Children and The Law Notes
Children and The Law Notes
i. Pro-life approach
ii. Pro-choice
iii. Pro-child
Pro-life approach
Proponents advocate for the respect of human life from conception. This approach does not
advocate for abortion. Fetus is treated as a human being from the moment of conception. This
approach argues that conception is the beginning of life and that there should be sanctions for
Pro-choice approach
Its proponents argue that whether the child should be born should be the discretion of the mother.
They advocate for the ---approach that since the law allows for consent in all relationships--- a
mother ---should be able to withdraw her consent from her relationship with the foetus and be
allowed to terminate it. They argue that outlawing abortion subjects the mother to become a
victim of human rights violation. A person has a right to ---regulate her reproductive health and
the law has no business of moving from the courtroom to the bedroom.
reproductive health care through family planning, that is, use of contraceptives. This is meant to
prevent a situation where a child is born in an unhealthy ---environment which in some instances
is below human standards, for example, street families. This approach is good as it encourages a
Kenyan law
The Kenyan law seems to adopt a pro-life approach. The Penal Code, CAP 63, expressly
provides for criminal sanctions that prohibits interference of the pregnancy under sections
158,159 and 160. This statute protects the foetus and treats it as a person. This prohibition
reflects the society’s view. The Constitution1[1] also provides for a pro-life approach under
Article 26 (1) which provides that life commences at conception. However, this ---is qualified
under article 26(2) (3) & (4) where ---abortion is allowed if in the opinion of a trained ---health
professional there is need for emergency medical treatment or the life of the mother is in danger.
In the case of R v John Nyamu & 2 others 2005 eKLR, Dr. Nyamu a gynecologist and 2 others
were charged with murder contrary to section 203 and 204 of the penal code. The issue for
determination was whether they were guilty----or not. In her---assessment Judge Rawal held that
there was no evidence to prove murder. In paragraph 20 she noted “am of the ---opinion for a
child ---to become a –person the most important ingredient is when it has completely proceeded
in a living state from the body of its mother, without that, the foetus was not a person capable of
being killed.”
In the case of Paton v British pregnancy advisory service trustee (1978) AER Paton wrote an
application to stop BPAST and his estranged wife whom they had separated from procuring an
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abortion. The wife was 1 month pregnant and had contacted BPAST for abortion facilities---
The case was dismissed and the court held that under British law (common law), there can be no
fatherhood, personhood or childhood unless there is a life birth. The court noted further that -----
the unborn child had no legal recognition---and therefore there was no basis for stopping
BPAST.
Paton appealed to the European commission on Human Rights. The commission dismissed the
case noting that the state--- of unborn child was not addressed----and that there was no regional
consensus on how to regard personhood or childhood. However, the commission noted that the
national law was not consistent with the European convention on Human rights.
In the case of Re F (Inutero) 1988 2WLR 1288 similarly the local authorities alerted the court
that a woman who was in her final month of pregnancy was mentally unstable and had suicidal
tendencies. She had an only child whom she abused frequently and had been ---taken under
custody. The appeal laid by local –authority to the high court was to take the ---lady to custody
to protect the unborn child. The court cited the Paton’s case and held that ---holding was that a
The court had no jurisdiction to protect the unborn child no matter how advanced the pregnancy
was.
been trying to have a child without success. Mrs. Evans had a problem with her reproductive
health and had been unable to conceive. She was diagnosed with cancer. She and Evans arranged
to extract some ova from her which were then fertilized by Evans at Amicus Healthcare clinic. A
number of embryos were created and some preserved for future surrogate for other clients.
Unfortunately Evans divorced/separated and Mr. Evans instructed the clinic to destroy the
Embryos. Mrs. Evans didn’t want them to be destroyed as she wanted another child in future.
She went to court to seek an injunction stopping the clinic from destroying them. The European
commission on Human rights dismissed the case relying on Human fertilization and embryology
rights act. The court noted that one cannot proceed with forcing parents to having a child if either
LECTURE 2
The purpose of international protection is to codify, legalize universal moral claims of children’s
right. Children’s rights can be said to be derived from moral claims because children are a
vulnerable group and cannot assert their own rights. Under the domestic obligations, the
international community requires governments to ensure certain domestic standards are met to
protect and guarantee children’s rights. States also have extra-territorial obligations (diagonal
obligations). States should not stop at neo-domestic obligations which focus on an inward look
Earlier legal statements are conspicuously silent on children’s rights, however, the 10
commandments are said to be most influential of all legal codes as they contain a clear normative
This was the first international declaration and is limited in scope. In its pre amble it states that
mankind owes to the child the best it has to give. In its five principles it emphasizes on welfare,
the requisite means for normal development, food and medicine, help for the “backward” rehab
for the delinquent, relief in times of distress, to be put in a position to earn livelihood and
It had provisions which were better tailored to children specifically Article 25(2) which states
that “motherhood and childhood are to be entitled to special care and assistance and children
Further in article 26, the instrument provides that everyone is to have the right to education. This
Under this convention there were specific references to the children in Articles 5(1) (d) and 6
which provided for Right to education. Article 8 provides for child’s best interests
It was proclaimed in 1959. It was similarly worded to Geneva Convention adopted 35 years
earlier. Both declarations emphasized on child protection- protecting the child rather than the
child’s rights. It has more modern---- e.g. a non-discrimination principle (principle 1). Principle
5 is about recognition of the special needs of a child. Particularly significant is that this
declaration is the first international human rights instrument to refer specifically to the best
protection and assistance and protection from social and economic exploitation. There is an
emphasis on education of the child directed to the poor development of the human personality
and the sense of its dignity. State parties are called upon to recognize that primary education is to
be compulsory and free, secondary education generally available and higher education equally
It provides that every child is to be protected from non-discrimination. The death sentence is not
to be imposed on crimes committed by persons below 18 years. Under Article 24, every child is
entitled to be registered and to have a name and the right to acquire a nationality. Article 24 is
the only specific article on children as all the other articles provide for all classes of persons.
