AFRICA NAZARENE UNIVERSITY

SCHOOL OF LAW

GROUP 7

FAMILY LAW

LECTURER: DR. RODGERS O. ODHIAMBO

GROUP THREE MEMBERS ADMISSION NUMBER

1. Mariah Valentinah 110061809

2. Lydia Nyangige 110062538

3. Riiny Monica 110062892

4. Hillary Nyaika 110062763

5. Cecilia Elsie Simiyu 22j01amc032

6. Dorarosah Adhiambo 110062769

7. Simon Mikuro 20S01ALLB055

8. Rayarn muremi 110062112

9. Augustine Mudi Sagala 21J01ALLB073

Question

The Children Act 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. Critically evaluate.

HISTORICAL DEVELOPMENT OF PARENTAL RESPONSIBILITY

Parental responsibility has evolved significantly, rooted in historical legal precedents

and philosophical thought. Philosophers like John Locke emphasized parental
authority as a natural duty, influencing early legal frameworks. Contemporary
legislation continues to define parental responsibility, balancing rights with the state’s
interest in child welfare, as seen in various jurisdictions. This evolution underscores
the complex interplay between parental rights and societal norms.

His concept of paternal power diverged from traditional views by rejecting the notion
of absolute authority typically associated with fathers. While traditional perspectives
often equated paternal power with monarchal dominance, John framed it as limited
stewardship aimed at the child’s welfare until they could reason independently. He
emphasized that both parents share this responsibility, challenging the patriarchal
norm of his time. Locke argued that parental authority should be exercised for the
child’s benefit, not as an absolute right, thus laying the grounds for modern notions of
parental rights and responsibilities that prioritize the child’s interests over parental
control.

His views on maternal power also aligned with paternal power where he argued that
“paternal power” should be understood as “parental power” thus mothers are inclusive
in the governance of the child until they reach maturity. Unlike traditional views that
often-granted fathers absolute authority, he defined parental power as limited
stewardship aimed at the child’s welfare, rejecting the notion of absolute control. This
perspective opened avenues for recognizing women’s roles in parenting and
challenged existing patriarchal norms, laying grounds for future discussions on gender
equality within the family, and promoting a more balanced approach to parental rights
and responsibilities albeit without fully achieving gender equality in practice.
Under early English common law, children were viewed as their parent’s property and
parental responsibility was largely synonymous with paternal authority. William
Blackstone described parental power as paternal authority but acknowledged an
evolving legal view that emphasized care and protection over strict control.1

In the 19th century, there was the emergence of child protection laws and a shift
towards viewing children as individuals with rights, rather than property of their
parents. The case of R v Smith emphasized that parents have to provide for their
children failure to which would result in criminal liability. This marked a shift from
viewing children as dependents to recognizing that parents have specific obligations.

The Custody of Infants Act 1839 (UK) gave courts the ability to grant custody of
children under seven to their mothers in cases of separation, recognizing the mother’s
role in caregiving and marking a step toward shared parental responsibility.2

The 20th century saw significant reforms that moved away from parental dominance
and towards shared parental responsibility. In the case recent case Gillick v West
Norfolk and Wisbech Area Health Authority the concept of parental responsibility
was reshaped. It held that parental rights exist to safeguard the child’s welfare and
these rights diminish as the child matures and gains autonomy.3

In many African countries especially Kenya, parental responsibility was traditionally

a collective obligation, often extending beyond biological parents to include extended
members and the wider society. Customary laws still influence how parental
responsibility is viewed particularly in rural areas where community norms hold
significant weight.

During the colonial era, English Common Law heavily influenced Kenyan family law
where the focus was mainly on the father's duty to provide for the family with little
recognition of children’s rights as distinct from their parents.4

Following Kenya’s independence in 1963, reforms began to reflect changing views on

parental responsibility. Emphasis shifted from paternal authority to a more balanced

1
William Blackstone, Commentaries on Law of England [1765]
2
Custody of Infants Act 1839
3
[1986] A.C. 112 20
4
Kemei v Kemei [1968] KLR 62
understanding of shared responsibility between both parents. Some of the reforms
included:

I. Children and Young Person’s Act 1963; this law was one of the
very first to recognize parental duties towards children’s welfare
reflecting a post-independence desire to modernize Kenyan law in
line with international standards.
II. The Matrimonial Causes Act 1941: This Act played a role in
shaping parental responsibility after divorce or separation
allocating care and custody according to the best interests of the
child.

In 2010, the constitution of Kenya 1963 was promulgated marking a turning point in
the recognition of child’s rights and parental responsibility. Article 53 (1) 5guarantees
every child the right to parental care and protection and the duty of both parents to
provide for the child whether married or not. This provision clearly depicts shared
responsibility in law.

