This Act was enacted to consolidate all legislation that affects children and to give effect to certain international instruments which Kenya had ratified on the rights of children i.e. the convention on the rights of the child.
The Act provides for certain concepts which touch on rights and duties of parents over children
(a) Under Section 23, the Act provides for parental responsibility and it defines parental responsibility to mean 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. It further expounds on the duties and rights. On duties it includes the duty to maintain the child and in particular to provide him with an adequate diet, shelter, clothing, medical care and education and guidance. There is also a duty to protect the child from neglect, discrimination and abuse.
(b) The rights on the part on the parent include the right to give parental guidance in religious, moral, social cultural and other values. The right to determine the name of the child, the right to appoint a guardian in respect of the child, the right to receive administer or otherwise deal with the property of the child for the benefit of and in the best interests of the child. The right to arrange or restrict the immigration of the child from Kenya. And upon the death of the child the right to arrange for the burial or cremation of the child.
Section 90 -101 of Children’s Act - the presumption is that maintenance and the presumption is that maintenance of children is the joint responsibility of both parents and maintenance orders under the Act can be made whether or not matrimonial proceedings have been filed.
Read sections especially Section 94 which provides for considerations that the court will take into account in determining maintenance.
Insofar as custody is concerned the Act recognises 3 different types of custody under section 81
1. It provides for legal custody and under the custody legal custody is said to mean those rights and duties in relation to the possession of a child which are conferred upon a person by a custody order; in effect what legal custody does is to confer upon a person the right to make major decision about the child’s health, education and welfare. All these duties and rights are given under legal custody.
1. It also recognises actual custody and this means the actual possession of a child.
2. Joint Custody – Joint physical custody because the Act state4s that the actual physical custody of a child can be shared with one or more persons. Also implied in that section is sole custody because it is quite possible under the Act for one person to have both the legal and actual custody of a child.
3. Care and control of a child – this is in respect of a person who is in actual possession of a child but who does not have custody over that child. The Act imposes an obligation on that person who has care and control to safeguard the interests and welfare of that child.
In addition to custody the court can make certain orders under the Act
RESIDENT ORDERS Section 114 orders
An Access Order requires a person with whom a child is residing to allow the child to visit or to stay periodically with a person named in the order or to allow such person to have some other contact with the child. This is what is referred to as visitation rights in other jurisdictions. One proviso in the Act is that an access order shall not be made in relation to a child in respect of whom there is already a care order in place.
Care orders are given under Section 132 and what they basically do is to entrust the care and possession of a child to a person who is not the parent, guardian or custodian of the child or to an institution which is appointed by the court. This is usually for the protection of the child especially for those children who are in need of care and protection e.g. if they have been exposed to domestic violence, subject to female genital mutilation and so forth.
Residence orders are given to a person and shall require the child to reside with that person and also provide for arrangements to be made to facilitate the residence of the child with that person. Such an order will impose certain conditions and define the duration of residence and so forth.