The presumption that underpins this convention is that a ---pompt return of an abducted child to
the country of their habitual residence is always in that child’s best interests. The duty to return
the child is not absolute. A judge or judicial officer can avoid return if there is a great risk that
return of the child would lead to physical or psychological harm or otherwise place the child in
It is of lesser profile and significance. Most of its provisions are found in the Hague
convention---.
9. The convention on the rights of a child of 1989
This is the major global instrument on children’s rights. It has been ratified by all statutes except
the USA. The CRC follows a holistic approach to children’s rights recognizing that the rights
anchored in the convention are ----ind and interrelated and an equal importance must be attached
to every right contained therein. However, since the rights derived from basic principles are
v. Family environment
viii. Welfare
This was preceded by the African declaration on the rights and welfare of the child in 1979. The
1979 document was an inspirational, emphasized on equal status of the female and male
children, it referred to child marriage and female circumcision and urged members states to ratify
the ILO convention on minimum age of employment. It urged particular attention to be paid to
the needs of refugee and disputed children. African charter adopted most of its provisions.
African charter on the rights and welfare of the child is said to be the most forward-thinking of
all the regional conventions. It is the most progressive treaties on the rights of the child. The
most significant innovation empowers the monitoring committee under its article 44 to receive
communications from any person or group or NGOs recognized 2[2] by the organization of
African union. Children can petition the committee on alleged violation of their rights including
Note: the ACRWC is wider and care than the CRC. There is a specific article condemning
LECTURE 3
in a civil society that ensures that the government discharges their obligation under international
ii. International protection on the rights of a child prevents sources of ideas for forming
institutions, for example female genital mutilation has been outlawed in many countries to
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iii. It helps to develop children’s jurisprudence of children rights at the international level. In open
iv. International instruments …for example through reporting a state that is crippling with child
labor may borrow from the practices in Columbia. Reporting also enables the international
communities understand problems facing the reporting community of the reporting states so that
international community can contribute in solving some of the problems. Depending on the
problems, World Bank or the UNDP may chip in to provide funding to solve these problems.
Under the UN human rights protection and …each of the core human rights instruments has a
treaty monitoring body. Traditionally, treaty bodies are independent bodies of experts who are
elected from amongst nationals of the state parties to the respective internationals human rights
treaties. The experts work for the treaty bodies usually referred to as the committees and they do
so on a contrary and voluntary basis. Their main role is part of examining state reports. The
reports are a sort of comprehensive national reports involving a wide range of states and non-
state actors such as parliament, national human rights institutions and the civil society. However,
in most cases, many states prepare the reports behind closed doors involving only government
officials. This has resulted in many reports to lack a comprehensive, critical and objective human
rights assessment which is the real objective of every state reporting procedure under the UN
human rights system as well as under the human rights regional system. Under the arrangement
of the reporting, the duty of the treaty monitoring body is to critically examine the state report in
public sessions and to issue concluding observations and recommendations. The reports are
published in their annual issues. After the concluding observations and recommendations are
issued, governments are expected to pay heed/attention to these recommendations and give an
account of their state of the implementation of the following report. NGOs play a crucial
In the case of the CRC it is monitored by a committee which is established under Article 43(1).
The committee is comprised of a ...of experts of high moral standing and recognize competence
in the field covered by the convention. These experts are elected by state parties from among
their nationals who served in their personal capacities. The committee meets in Geneva,
Switzerland, thrice per annum for a period of three weeks for each session. Under Article 44 of
the CRC, state parties are obliged to submit to the committee through the secretary general of the
United Nations reports on the measures they have adopted which give effect to the rights
a. Within two years of entry into force of the convention for the state party concerned
Like the CRC, the ACRWC implementation is monitored by a specialized treaty body. The
African Committee of experts on the rights and welfare of the child which was established in
2001. The African committee of experts has a more extensive mandate than the UN committee
on the rights of the child. Apart from receiving and commenting on the state reports, the African
committee of experts has the mandate to receive and consider individual communications and
conduct ad hoc missions and on such visits of states considered to be violating the treaty
obligations.
The African committee of experts has been cited as progressive in the case of Institute for
Human rights and Development in Africa (IHRDA) and open society justice initiative
society(NY) (on behalf of children of Nubian background in Kenya)…that was brought on …of
Nubian descent before the African committee of experts. Nubians were recruited to be used by
the government during the colonial era …resources. The government settled them in Kibera in
Nairobi and these children were never issued with IDs because they were from Sudan which was
perceived to be an enemy of Kenya. The Nubians filed a suit in high court that was never …
they proceeded to the African committee of experts claiming their rights had been violated and
specifically article 6(3) of the African charter which provides that every child has the rights to
acquire nationally…the committee made an inquiry in 2011. The committee found that denying
Nubian children access to national identification cards amounted to making them stateless which
was against the best interest of the child. They also found that the vetting system put in place to
determine who got access to citizen ship “unlawfully discriminated”…leaving them stateless
which was in breach of article 3 of the African charter. Further the committee held that lack of
citizenship rights also denied Nubians access to adequate healthcare and education in breach of
article 14 and 11 of the African charter which commits Kenya to provide the highest attainable
The committee then sent a series of recommendations to the Kenyan government in order to
form legislative and administrative practices while also making great steps to create an un-
I. Insufficient resource mobilization. In most domestic institution of children issues, you find
that the resources are present but are not mobilized for social economic rights. A class example
is the availability of oil in Turkana yet children in this particular part of the country continue to
starve and are denied their rights. Another example is on the issue of food security in Egypt
which has a larger population than Kenya and yet she has mobilized her natural resources to
II. Misallocation and misuse of resources. This has led to chronic and sustainable
underdevelopment. A good example is the failure to employ early childhood teachers’ obligation
in public schools by the government. This has contributed to poor performance of children in
public schools.