In 2022 The Children Act of 2001 was amended and it codified parental
responsibility while incorporating international conventions like the United Nations’
Convention on Rights of the Child (1989). It defines parental responsibility as
rights, duties, powers, and authority a parent has concerning a child.

The Marriage Act of 2014 also recognizes parental responsibility, particularly in

cases of divorce or separation affirming the duty of both parents to take care of their
children equally.6The caveat is usually the welfare of the child in all cases.7

INTERNATIONAL INFLUENCE ON KENYAN LAW

Kenya is a signatory to several international conventions that influence its legal

framework on parental responsibility. Some of these conventions include.

I. UN Convention on the Rights of the Child; this treaty was ratified in

1989, and it emphasizes that both parents are responsible for

5
The Constitution of Kenya 2010
6
LNM v Attorney General & others [2014] eKLR
7
JOO v MBO [2018] eKLR
 the upbringing and development of the child. It has been incorporated
into Kenyan law through the constitution and the Children Act.
II. African Chatter on the Rights and Welfare of the Child [1999]; This
convention was ratified in Kenya and it reinforces the need for both
parents to contribute to a child’s welfare, guiding Kenyan courts on
legal decisions involving parental responsibility.
Parental responsibility continues to evolve in Kenya with courts increasingly focusing
on the best interests of the child.

SCOPE OF PARENTAL RESPONSIBILITY.

PARENTAL RESPONSIBILITY UNDER STATUTE.

Article 53(1)(e) COK 2010 states that every child has a right to parental care and
protection which includes equal responsibility of the mother and father to provide for
the child whether they are married or not. According to section 31 Children Act
2022 parental responsibility means all 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. These duties include;
a) the duty to maintain the child and, in particular, to provide the
child with
i. basic nutrition;
ii. shelter;
iii. water and sanitation facilities;
iv. clothing;
v. medical care, including immunization;
vi. basic education; and
vii. general guidance, social conduct and moral values;
b) (b) the duty to protect the child from neglect, abuse,
discrimination or other differential treatment;
c) the duty to—
i. provide parental guidance in religious, moral, social, cultural
and other values that are not harmful to the child;
ii. determine the name of the child;
iii. procure registration of the birth of his or her child;
 iv. appoint a legal guardian in respect of the child;
v. receive, recover and otherwise deal with the property of the
child for the benefit, and in the best interests, of the child;
vi. facilitate or restrict the migration of the child from or within
Kenya;
vii. upon the death of the child, to arrange for the burial,
cremation of the child or any other acceptable method of
interment; and

(d) the duty to ensure that, during the temporary absence of the parent or guardian, the
child shall be committed to the care of a fit person.

PRINCIPAL OF THE BEST INTRESTS OF THE CHILD.

Per the COK 2010 Article 53(2) the best interests of a child are of key importance in
very matter concerning the child. This is further reinforced in the Children Act
section 8(1) which stipulates that in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law,
administrative authorities, or legislative bodies, the best interests of the child shall be
the primary consideration.
Additionally, all judicial and administrative institutions, and all persons acting in the
name of such institutions, when exercising any powers conferred under the Children
Act 2022 or any other written law, shall treat the interests of the child as the first and
paramount consideration to the extent that it is consistent with adopting a course of
action calculated to;
a) safeguard and promote the rights and welfare of the child;
b) conceive and promote the welfare of the child; and
c) secure for the child such guidance and correction as is
necessary for the welfare of the child, and in the public
interest

This section of the Act which was previously in section 4 of the amended Children
Act of 2001 was in play in the case of H.O.O v M.G.O 8which was a custody dispute
in which the court held that a child’s best interests must be paramount in all decisions
made in relation to the child.

WHO BEARS PARENTAL RESPONSIBILITY?

As per Article 53(1)(e) of the constitution as read together with Sections 31,32 and 33
of the Children Act, 2022 both parents of a child bear equal responsibilities of the
8
H.O.O v M.G.O 2021eKLR
child whether they are married or not. In the instance that they are married section 32
provides that the parents of a child shall have parental responsibility over the child on
an equal basis, 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 whether or
not the child is born within or outside wedlock.
In the case where parents are not married, section 32 stipulates that such parents may
enter into a parental responsibility agreement, in the prescribed form, whereby both,
in the best interests of the child, designate and agree on clear individual
responsibilities towards the child.

WHEN DOES PARENTAL RESPONSIBILITY CEASE

Under the Children Act parental responsibility ends once the child has attained the
age of 18Yrs unless an application is made and accepted to extend it this is laid out in
section28.circumstances include where the child suffers from a physical disability and
cannot be independent, are of unsound mind, suffer from a terminal disease or
educational needs. In M N B v J N B 9The key issue was parental responsibility and
maintenance obligations to children over 18. Held they are still obligated to pay
educational fees. Further given weight in Allan Njau V Eddie Hinga10 where held
that parental responsibility could be extended beyond 18 in special circumstances that
includes support in education.

