the duties, rights, powers, and
responsibilities that a parent has towards their child and the child's
property, taking into account the changing needs of the child.
These duties include providing adequate diet, shelter, clothing, medical care, education, and guidance, as well as protecting the child from neglect, discrimination, and abuse.
It also includes the right to provide parental
guidance in religious, moral, social, cultural, and other values, determining
the child's name, appointing a guardian for the child, dealing with the child's
property for their benefit, arranging or restricting the child's emigration
from Kenya, and arranging for the child's burial or cremation if they pass
away.
Who Holds Parental Responsibility?
If the child's parents were married at the time of the child's birth, both parents have equal parental responsibility. If the child's parents were not married at the time of birth but later got married, both parents have equal parental responsibility.
If the child's parents were not married at the time of birth
and did not later get married, the mother has parental responsibility at first,
and the father acquires it through a court order or by signing a Parental
Responsibility Agreement. A Parental Responsibility Agreement can only be ended
by a court order.
In
the event of the death of one or both parents, parental responsibility is
transferred to the surviving parent or testamentary guardian. A testamentary
guardian is a person appointed by the deceased parent's will. If both parents
die and there is no testamentary guardian, parental responsibility can pass to
a guardian appointed by the court or a relative who is fit to take care of the
child.
Parental
responsibility can be extended beyond the 18th birthday if the court finds
sufficient reasons to warrant the extension. An application for extension can
be made by the parent, a relative of the child, a person with parental
responsibility for the child, the Director of Children’s Services, or the child
himself.
In
conclusion, while custody and parental responsibility are related, they are not
the same thing. A parent without physical custody still has parental
responsibility, while the person with physical custody has care and control of
the child. A custody order can also be revoked by the court if there are
compelling reasons.
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Source:PinterestUnder what circumstances a parent can be denied parental responsibilities over their child?
In
Kenya, parental responsibilities can be removed by a court under certain
circumstances. These circumstances may include situations where:
- A parent is found to be neglecting or abusing the child,
- A parent is unable to fulfill their responsibilities due to mental or physical incapacity,
- A parent is incarcerated,
- A parent voluntarily surrenders their responsibilities,
- A parent is found to be unfit to continue having parental responsibilities, or
- A parent has failed to comply with a court order regarding the child.
In
such circumstances, the court may appoint a guardian to take over the
responsibilities or the responsibilities may be given to another family member
or the government. It is important to note that the court will always act in
the best interests of the child and will take into consideration the child's physical,
emotional, and psychological well-being before making a decision on removing
parental responsibilities.
Can a parent be denied parental responsibilities over their own child?
One
parent can potentially be denied parental responsibilities on the basis of
separation, divorce, or lack of supporting the child. However, the specific
circumstances in which this can happen would have to be determined by a court
of law, taking into account the best interests of the child. The court may make
an order to transfer or restrict parental responsibilities if it is deemed
necessary for the welfare of the child.
What
happens to the responsibility for my children if I get a child and do not marry,
or after separation or divorce?
If a child's parents are not married to each other at the time of the child's birth and have not subsequently married each other, the mother has initial parental responsibility, and the father subsequently acquires parental responsibility either through a court order or by signing a Parental Responsibility Agreement.
In the event of separation or divorce, both parents
still have equal parental responsibility, unless there is a court order to the
contrary. However, a parent who does not have actual custody of the child still
has parental responsibility over the child. In the event of death of either
parent, parental responsibility is transferred to the surviving parent, or to a
testamentary guardian appointed by a will, or to a guardian appointed by the
court or a relative who is fit to take care of the child.
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