III. It helps ...corrupt political leadership. Badly governed statehood compromises realization of
children’s rights. Most states especially in Africa have manipulative statehood governance where
they get people to be vulnerable or economic sabotage so that they can vote for them.
IV. Inappropriate child rights advocacy. These are NGOs selected to advocate child rights but
instead use child rights infringement for personal gain. For example, the setting up of orphanages
for the purpose of these orphans. Upon getting donor funding, persons in charge use 95% for
themselves and their families and 5% for the orphans. At some point, especially in the late 90s
V. High levels of illiteracy, especially female illiteracy. Children dropping out of school, early
pregnancies, failure to be exposed to family planning practices adversely affects the realization
of children rights. There is lack of support programs of girl-child education especially in rural
areas.
VI. Inappropriate International Financial Institution (IFI) policies. The World Bank and IMF
impose certain policies on borrowing countries. Policies such as cost sharing exclude many states
VII. Political instability and armed conflicts. Collapse of states such as Somalia because of
unending conflicts, Kenya’s 2007 post-election violence, Egypt, ivory coast, Liberia, south
Sudan, etc. affects institutions of governance that are required to guarantee rights. States need
advanced and stable economic social infrastructure to provide the basis for accessing children’s
rights.
The child law reform process in Kenya was kick-started by the executive upon public calls for
such reforms towards the end of 1980s. The AG initiated the child law reform process through
the traditional approach, that is, by directing the Kenya Law Reform Commission (KLRC) to
review the existing laws concerning the welfare of children and to make recommendations for
Acting on his directive the KLRC established a 13 member task force to undertake the process.
The task force was comprised of government officers, children rights advocates, academics,
experts who reflected an inter-disciplinary approach. It commenced its mandates in March 1991.
The taskforce collected information from public administrators and the general public through
public meetings during provincial meetings; it also obtained views of experts and practitioners
from outside Kenya. The taskforce also conducted a comparative study by undertaking a visit to
Egypt in order to enlighten itself in the interaction between Islamic law and children’s rights on a
number of issues including adoption and affiliation. The taskforce also collected views from the
children which were done through a school essay competition. This competition was conducted
to obtain opinion of children specifically regarding their rights duties and welfare. The emerging
crucial issues from these essays were synthesized and incorporated in the report. The taskforce’s
final report was very comprehensive and in May 1994 it submitted its report to the government
and recommended for the re-enactment of a children’s Act. The Kenya Children’s Act repealed
two pieces of legislation, the Children and Young Person’s Act, the Adoption Act and the
The CA consolidates the previous law dealing with childcare, maintenance , guardianship,
juvenile justice and overall, it seeks to domesticate the provision of the CRC and the ACRWC.
Some of the key definitions include a “child” as any human below the age of 18 yrs. There is
also the “child abuse” to include physical, psychological and mental torture. “Parent” is defined
as mother and father of the child or any person who is liable by law to maintain a child or is
“Early Marriage” is defined as marriage of cohabitation with a child or any arrangement made
for such marriage or cohabitation. “Female Circumcision” is the cutting and removal of parts or
The Children’s Act provides for the right all of children which can be classified into two groups
as follows
i. Welfare rights
c. The right to be protected from harmful cultural activities such as FGM and early marriage
These rights are to be practiced with the following two key principles:
i. The best interest principle set out under section 4 read together art 53(2) of the constitution
that provides that “in all actions concerning children, whether undertaken by public or private
institution, courts of law, administrative authorities or legislative bodies, the best interest of
ii. Non-discrimination principle covered by section 5 that is to the effect that no child shall be
subjected to discrimination and grant of origin, sex, religion, custom, opinion, conscience, social
On the enforcement of children’s rights is under section 22 which provides that any person who
alleges that the rights of a child have been or are likely to be contravened may apply to the high
Q: Who has the locus standi to appear before the high court on behalf of the child?
ii. Respect his parents, superiors and elders at all times and assist them in case of need
v. Preserve and strengthen positive cultural values of his community in his relations
It refers to the rights, powers and authority which by law a parent of a child has in relation to the
child property in a manner consistent with the evolving of a child. The duties include:
i. Maintenance of the child and provision of adequate diet, shelter, clothing and medical care
Under article 53(e) of the constitution, every child has the right to parental care and protection
which includes equal responsibility of the mother and the father to provide for the child, whether
Three types:
The purpose of the council is to exercise general supervision and control over planning for …of
child rights and nationwide activities and to advise the government of all aspects of child rights
and welfare. It’s composed of the government, NGOs that are engaged in child welfare, religious
bodies, private sector, AGs office, police commission and director of children services.
It is responsible for guarding the welfare of children and assisting in establishment, promotion,
The local authorities have the responsibility of developing welfare schemes for children that
further the interests of children. The local authorities safeguards and promote the rights and
i. Rehabilitation schools
The former approved schools are now what we call rehabilitation schools. They are established b
y the government for the reception, maintenance, training and rehabilitation of children ordered
These are institutions established by the government to receive children normally under the age
of 14 whose cases are still ongoing in court. Former juvenile remand homes are now children’s
remand homes
These are institutions that are established by religious bodies, private persons and NGOs in
general to undertake programs to protect rehabilitate, care or control children. Approval has to be
granted by the national council for children services to grant these programs. The NGO must first
i. Civil cases
These are cases concerning parental responsibility, custody and maintenance, guardianship,
Courts also hear cases from children who are in conflict with the law or child offenders except
where the child is charged with murder is jointly charged with the adult(s).