The Concept of Shared Parental Responsibility Functions In Contemporary

Family Structure

Married Parents.

Marriage can be defined as a legally formalized union between a man and a woman.

In Hyde v Hyde11, Lord Penzance defined marriage as a voluntary Union for life of
one man and woman, to the exclusion of others. The case established the common law
definition of marriage.

9
M N B v J N M & Another 2019eKLR
10
Allan Njau v Eddie Hinga 2019eKLR
11
Rebecca Probert, "Hyde v Hyde: Defining or Defending Marriage", Child and
Family Law Quarterly, vol. 9. no. 3, 2007, pp. 322–336.
The Marriage Act provides under Section 3(1) that Marriage is the voluntary union of
a man and a woman whether in a monogamous or polygamous union and registered in
accordance with the Marriage Act. Further Section 3(2) provides that the couple shall
have equal rights during the marriage and upon dissolution. Rights include parental
responsibility rights.

Under common Law, a parent was only the father who was under an obligation to take
care of his child during marriage. However, common law took a different direction
following the promulgation of the Kenya Constitution 2010 and Amendments to the
Children’s Act in 2022, and it now follows that parents have equal rights towards the
child if they are married. Article 53 (1 )( e) every child has the right to parental care
and protection, which includes equal responsibility of the mother and father to
provide for the child, whether they are married to each other or not.12 Section 32(1) of
the Act provides that the parents of a child shall have parental responsibility over the
child on an equal basis, and neither the father nor the mother of the child shall have a
superior right or claim against the other in the exercise of such parental responsibility
whether or not the child is born within or outside wedlock.13

In reality, however, many Kenyans cohabit and have children. In times of conflict or
when a partner dies, it is usually the women who shoulder the burden of raising the
children and so need to turn to the courts for justice. Precedent case law has
established that the courts normally presume the existence of a marriage if the
partners have cohabited for a considerable period of time. For example, in Machani v.
Vernoor [1985] KLR 859, the Court of Appeal held that courts "can presume
existence of a marriage where there has been a ceremony of any form followed by
cohabitation or under customary law and the respondent has to show their marriage
fits in any of the laws". As a result, it confirmed that the magistrate was right to hold
that the Appellant had parental responsibility towards the children because there was a
valid marriage.

The law as it is presently, was enacted to cure the mischief that was present in
common law where if the couples were married, it’s the father who had most the
parental responsibilities to the children such us provision, shelter, education,
healthcare. While the mother could remain home to take care for the children. Now,
12
Art 53 (1)(e) Constitution of Kenya 2010
13
Section 3(1) of the Children’s Act 2022
both the mother and father have equal parental responsibilities to their children,
something that has enhanced more care for the children as opposed to neglect.

Unmarried Parents

The concept of Marriage is well defined above therefore all unions not captured or
recognized under the Marriage Act falls in this category. This cuts across the
cohabiting partners, early pregnancies and unwanted pregnancies. The constitution,
Children’s Act and Marriage Act insist that parental responsibility should be accorded
to all children as a right none should be discriminated upon.

Any two or more persons who have parental responsibility over a child may enter into
an agreement setting out the manner in which such joint responsibility shall be
exercised. Under Section 33(1) of the Act, Parents of a child and who are not married
to each other may enter into a parental responsibility agreement, in the prescribed
form, whereby both, in the best interests of the child, designate and agree on clear
individual responsibilities towards the child.14

Before the promulgation of the new constitution no right to support and maintenance
of a child could accrue where a legal relationship between the father and the mother
of the child could not be proved. The position in the Kenyan law is by then was that
the duty to maintain a child rested upon the persons who were in a legal relationship.
This meant that a child born out of wedlock had no right to be supported by their
putative fathers.

In Zak and Another vs, The Attorney General and another [2013] KLR,15 justice
Mumbi Ngugi found that in line with the provisions of Section 7 of Schedule 6 of The
Constitution, parental responsibility for children is imposed on both of their biological
parents, whether they were married to each other or not at the time of the child’s birth.
The judge was guided by the provision in the constitution in Article 53(e).

The introduction of the concept of parental responsibility in sections 32-33 of the Act
promises well for the child rights approach in the provisions of the Act. It also
emphasizes a retreat from paternalistic views of the welfare of children to the primacy
of the best interests of the child principle.16

14
Section 33(1) of the Children’s Act, 2022
15
Zak and Another vs The Attorney General and another [2013] KLR
16
3 (Re M (Contact: Parental Responsibility) [2001]);
 State Intervention and Parental Responsibility

In Kenya, the state plays a critical role in intervening when parental responsibility is
not being exercised in the best interests of the child, particularly in cases of neglect or
abuse. The legal framework aims to strike a balance between protecting the child and
respecting parental autonomy. However, finding the right balance between these two
objectives can be challenging. In Kenya, there are a number of landmark cases and
statutes that govern state intervention and parental responsibility. These include:

1. The Constitution of Kenya, 2010:

o Article 53 of the Constitution17 guarantees every child the right to
protection from abuse, neglect, and harmful cultural practices. It places
an obligation on the state to safeguard these rights.
o Article 53(2)18 specifically states that a child's best interests are of
paramount importance in every matter concerning the child, which is a
guiding principle in determining state intervention.
2. The Children Act, 2022 (replacing the Children Act of 2001):
o The Children Act is the primary statute addressing issues of child
protection, welfare, and parental responsibility in Kenya. It provides
for the state's intervention in cases where parents or guardians fail to
fulfil their responsibilities towards their children.
o Parental Responsibility: Sections 23-2519 of the Act outline the duties
parents have towards their children, including providing for their
health, education, and overall well-being.
o Protection from Harm: Section 11920 allows the state, through child
protection officers or the courts, to intervene when a child is in need of
care and protection due to abuse, neglect, or abandonment.
3. The Penal Code, Chapter 6321:
o The Penal Code criminalizes various forms of child abuse, including
physical, sexual, and emotional abuse. Parents or guardians who
17
Article 53 of the Constitution of Kenya, 2010
18
Article 53(2) of the Constitution of Kenya, 2010
19
Sections 23-25 of The Children Act, 2022
20
Section 119 of The Children Act, 2022
21
The Penal Code, Chapter 63
 subject their children to any of these forms of harm can face criminal
charges under the Penal Code.
4. The Sexual Offences Act, 200622:
o This law protects children from sexual abuse, and parents who expose
their children to sexual harm, either directly or through neglect, can be
prosecuted under this Act.
5. The Protection Against Domestic Violence Act, 201523:
o This statute provides mechanisms for protecting children from
domestic violence, including violence perpetrated by parents or
guardians. It grants the courts the power to issue protection orders to
remove a child from an abusive home.

Role of the State and Mechanisms of Intervention

1. Child Protection Services:

o The state has established child protection services, including children's
officers, to monitor and respond to cases of child abuse and neglect.
These officers have the power to remove children from abusive
situations and place them in safe environments.
o The National Council for Children's Services (NCCS) oversees the
implementation of child welfare policies and coordinates efforts to
protect children in need.
2. Judicial Intervention:
o The courts play a key role in safeguarding children’s rights. They can
issue orders for the removal of children from homes where they are at
risk and can also terminate or limit parental responsibility in extreme
cases of abuse or neglect.

The courts have ruled in several cases concerning the best interests of the child. For
example, in M A v R O O (2013)24, the High Court emphasized the principle that the

22
The Sexual Offences Act, 2006:
23
The Protection Against Domestic Violence Act, 2015
24
M A v R O O (2013)
best interests of the child must be the guiding consideration in all decisions relating to
custody and parental responsibility.

Balancing Child Protection and Parental Autonomy

The law strives to strike a balance between protecting children and respecting parental
autonomy. On one hand, parents have the right to raise their children according to
their values and beliefs. On the other hand, the state has an obligation to intervene
when a child's welfare is compromised. The principle of best interests of the child
serves as the overarching criterion to determine when state intervention is necessary.

Arguments for State Intervention:

 Protection of Vulnerable Children: State intervention is crucial in

preventing harm to children, particularly in cases of abuse, neglect, or
exploitation. The state has a duty to protect the most vulnerable, who may not
have the capacity to protect themselves.
 Preventing Long-term Damage: Prolonged exposure to abuse or neglect can
have long-term psychological, emotional, and physical effects on a child.
Early intervention by the state can mitigate these risks.

Concerns about Overreach:

 Parental Autonomy: Critics argue that excessive state intervention may

undermine parental autonomy, particularly when it comes to issues of
discipline, education, and religion.
 Cultural Sensitivity: In some cases, state interventions may clash with
cultural practices and norms. However, Kenyan law prioritizes the child’s
welfare over harmful traditional practices.

Several landmark cases have shaped the legal landscape around state intervention in
parental responsibility: In S.O. v L.A.K. (2019)25:The court ruled in Favor of
removing a child from the care of their parents due to evidence of abuse, reiterating
the importance of prioritizing the best interests of the child.

25
S.O. v L.A.K. (2019)
In the Matter of Baby A (2015)26:
The court intervened in a case of neglect, placing the child under the care of foster
parents after finding that the biological parents were unable to provide adequate care.

The Kenyan legal system attempts to strike an appropriate balance between protecting
children from abuse and neglect and respecting parental autonomy. Through statutes
like the Children Act and judicial decisions, the principle of the child's best interests
remains paramount. However, ongoing debates exist about how much the state should
intervene, especially in cases involving parental rights over discipline, culture, or
religion.