Court also hears cases people who have been cruel or neglectful of their children and any other
Offences under the act. Children’s courts are presided over by children’s magistrate specifically
Restrictions
Only court officials, people involved in cases, genuine members of the press, parents and
guardians of the child are allowed to sit in children’s court while a matter is ongoing. Other
people have to see permission of the magistrates if they have to sit in court. In reporting the cases
involving children in the media or in any other report, their names, schools, homes or last places
of residence should not be published or any other information that will lead to identification of a
child.
i. The parent
iii. Any other person who applies to the court for custody but has had actual custody for three
iii. The wishes of parent, guardians, foster parents or any other persons who have custody of child
When it comes to maintenance, it refers to the supply of the necessaries of life for a person. For
children this refers to adequate diet, shelter, health and medical services and education
The court may order a parent to provide for child upkeep but will take into consideration
A guardian is a person appointed to take care of a child alone or the child’s property after the
appointment of a guardian.
iii. Through court order upon the application by any person to the court if the child is an orphan or
his parents cannot be found or where the child is in need of care and protection. The surviving
parent may act together in appointing the guardian of the child. If the guardian does not wish to
take responsibility or the surviving parent does not wish to act jointly with the appointed
guardian they may refer the matter to the children’s court for solution.
These are the orders that the court can grant for the protection of children and ensure that their
welfare is enhanced.
a) The child
e) An authorized officer
What kind of orders can the court issue in bid to protect the welfare of the child?
Judicial protection
a. Access order – allows a person to visit a child residing with another person
b. Residence order – requires a person named in the order to reside with the child.
c. Exclusion order – requires a person who has been violent to a child or has threatened to use
by the court
e. Family assistance order – this requires a person named by the court to assist the family with
g. Production order – in the context of children’s issues requires a person to produce a child he/she
is illegally keeping.
(v) of female gender but subjected or exposed to harmful cultural practices, like FGM and early
marriages
(viii) terminally ill or whose parents are terminally ill or has a disability
an authorized officer including among others to a police station or a local administration and the
child should be taken to a place of safety. Where a child is brought before a court as one in need
of care and protection, the court must give the parents or guardian a chance to explain their case.
The court then makes certain orders according to the best interest of the child.
(i) The court can compel the parents to sign a written agreement that they will take good care of
the children.
(iii) Commit the child to a drug rehabilitation center of the child is addicted to drug abuse
(iv) Nullify the marriage of a child and place the child with a person who is fit
(v) Place the child under the supervision of children’s’ officer while still at home
(vi) Place the child under care of another other than the parents under the care order.
It is an offence for any person to willfully assault, abandon or knowingly cause a child to be in
need of care and protection. A penalty for this offence is a fine not exceeding 200,000 shillings
It means the placement of a child with a person who is not the child’s parents, relative or
guardian and who is willing to undertake the care and maintenance of that child.
A child can be taken to a foster placement by the director of children services and the manager of
a charitable institution or rehabilitation school where the child has been placed through a care
order.
(ii) A single woman aged above 25 yrs. but cannot foster a male child
(iii) A single man aged above 25 yrs. but cannot foster a female child
Adoption gives parental rights and duties relating to a child to the adopter or the person who the
adoption order has been granted. The act established the adoption committee to oversee adoption
issues.
(ii) A child must have been declared fit for adoption by a registered adoption society
(iii) The child must be a resident in Kenya and has been in the continues care and control of the
applicant for a period of three months before the filing of the application and a registered
(i) A sole applicant or jointly, two spouses …where each one of them is:
The following cannot adopt a child unless there are special circumstances for adoption order to
be made:
iii. A homosexual
Consent before any adoption is effected. There are two types of consent that must be taken out
(i) The consent of parents, guardians or any person having parental responsibility or for people not
(ii) The consent of a child who has attained the age of 14 yrs.
Consent of parent can be done away with in the case where they have abandoned or neglected
The parent can appoint a guardian ad litem, to safeguard the interest of the child among other
things to
the child.
When it comes to international adoptions under s. 162, can be conducted in respect of a child
upon the application of two spouses who are not Kenyans and who are not in Kenya provided
An adoption order once granted has the effect of transferring all rights, duties and responsibilities
off a child to the adopter as if the child was born to the adopter inside a lawful marriage. The
adoption order extinguishes the rights, duties and responsibilities that a parent or guardian or any
These are those who are in conflict with the law. These are children who are suspects in a
criminal case or have been convicted for having committed a criminal offence. A children court
will hear cases of children offenders’ part from those charged with murder and those charged
What rights do those children accused of having infringed the law have?
(viii) If they are disabled to be given special care and treatment in a manner that enhances their
dignity
(ii) The children court shall have a setting friendly to the child offender
(iii) The words conviction and sentence shall not be used in relation to a child, instead the term “a
finding of guilt” and “ an order upon finding of guilt” shall be used respectively
There are various orders that the court can issues with respect to child offenders. The court may:
(iii) Place the child under a fit person who may be a relative or a charitable children institution
Restrictions on punishments
Remand in custody shall not exceed 6 months for an offence punishable by death and if the case
is not finalized within a year the case will be dismissed. 3 months in the case of any other
offence and if the matter is not completed within 3 months after the child has taken plea, the
Lecture
June 2016
guardianship and custody of the child. In a number of cases, the Kenyans courts have insisted on
Article 53(2) of the constitution provides for the ‘best interest’ principle as read together section
45(2) of the act. The convention on the rights of the child committee CROC has urged the
Kenyan government to ensure that the principle of best interest is taken into accounting all
programs policies and decisions that concern children and especially vulnerable children by
In its consolidated 3rd, 4th and 5th report to the CROC, the government of Kenya reported to have
taken follow-up actions reports in compliance with the recommendations of the CROC. The
Kenyan government reported that it has enshrined this principle to the constitution and further
that there were numerous capacity building sessions for professionals-working children at
various levels.