PARENTAL RESPONSIBILITIES AND PROPERTY MANAGENENT

The Act defines parental Responsibility as all the duties, rights, powers,
responsibilities, and authority that law a parent has in relation to the child and child’s
property in a manner consistent with the evolving capacities of the child. The act
provides for other ways in which a person can acquire parental responsibility over a
child including through adoption, guardianship and foster care. Parent have the duty
to provide for the child’s basic needs such duty has been expanded by the act to
include duty to manage and safeguard the property of the child, however they must
always act with the child’s welfare as the paramount consideration. This includes
managing any property or finances that the child may acquire through inheritance,
gifts or other sources.

The act allows parents or guardians to exercise rights over a child’s property but they
are expected to act as trustees. As trustees, they are bound by law to preserve and
grow the child assets and cannot act in ways that would unjustly deplete those assets.
In the case of Re Estate of SKM (deceased) 2016 the main legal issue before the
court was whether she could manage the minors’ property, particularly whether she
could sell or dispose of the estate without violating her duty to act in the best interests
of the children. The court allowed the mother to exercise her rights over the property
as a guardian but only under the condition that she would act as a trustee for the
children.

26
In the Matter of Baby A (2015):
The court has the power to appoint a guardian or revoke guardianship if its finds that the
parent or guardianship if its finds that the parent or guardian is managing the child’s
property. Under section 114 of the of the act, if the parent or guardian is not acting in the
best interest of the child, a third party can apply to the court for supervision or even the
replacement of the guardian. In cases where the child’s property is of significant value, the
court may require the guardian or parent to regularly report on the status of the property. 27
This ensures that financial transactions or decisions involving the child’s assets are
transparent and can be scrutinized by the courts. In the case of JOHN MWANGI KARIUKI V
FRANCIS KARIUKI (2016) EKLR where the minor had inherited significant property from the
deceased. However, concerns were raised about how John Mwangi Kariuki was managing
the minor’s estate, with allegations that he was acting in his own interests rather than those
of the child. The court found that the guardian was indeed not acting in the best interest of
the child. The court exercised the power under the children’s act, which allows for the
revocation of guardianship in the best interest of the child28

Parents or guardians who manage a child’s property are considered to be in a fiduciary

position. They are legally bound to manage the property in good faith and for the child’s
benefit. If the breach this duty, they can be held accountable for any financial losses incurred
as a result of mismanagement.

Section 103 of the act provides that where parents or guardians are seen as unfit to manage
a child’s property, the court can appoint an independent guardian or a professional trustee
to manage the assets. This provision is particularly important where there is risk of conflict
of interest or where there is risk of conflict of interest or where the parents are financially
unstable29

The children act of Kenya strikes a balance between granting the authority to manage their
child’s property and establishing safeguards to prevent abuse. The primary legal principle
governing parental authority over a child’s assets is that the child’s welfare must always
come first. The court plays an important role in monitoring and intervening where necessary
to protect a child’s property from misuse. The courts must balance respecting parental
authority with protecting the financial interests of children who may be vulnerable to
exploitation or negligence.

27
Section 23 of the children’s act of Kenya
28
Children’s act (Kenya) 2001
29
The children’s Act of Kenya provides a comprehensive framework for managing a child’s
property and financial affairs, emphasizing the welfare and best interests of the child. While
parental of authority is recognized, it is not absolute, and the law includes various
safeguards, such as court supervision, fiduciary duties, and the appointments of
independent guardians, to protect against misuse or mismanagement. However, the
effectiveness of these safeguards depends on proper enforcement and the vigilance of third
parties to protect children’s assets.30

Termination or limitation of parental responsibility

According to children's act 2022, parental responsibility means all the duties, rights,
powers responsibilities and authority which by law a parent of a child has in relation
to the child and child's property in a manner consistent with the evolving capacities
of the child31.
Grounds for termination or limitation of parental responsibility
Parental rights termination is typically pursued when the child's safety, well-being or
best interest are at risk. These are common reasons that may lead to termination of
parental responsibility.
i. Child abuse or neglect: when a parent has physically or emotionally harmed the
child, failed to provide necessary care or created an unsafe environment. The
parents’ rights may be terminated by the court.
ii. Abandonment or desertion: when a parent has left the child without providing
adequate support or contact for an extended period. Abandonment can leave a
child feeling rejected and can have a detrimental impact on their emotional and
mental health. The court seeks to ensure that the child has stable and nurturing
environment.
iii. Child abuse or neglect: when a parent has physically or emotionally harmed the
child, failed to provide necessary care or created an unsafe environment. The
parents’ rights may be terminated by the court.
iv. Abandonment or desertion: when a parent has left the child without providing
adequate support or contact for an extended period. Abandonment can leave a
child feeling rejected and can have a detrimental impact on their emotional and