Article 4(1) of the African charter on the Rights and Welfare of a Child (ACRWC) and article 3
of the CRC guarantee the child’s best interests. Under both treaties, state parties are obliged to
administrative measures.
In general, while assessing a child’s best interest the courts will look at:
(ix) Each parent’s willingness to allow the child to have a meaningful relationship with the other
parent.
(xi) If the child is of sufficient age and maturity, the child’s preference
In the Kenyans courts the best interest principle has been interpreted in the case of F.M v H.G
civil case no. xxx 2012 eKLR ,this was an appeal case that involved a man and a woman who
were married in 2003 under the Meru customary law, they cohabited together as husband and
wife till 2005. Their marriage was blessed with one child I.M. they then fell out in 2007 and at
the time of filing for a divorce case in 2007, I.M was 4 and half yrs. Prior to the filing of the
divorce case, the respondent/wife and the child had been chased from the matrimonial home by
the appellant/husband in 2005. As the case was ongoing, the appellant/husband took the child
from the wife/respondent claiming that he was going out of the country and that he wanted to
take the child for insurance purposes and would return the child back to the respondent but he
failed to return the child as promised. The respondent/wife filed an application to the court
The court made reference to section 4(3) of the children as read with s. 83 which includes…as to
custody order should always be made in the best interest of the child. The court further noted that
where a custody of a child of tender years. The mother should have the custody unless special
The court noted that there was no record showing exceptional circumstances to justify depriving
the mother of her natural rights to have her child with her. The court granted joint custody to
both the appellant and the respondent and directed that the parties would exercise equal
responsibilities of the child which would include providing maintenance, education, medical
Appellant was ordered to surrender custody of I.M to the respondent mother under the
supervision of the O.C.S Chuka police station and the district children’s officer. Finally the
parties were ordered to structure their visitation rights that would enable the appellant to access
I.M.
Similarly in the case of L.K. (LLMM Baby) v H.M.K 2013, eKLR this was an appeal case. The
appellant/ sought orders for actual custody of the minor child named MMM aged 4 yrs. to be
granted to her. There was no dispute that the issues was a biological to both. In June 2012, the
law court delivered judgment in the children’s court in Meru vesting the custody of the minor
child to the applicant/mother and the respondent was ordered to provide for the child upkeep and
maintenance but he refused to comply. The applicant/mother averred as a result she was forced
to leave the child with her mother to go and look for a job in Nairobi but she would come back
every two weeks to check on the child. She further wrote to the …court that she used to send
upkeep to her mother through m-pesa and that she had found a job as a salonist and she was
earning 20,000 per month and was in the process of moving to Nairobi as soon as she found
affordable accommodation. She further noted that she had enrolled the child in school, was
paying school fees alone without any help from the respondent. On 5 th December 2012, the
respondent sought custody of the child. The court allowed the application and vested the minor
child in the custody of the respondent. The applicant was dissatisfied by this order and thus
The respondent averred that the respondent had hidden the child to deny him access and further
averred that he further supported the child though there was no evidence. In making its final
decision the court relied in the case of Karanu v Karanu 1975 EA where the court of appeal
stated “the substantial question in this appeal is not whether the judge was right in giving custody
of the children to the father. At the time the application was heard, the daughter of the parties
was 7 yrs. of age as the son was 6yrs. The judge correctly directed himself that in cases of this
nature, the paramount consideration is the welfare and the best interest of the children. And in
the absence of exceptional circumstances, the custody of young children should be given to the
mother.
In the instant case(of L.K ) the court noted that no evidence had been tendered to show that there
physical custody, care and control of LMM. The court noted that the respondent had never been
Under common law, unless otherwise proved, children are entitled to parental care. Both parents
have a duty to support their children and children have a reciprocal duty to support their parents.
The duty to support children by parents accrues whether the children are born of parents who are
married or not. The famous UK Gillick case 3[3] involved a health departmental circular advising
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doctors on the contraception of minors for this purpose below 16 yrs. The circular stated that the
prescription of contraception was a matter for the doctor’s discretion and they could be
prescribed to children less than 16yrs. without parental consent. The mother was litigated
because an activist, Mrs. Victoria Gillik, ran an acting campaign against …Mrs. Gillik sought a
declaration that prescribing contraception was illegal because the doctor would commit an
offense of encouraging sex with a minor, and that it would be treatment without consent and yet
consent vested in the parent. The issue before the house of lords was whether a minor could give
consent. The House of Lords focused on the issue of consent rather than a notion of parental
rights or parental powers. In fact the court held that parental rights did not exist other than to
safeguard the best interest of a minor. The majority held that in some circumstances a minor
could consent to treatment and that in this circumstance a parent had no power to veto treatment.
This case lays down that the authority of parents to make decisions for their minor children is not
In international law the primary duty to take care and maintain a child is imposed of their
parents. The legal position of parents to take care of their children is derived from the
presumption that they are in the best position to secure the rights of a child. In international law
there are two aspects relating to the role of parents in raising their children:
(i) The first aspect entails a functional role which provides that a child is to be nourished,
(ii) The second role of parents is the cultural symbolic role. This role ensures that the child is
imparted with a sense of belonging. The significance of child rights to the care and company of
their parents is expressed in international human rights treaties. Specifically this right is
recognized in Art. 18 of the CRC, Art. 19 of the American convention on Human Rights which
implies the right of a child to be part of a family. While the CRC imposes obligations on parents
in the context if “child custodian” the ACRWC extends parental responsibility to other people in
charge of the child. This is in appreciation concept of extended family in the applicant
concept/African. Art 19 of the CRC provides that both parents have equal responsibilities for the
Article 6 (1) of the African Women Protocol 4[4] requires state parties to enact legislation which
ensures that a woman and a man shall strictly contribute to safeguarding the interest of the family
LECTURE
S. 23.24 & 25
The duties are provided for in article 53(e) of the constitution and part III of the (s.23 & 28 ) of
the Children Act. Section 23 defines parental responsibility to mean all the duties, rights, powers
responsibilities and authority which by law a parent of a child pass in relation to the child and the
child’s property in a manner consistent with the child’s evolving capacity. As the court held in
R.M v A.G 2006 eKLR, s.23 of the Children’s Act sets out the actual responsibility of parents
towards their children. Article 53 (e) of the constitution affirms that the primary duty to care and
maintain a child is vested in the child’s parents, guardians or relatives who are in charge of a
child and both have equal responsibility whether married to each other or not.
4
Pre-2010 constitution had no support accrued for illegitimate children. The only remedy was in
customary law which was a weak mechanism as it relied on the concept of ‘pregnancy
compensation mechanism’.
When you look at s. 24 and 25 it sort to distinguish families in a marriage institution, it is sort of
discriminative on children born out of wedlock as was established by the case of rose moraa.
Sections 24(3) and 25 have since been held to be discriminatory of illegitimate children as this
was cured by article 53(e) of the constitution. These sections were contested in the Rose Moraa
case unsuccessfully. The facts in the R.M case were that Rose Moraa was born on the 16 th
September 2000 through a relationship of the mother and another man. The father worked with a
local company as a mechanic. At the time of the birth of the baby, the mother was cohabiting
with the man who duly paid for the hospital expenses at the hospital where R.M was born. In
January 2001 the father disappeared and avoided the mother until April 2001. In September 2000
the mother saw the man when he came to the matrimonial home, named the child after his
mother, shaved her head after one week as per the Kisii customary law. The father failed to give
parental support thereafter to the child and the mother depended on good Samaritan for upkeep.
She filed a constitutional petition arguing that Section 24(b) of the children’s Act was
discriminatory as it gave her child at a disadvantaged position vis-a-vis other children who’s
father had married or had subsequently married their mothers. The court dismissed the
application and refused to declare it unconstitutional on the reasoning that “as crafted the
children’s right is a milestone in entrenching and securing the rights of a child and Section 24(3)
is in our view a big improvement of the uncoordinated laws which dealt with parental
responsibility before its enactment. Scrapping it from our laws would go against the object of the
Act and the state responsibility to endeavor to create laws and at securing the best interest of the
child.”
This section has since been declared unconstitutional by Justice Mumbi Ngugi in the Zack v A.G
2013 eKLR where the petitioner challenged the constitutionalism of both Section 24(3) and 25.
She argued that these sections infringed on Article 27 of the constitution which states that all
people are equal before the law and has the right to equal protection under the law. Justice
Mumbi Ngugi stated that it was unconstitutional on the act to place responsibility only on the
mother and she proceeded to find that the Act must be read in line with the constitution as
imposing parental responsibility on biological parents whether they were married or not at the
cannot be cared for by his parents can benefit from such service from other persons or
institutions other than the parents. There are three sets of provisions relating to maintenance and
care of children who do not have parental care. The first and second set of such provisions relate
to constant care of such provisions. Sections 147- 153 of the Act provides for conditions upon
which children can be provided for custody and care of foster parents and institutions.
The third set of provisions relates to alternative care of children relating to parental care under s.
119 which relates to children defined as being “in need of care and protection.”
In certain circumstances the law allows for the extension of parental responsibility for non-minor
children. Under section 28 of the Act, the right to education can be extended to a child of over 18
years provided that special circumstances exist with regard to the welfare of the Child. These
special circumstances must be shown to necessitate an extension of time and an application for
an extension is made in court by the child, parent or relative, or any person who has parental
responsibility for the child. This has been interpreted in the Dian Wambua v DR. Paul Wambua
2002 in which Diana Wambua was born on the 1 st Feb 1982 to dr. Paul and Diana Wambua. The
applicant Diana was engaged as a student at the University of Nairobi undertaking a medical
degree under the parallel program since 2001. Applicant’s parents had separated in 1995 and
custody of the children including the applicant was given to the mother. The respondent father
was …to pay…he paid school fees for the applicant up to form 4 at precious blood secondary
school. The applicant qualified to go to the university but she had already attained the age of
majority at sole and maintenance order …the respondent was a lecturer at UoN, and was entitled
to a staff education fund for his children which would cover up to 50% of the university fees.
Under this fund, a member of staff was entitled up to two children. Applicant approached the
father to sign for her the form that would entitle her to this benefit but he refused. She sought the
intervention of the vice chancellor …she then approached the courts seeking an order compelling
the father to pay part of, or the whole university fee. The court held that “the applicant is a
daughter of the medical daughter and the professor at the university. Mother’s profession is not
disclosed but she is well educated and working at the United Nations. To my mind this parents
belong to an educated elite. They have set high standards for their children and I therefore not
hold the applicant conscribing to attain what she considered to be the best for her. I find the
refusal by the respondent father to extend the ACSL facility to the applicant unreasonable.
Extension was also in Vebba Gathua v Grace Nyokabi Gathua 2005 eKLR. The
respondent(grace nyokabi) applied for an order extending parental responsibility beyond 18 yrs.