30
Children Act of Kenya (2022). Kenya Law Reports
31
Mmtklaw.com
 mental health. The court seeks to ensure that the child has stable and nurturing
environment.
v. Child abuse or neglect: when a parent has physically or emotionally harmed the
child, failed to provide necessary care or created an unsafe environment. The
parents’ rights may be terminated by the court.

vi. Child abuse or neglect: when a parent has physically or emotionally harmed the
child, failed to provide necessary care or created an unsafe environment. The
parents’ rights may be terminated by the court.
vii. Abandonment or desertion: when a parent has left the child without providing
adequate support or contact for an extended period. Abandonment can leave a
child feeling rejected and can have a detrimental impact on their emotional and
mental health. The court seeks to ensure that the child has stable and nurturing
environment.
viii. Long-term incarceration: when a parent is incarcerated for a significant period,
preventing them from fulfilling their parental responsibilities, the court may limit
or terminate their parental rights.
ix. Substance abuse issues: when a parents substance abuse problem significantly
impairs their ability to care for and support the child. Substance abuse can
create an unstable and unsafe environment for s child, exposing them to
neglect, violence and other dangers. The court seeks to protect the child from
these harmful circumstances.32In Kenya, the termination or limitation of
parental responsibility is primarily governed by the Children Act, 2022 and
constitutional provisions concerning the welfare of the child. Kenyan courts have
ruled on various cases where parental responsibility is either terminated or
limited based on the best interests of the child. Here are some key principles
and case laws related to this area:
3. Relevant Case Law in Kenya
a) ZAK & Another v MA & Another [2015] eKLR

32
Guestandgray.com
 Facts: The mother of the child sought the court's intervention to terminate the
father's parental responsibility due to neglect and abandonment. The father had
failed to provide for the child and had shown no interest in their welfare.
Judgment: The court ruled that the father's parental responsibility could not be
terminated unless it was shown that he had permanently neglected the child or
was unfit to continue as a parent. The court emphasized that parental
responsibility is automatic and continuous, and termination is only considered
when it is in the best interests of the child.
b MW v KC [2015] eKLR
Facts: The mother sought termination of the father's parental responsibility on
the grounds of neglect and lack of support for the child.
Judgment: The court held that parental responsibility cannot be terminated
solely because one parent is neglecting their duties. It ruled that neglect can
lead to limitation in exercising parental responsibility but not termination unless
it is in the child's best interest.33
Consequences of termination or limitation of parental responsibility on the child
Many of the consequences may be positive and negative
Posive consequences.
a. Child is safe from abuse or neglect
b. Adoption becomes possible, giving the child a chance to be claimed and develop
a sense of worth and to secure a sense of positive identity.
c. Confusion of multiple caretakers is minimized
d. Child does not have to make court appearances
Negative consequences
a. Severe behaviour problems due to loss of parents
b. Unable to see siblings and other relatives from birth family
c. Failure to attach new caretakers
d. May be very difficult for child to trust anyone
e. Disrupted eating and sleeping habits
f. Difficulty adjusting to new rules in new home
g. Identity crisis, feeling like an outsider, embarrassment around peers
33
esharia.co.ke
h. Depression, anger, anxiety and inconsistent boundaries with new family.34
Alternative arrangements for the child’s care and well-being if parental responsibility
is terminated
 Kinship care: care within the family environment whereby the child is looked
after by the extended family.
 Foster care: placement of a child with a person who is not the child’s parent,
relative or guardian who is willing to undertake care and maintenance of the
child.
 Temporary shelter: safe family-like environment where children are placed for a
couple of hours to a maximum of six months while arrangements for family
preunification or placement in alternative care are made.
 Residential care: a children residential care which has been established by a
person or organization approved by the government.
The legal process for termination of parental responsibility
 Initiating the process: the process of terminating parental rights typically begins
with a petition filed by the appropriate party, such as a Childs welfare agency, a
legal guardian or a concerned family member. The petition outlines the grounds
for termination and provides supporting evidence.
 Court proceedings: once the petition is filed, the court will schedule a hearing to
evaluate the allegations and determine whether termination is in the best
interest of the child.
 Appeals and post-termination rights: after the court has issued a termination
order, the affected parent may have the right to appeal the decision, depending
on the jurisdiction.35
In the case of CW v SG, the court held that it was inconceivable that if the father
made an application for parental responsibility at that time, it would be granted.
Owing to the impact of D’s abuse of the step sisters on the family, the father could
not foreseeably exercise parental responsibility in the way which was beneficial for
D. the court therefore terminated parental responsibility.36

34
Practicenotes.org
35
Guestandgray.com
36
Stewartslaw.com
 EVOLVING GROWING CHILD AUTONOMY OF CHILDREN

Autonomy is a person’s ability to be self-sufficient, acting on their desires, values, and interests.
Autonomy in child development lets children know they have control over themselves and their
decisions.37

The growing autonomy of children

The increasing autonomy of children is a significant contemporary trend, characterized by

their growing capacity for independent thought, decision-making, and action. This shift is
influenced by a confluence of societal, educational, technological, and psychological factors.