And sought an order that the father appellant be ordered to pay for her college education.. at the
time the child had been ...to Kampala university. The court extended parental responsibility but
based on the evidence presented to it directed the parties to go for an affordable institution in
Kenya or elsewhere offering a course of the applicant’s choice. The respondent then sought a
cheaper option and gained admission at the Athi river vocational training center for a diploma
course in business administration for a duration of 3yrs. In this case the courts held that
LECTURE
…the factors which weaken this ….included an increased focus on the best interest of the child
as the primary consideration and also with the effects of the industrial revolution fathers
Under common law, a parent has an obligation to take care of his child during marriage and this
obligation was only on the part of the father. In the event of marriage breakdown, the father has
always has a right to custody unless he forfeited …which is immoral or cruel conduct. This was
stated in the case of Re Agar Ellis 1883 24 CHD the position under common law was changed
by statutes which watered down the exclusive rights of fathers over children. Due to family
responsibilities, paternal preference was gradually replaced by maternal preference. The maternal
preference was based on the tender year’s doctrine which was intended to apply to children
under the age of 6 years and was invoked to give custody of children of tender years to their
mothers. Assumption her was that in the interest and welfare of children, mothers were better
suited to nurture and raise children. Maternal preference obtained in Kenya for a while and this
was under the guardianship of infant act which has since been repealed. The act provided that in
awarding custody, child welfare was the paramount consideration. And if that child was of tender
year’s custody was vested in the mother. Under common law, parental custody included the
power to...the child education, power to control the discipline of the child, power to determine
the child’s religion, power to control any property belonging to the child until they attain the age
of majority and the right to decide type of medical treatment to be given to the child including
the gender of parents. In Kenya, child custody is now regulated by the Children’s Act as read
Custody under the CA is defined to mean parental rights and duties as relates to the possession of
the child. Care and control is the actual possession of a child. We have two types of custody:
A custody order is a court order given to the applicant seeking custody of a child. The custody is
Not everyone can be given custody...has lived with the child for three months prior to the
c. The wishes of the foster parent and has lived for them 3yrs prior to the application
e. Whether the child has suffered any harm or the child has …
h. Whether care orders, supervision orders, personal protection orders or exclusion orders have
Where two parents are concerned they should decide between themselves who is best suited to
The court is under discretion to enforce these decisions as long it is in the best interest of the
child. Where there are two parents or guardians and only one is granted actual custody, the other
parent only acquires the rights and duties in relation to the child of what is refered to as the legal
person. Upon the death of a parent, the case involving custody, the other parent does not
automatically become the custodian o f the child except with the leave of the court. The
deaceased parent may have appointed a guardian in a way and if not, the court appoints one.
In the case of J.K.F v K.W.L CA 40 of 2014 eKLR 2014, this was a case in which the trial court
granted legal and actual custody of the minors to the mother and the father was granted unlimited
accsss to the minors during the days when they were not in school. The court further determined
that the two parties were to agree on maintenance. Father was aggrieved by the decision and
appealed. The appellant plegedd that the respondent mother plucked the teeth of one of the child
when she took them on august and as a result the child lost esteem and confidence. The fater
alleged that when the court gave the children to the respondent during the easter school hilodays,
the respondent mother neglected them and a s aresult they returned when they were sickly with
dark paled skin, dirty and bad mannerisms. Appellant further argues that the trial court was
biased as it did not consider the wishes of the children and their welfare. He also argued that the
mother had found a new husband and that his children would be exposed to the hostility of nw
inlaws.
The respondent on the other hand dismissed appelants allegation that he had married another
man. She explained to the court that owing to the nature of the applenats job who was a tour
operator, and children were most of the times left in the care of house girls who the applenat
hired and fired frequently. He argued that personality of the children is likely to be affected by
the explore to the many negative..of the housegirls who had no personal attachment ot the
children. He also demonstrated to the court that he had other childten as he was polygamous and
..granted custody to the respondent mother and noted that the appellant father had not
demonstrated any exceptional circusmtances that would have denied the respondent custody of
..various factors e.g. poverty,drug abuse, broken homes, dropping urbanization, peer pressure,
This approach posits that crime must be dealt with by criminal justice system regardless of who
commits it. This approach argues that child offenders must face the full force.
Under this approach, children are not seen as ..but as young people in conflict with the law. They
argue that a child offender has not yet matured into a professional criminal or offender therefore
be accorded a lenient treatment of the law. Kenya adopts special treatment approach.
THE FIRST ENCOUNTER A CHILE HAD in the judicial process IS THE ARREST(s.21 of the
criminal procedure court provides that in making an arrest, the arresting person shall confine the
body of the person being arrested unless the person submits by word or conduct. As a
requirement of lawful arrest, a person, wehther a child or adult must be informed of the reasons
of arrest and in the language they understand (provided under article 49(1)(a) of the constituiion.
However, when it comes to children, who have been arrested, depending on their age, a decision
must be made whether they should ebe detained and charged, releasedor transferred into a
remand.
Officer must also take into account information obtained from the victims of crime commited by
a child, the child himself, child’s parents and any past record of the youth or child in relation to
the offence. When the child awaits trial, they may be held in a secured detention facility. A
Cases receive an informal disposition by a magistrate whena child admits guilt and a grees to
settle the charges by meeting the requirements of the court which are laid out in a consent degree
involving the court. Some of the requirements that may be set out by the decree are:
a. Restitution. The juvenile is required to reimburse the victim or to pay a fine to the community to
c. M
The pre-arrangenemtn diversion faces many challenges in Kenya as the Kenyan criminal
s. 184 of the CA PROvides fir the jurid=sdiction of childrens’ court. A children court may try a
child in any offence except the offence of murder or any offence commited by the child in
presence of the parent. S. 185 of the CA gives power to the magistrates to remedy cases of the
children’s court. During the court hearing, the magistrates is informed of the allegations of the
child against the child and ..to hear and judge. Testimony, facts and cases are taken into account.
Punishement
once a case has been determined, a child found guilty of the offense is dealt with according to the
provisions of section 191. Section 190 provides for restrictions as to how child offenders are to
be punished. This include no life imprisonment, no death sentencing and the child at the age of
t10 cannot …
can be sent to bostol institutions, rehabilitation centres, community service, educational
Probation
A child offende3r should be taken to the probation hostels as provided by the ofenders act.