Societal Transformations

 Changing family dynamics: Smaller family sizes and the rise of single-parent
households have granted children greater responsibility and self-sufficiency at earlier
ages.

 Expanded access to information: The internet and social media have exposed children
to diverse perspectives and ideas, stimulating critical thinking and independent judgment.

 Evolving cultural values: A heightened emphasis on individual rights and self-

expression has fostered a more permissive approach to child-rearing.

Educational Innovations

 Focus on higher-order thinking: Modern education systems prioritize the development

of critical thinking, problem-solving, and creative skills, empowering children to become
more self-directed learners.

Technological Advancements

 Digital devices: Smartphones, tablets, and computers provide children with access to
vast amounts of information and resources, fostering independent exploration and
learning.

 Online communities: Social media platforms and online forums offer opportunities for
children to connect with peers, exchange ideas, and develop their own identities.
37
https://mybrightwheel.com/blog/autonomy-child-development
As parents, we naturally feel the need to overprotect our children because we do not want them
to experience harm or pain. However, we must not limit their process of discovery by
overprotecting them, since this could affect their confidence and turn them into fearful and shy
children. While we have good intentions for our children, we must be aware that our actions can
affect the character of children as they grow into adulthood.38

Evolving child autonomy and the law

The infancy doctrine is protective of children, but it also limits their autonomy.

Another issue that the future law of children and social media must confront is the relationship
between developmental maturity and the law.

I argue, instead, that the relationship between law and developmental maturity is more complex.
Law helps to shape developmental maturity in two ways. First, the law helps to set benchmarks
of maturity that a person is expected to meet at different ages. Giving a young person certain
responsibilities and autonomy can serve to draw out more adult-like features, while infantilizing
them may stunt development. On the other hand, providing too much responsibility or autonomy
to a young person before they are otherwise ready to handle it may produce the opposite result.
Second, the law regulates the kinds of inputs a young person is exposed to that might shape their
development. For instance, by regulating what kinds of media children consume, law can help to
shape the ways that young people view the world and their role in it.

Children’s autonomy rights can be based on individual or categorical judgments about maturity.
The “mature minor doctrine” is a useful illustration of the interplay between these types of
judgments. As Professor Michele Goodwin explains in her Symposium piece on the impact
of Dobbs v. Jackson Women’s Health Organization (2022), in the united states minors have a
categorical right to access certain kinds of medical treatment, regardless of their specific
maturity. The abortion cases, however, demonstrate that in some circumstances—such as a
judicial bypass of parental consent—courts make an individualized determination regarding
maturity.

38
https://www.lpehochiminh.com/en/developing-children-autonomy/
In Kenya in the case of PAK Salim Mohammed v. Attorney General. The case involved the
right of a minor to receive reproductive care, the right of a clinician to treat her, and the
constitutional obligations of Kenya under its Constitution, the Court’s ruling affirmed that:39

 Abortion care is a fundamental right under the Constitution of Kenya and that arbitrary
arrests and prosecution of patients and health care providers seeking or offering such
services is illegal.

 Protecting access to abortion impacts vital Constitutional values, including dignity,

autonomy, equality, and bodily integrity.

 Criminalizing abortion under the penal code without Constitutional statutory framework
is an impairment to the enjoyment of women’s reproductive rights.

Legal Framework and Child Autonomy

 best interest of the child

The principle of “best interest of the child” is a key concept in the world’s child rights protection
movement and it mainly applies in the realm of family disputes such as custody, guardianship,
maintenance, adoption of the child40 and other issues. The overall theme of the principle is that
due focus and priority should be given to the political, economic and social interests of the child
whenever policies, laws and decisions are made which directly or indirectly affect children 41

The Constitution of Kenya 2010, the Children Act and International human rights instruments are
the laws that govern matters relating to best interest of a child. A child is defined under the
Children Act as any human being under the age of eighteen years. Article 53(2) of the
Constitution stipulates that the Child’s best interest is of paramount importance in every matter
concerning the child.

The laws of Kenya do not give a definition of the Best Interest of the Child. However, certain
courts have made an attempt at identifying the interests both directly and indirectly. An instance
where a court gave an example of an interest of a child, happiness as was the case, is in Manjit
39
https://reproductiverights.org/malindi-kenya-court-affirms-abortion-right-pak/
40
Stephen Parker (1994), “The Best Interests of the Child: Principles and Problems; The Best
Interest of the Child; Reconciling Culture and Human Rights”, International Journal of Law,
Policy and the Family, Vol. 8, Issue 1, p. 27.
41
NOTES ON THE PRINCIPLE “BEST INTEREST OF THE CHILD” :( Aron Degol and Shimelis
Dinku)
Singh.42 Principal Kadhi Abdulhalim also, however obliquely, identified the interests of the child
as their overall well-being, that is, physical, emotional and educational needs.43 A similar position
was taken in N M v J OW where Justice Kariuki stated that focusing on the best interest means
that the decisions made are aimed at protecting and promoting the “...happiness, security, mental
health and emotional development...” of the child.44

Right to be heard: Children have the right to express their views and have them taken into
account in matters that affect them.