Probation officers take into account the results of any studies that have been made to the child.
offenders of 16 years and above. They are administered by the prisons department and managed
Waiver petition
This is where the prosecutor applies that a case would normally be under sole jurisdiction of the
Succcesss of a ..
Age
Amount of time that the youth services have to work with the offenders
If a waiver is granted the case is … the case is referred to the criminal court but if it is denied it
It is a well-established principle that human rights including child rights are indivisible and
interdependent. Article 4 of the CRC obliges state parties to undertake all appropriate legislative,
administrative and other measures for the impelemntation of rights including civil and political
Child has a right to a name, nationality, to know their biological parents and extended family as
well as the right to free and compulsory birth registration and issue of a birth certificate. Article
6(4) of the ACRWC obliges state parties to undertake measures to ensure that their constitutional
legislation recognizes the principles according to which a child shall acquire the nationality of
Under article 53 (1) of the COK provides that every child has a right to name and nationality at
birth. The right is expounded in the ..which stipulates that every child including a child with a
disability or special needs has a right to identity and registration at birth. This right is further
Article 14(4) of the constitution provides that a child under the age of 8 whose parents are not
known is preseumed to be a citizen by birth. The birth and death registration act makes iot
mandatory for the registrar of births to register a child within 6 months after birth.
opinion. These two provisions require that a child who is capable of forming and communicating
their views express those views in all matters affecting them. Under the Kenyan constitution.
Right to freedom of expression is provided for under article 50. In addition to this, article 35
Section 4 of the CA provides that the child shall be accorded an opportunity express their
opinion in judicial and administrative processes, taking into consideration the child’s age and
degree of maturity.
Administratively, the guidelines for child ..in kneya published in 2007 established and regulate
the child participation at home, school,community and national levels. In addition the ministry of
education undertakes co-curricular activities such as drama & music festivals. During school
Article 1 & 9 of the ARWC and article 14 of the CRC guarantee the freedom of religion.
ACRWA vests on the parents or guardians a duty to provide guidance and direction in exercise
of this right having regard to the involving capacities in best interest of the child.
Article 32 of the Kenyan constitution provides for these rights and it broadens the scope of these
rights by providing that a person may not be denied access to any institution employment or
Section 8 of the CA provides that a child has a right to religious education subject to appropriate
parental guidance.
peaceful assembly. This has been implemented by article 36 of the Kenyan constitution which
guarantees thwe right of every person including a child to form, join or participate in the
activities of any association. Article 37 provides right to …picket and demonstrate peacefully.
Right to privacy
It is provided by article 17(4), 23 AND 24 of the ICCPR . it ia also provided for art 10 of
DOMESTICALLY THE KENYAN constitution guarantees the rifht to privacy uinder article 31.
The right to privacy includes the right not to have one’s form of property searched, possession
Section 76(5) of the child act provides that in any proceedings concerning a child, child’s name,
identity, home, school, residence, photograph should not be published or revealed. This also
Child’s right to health is enshrined in various instruments. Article 14 of the African charter on
social and economic rights and articles 24 and 26 of the CRC guarantee this rights. Under both,
state parties are obliged to ..measures to ensure full implementation of this right. Such measures
include: to reduce and diminish child and infant mortality rate, combat malnutritious...ensure
appropriate healthcare for expectant mothers, allocate resources, primary healthcare fir children,
The Kenyan government has undertaken constitutional policy legislative and administrative
measures to realize this right. Article 43 of the constitution as read with section 9 of the
children’s act guarantee the child’s right to the highest attainable standards of health. Section 12
of the CA guarantees special care to children disabilities. The government has also made efforts
in ensuring that there is access to water to mitigate diarrhea and other waterborne diseases.
The government has also made efforts to roll out sex education to youth …led vulnerable by
In order to scale down infant mortality rates, the government has put in place immunization kits
for child aged 12-23 months for measles and other immunizable diseases.
Under the CRC parents or guardians have primary responsibility to secure ..abilities and
financial capacities the condition that make it necessary for the child’s development. Article
27(3) of the CRC obliges states to take appropriate measures, provide material assistance and
The state has set up cash transfer and other…in 60 districts so far. The cash transfer programs is
currently setving 134 households across the country. In a dition there is a devolved fund in
collaboration with the private sector such as …education bursary for poor children. The
governemtn has also resignated 15m for the kazi kwa vijana program. To create jobs for the
youth in rural and urban communities. There is also the slum upgrading program, the governemt
is currently upgrading programs in Kisumu, Mombasa and Nairobi. Finally, in order to enhance
hand washing to the children government started a handwashing drive although this program has
THE ICESCR sets out four purpioses fir education which are:
Under the African charter RWC state parties are obliged to present free and compulsory
education accessible, encourage regular attendance at schools and take special measures in
Kenyan government has made an effort. Constitutional provision at art 53(1)(b) , teachers service
The Kenyan government has developed a program on technical industrial occasional and
entrepreneurship training – an investment program for female students, disabled learners and
learners of poor household. The government has also increases institutions of education of
Article 23 of the CRC gurantees the right iof children mental disabilities to enjoy a full and
dissent life, right to special care and extension of assistance free of charge wherever possible, the
right to effective access to education and health care services. In its general comment no. 9 on
the rights of children with disability, CROC(COMMITTEE) has emphasized the need to
appreciate that the barrier is not the disability itself but rather the combination of social, cultural
and physical obstacles in which children with diabislities encounter in their daily life.
The UN also adopted the UN convention on the right s of person with disabilities 2006, which
called for global accountability and commitment to persons with disabilities. In Kenya, article 54
of the constitution (as read with person with diability act 2003) protects persons with any
disability.