Challenges and Considerations

 Cultural and societal differences: Legal frameworks can vary significantly across
different cultures and societies, reflecting diverse values and beliefs about childhood and
autonomy.

 Age-appropriate decision-making: Determining at what age children should be granted

certain decision-making powers can be challenging.

 Balancing rights and responsibilities: While children have rights, they also have
responsibilities, and the legal framework must address how these are balanced.

 The conflict between children’s autonomy and paternalism

“Paternalism” is usually regarded as an intervention behavior. Paternalism in education is

manifested in the following aspects: indoctrinating knowledge and values in children, requiring
children to obey authority, suppressing children’s autonomy or freedom, restricting children’s
choices, preparing for the future of children so as to sacrifice time and autonomy in the present

42
Manjit Singh Amrit V Papinder Kaur Atwal, Judgement of 3 July 2009, High Court of Kenya,
eKLR
43
H G G v G G G G, Judgement of 12 November 2018, Kadhi’s Court, eKLR.
44
N M M v J O W, Judgement of 27 September 2016, High Court of Kenya, eKLR.
HOW PARENTS ADOPTS TO MODERN CHALLENGES THAT RISKS THE LIFE OF
THEIR CHILDREN

The rapid advancement of technology has introduced new risks and challenges for children,
including exposure to inappropriate content, cyber bullying, and online predation45. Parents are
now faced with the responsibility of navigating these digital landscapes to protect their children.
One significant aspect of this challenge is the need for digital literacy. Parents must ensure that
their children are equipped with the skills to navigate the internet safely, which includes
educating them about privacy settings, recognizing harmful content, and understanding the
implications of sharing personal information online.46 The Children Act does not explicitly
address these modern challenges, highlighting a gap in the legal framework regarding digital
parental responsibility. The lack of specific guidelines on how parents should manage their
children's online activities can lead to confusion and inconsistency in the application of parental
responsibility.

Moreover, the rise of social media and online gaming platforms necessitates that parents actively
monitor their children's online activities. This responsibility may require parents to implement
parental controls and engage in open discussions about online behavior. However, the balance
between monitoring and respecting a child's privacy can be challenging, raising ethical
considerations about parental authority in the digital age.

Another pressing issue is the impact of technology on children's mental health. The prevalence of
social media addiction, anxiety, and depression among children and adolescents is a growing
concern. Parents have a responsibility to recognize the signs of mental health struggles and
provide appropriate support. They must be proactive in seeking resources and support for their
children, including counseling services and mental health education. Open communication

45
https://violenceagainstchildren.un.org/sites/violenceagainstchildren.un.org/files/
expert_consultations/bullying_and_cyberbullying/
46
Mulinde Brian, ‘Protecting And Safeguarding Your Kids On The Internet ‘ (March 18, 2024)
https://parentsafrica.com/digital-literacy-protecting-and-safeguarding-your-kids-on-the-
internet/
between parents and children is essential for addressing mental health issues. Parents must create
an environment where children feel comfortable discussing their feelings and experiences. 47

Contemporary family structures, including single-parent households, blended families, and same-
sex parenting, present unique challenges to parental responsibility.48 The Children Act recognizes
the rights of both parents, but the application of these rights can vary significantly in non-
traditional family settings. In cases of separation or divorce, effective communication and
cooperation between parents are essential for fulfilling parental responsibilities. The Act's
provisions must be interpreted flexibly to accommodate diverse family dynamics while ensuring
that the child's best interests remain paramount. The challenges of co-parenting can complicate
the exercise of parental responsibility, particularly when parents have differing views on child-
rearing practices.

As children increasingly engage in online activities, questions arise regarding parental liability
for their children's actions. If a child engages in cyber bullying or other harmful behaviors,
should parents be held accountable? The lack of clear legal standards in the Children Act
regarding parental liability for online behavior creates uncertainty for parents navigating these
issues. Furthermore, parents face ethical dilemmas in balancing their authority with their
children's autonomy. The definition of parental responsibility emphasizes the authority of
parents, but the modern context requires a more nuanced approach that considers the child's
rights and agency. Parents must navigate the complexities of fostering independence while
ensuring their children's safety and well-being.

47
The U.S. Surgeon General’s Advisory , ‘Social Media and Youth Mental Health ‘
https://www.hhs.gov/sites/default/files/sg-youth-mental-health-social-media-advisory.pdf
48
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4240051/