The Children Act 2022, CAP 141, is a landmark piece of legislation in Kenya that seeks to protect and promote the rights and welfare of children. One of the critical aspects of this Act is the provision for guardianship, which ensures that children who lack parental care are provided with a legal guardian to safeguard their best interests. This article explores the types of guardianship, the appointment process, legal limitations, extension of guardianship, grounds for withdrawal, and frequently asked questions (FAQs).
Understanding Guardianship under the Children Act 2022
Definition of Guardianship
A guardian, as defined by the Children Act, is a person appointed by will or deed by a parent of a child or by order of the Court to assume parental responsibility over a child on the death of the parent of the child either alone or jointly with the surviving parent of the child. Subsequently, guardianship takes up the legal parental responsibility granted to a child by either one of the biological parents alone or another person upon applying to the court for the relevant orders. This guardian’s responsibility includes providing for the child’s basic needs, education, health, and overall well-being. A guardian may be appointed on application in the prescribed form for any child who is resident in Kenya whether or not the child was born in Kenya or is a Kenyan Citizen.
Key points to note about Guardianship under the Children Act 2022
- Any child is eligible to be placed under guardianship if the child is a resident of Kenya, whether or not the child was born in Kenya or is a Kenyan citizen.
- Only an adult Kenyan Citizen can be appointed as a guardian.
- A guardian may be appointed concerning a child, the estate of a child, or the estate to which the child is a beneficiary, or concerning both the child and the child’s estate.
- A guardian who is not the father or mother of a child shall not remove the child from the jurisdiction of the Republic of Kenya without obtaining an order of the Court, and such leave shall be granted only in exceptional circumstances.
- Where leave is granted for a non-biological guardian to travel outside Kenya with the child, the Court shall impose such conditions and restrictions as it shall consider appropriate having regard to the best interests of the child.
- A guardian who is granted leave to travel out of the Kenyan jurisdiction with the child shall be required to produce the child to court upon return.
- A guardian may be appointed in respect of the person or estate of the child or both.
- Where a guardian is appointed only in respect of the estate to which the child is a beneficiary, it shall not be necessary for that purpose for the guardian to have actual custody of the child.
- Before a guardian appointed to manage a child’s estate, or other estate to which a child is a beneficiary, enters upon the execution of their trust, the guardian shall execute a bond undertaking to diligently, faithfully manage the estate and prevent any loss of the child’s estate among other conditions.
Qualifications for appointment as guardian
- A person qualifies to be appointed as a guardian if that person—
- is a Kenyan citizen;
- is a fit person, that is, someone who is shown to the satisfaction of the Court to be of high moral character and integrity and who is capable of exercising proper care and guardianship of a child;
- is not a person with mental illness as determined under the Mental Health Act ( 248); and
- has not been convicted of any of the offences specified in the Third Schedule to the Act or similar offences.
- A person shall not be appointed to be the sole guardian of a child if the person is not a relative of the child unless exceptional circumstances exist to justify such appointment, regarding the child’s welfare and best interests.
Rights of Surviving Parents as To Guardianship
- On the death of the father or mother of a child, the surviving parent shall be the guardian of the child either alone or jointly with the guardian appointed by the deceased parent, if any.
- Where no guardian had been appointed by the deceased parent or the guardian appointed by the deceased parent is dead or refuses to act, then the court may appoint a guardian to act jointly with the surviving parent.
- Where a guardian is appointed to act jointly with the surviving parent, the guardian shall continue to act as guardian after the parent’s death.
- Where a surviving parent is separated from the deceased parent before his or her death, the Court may, on application by any other person, determine whether the surviving parent is fit to act as guardian of the child.
Types of Guardianship
The Children Act 2022 recognizes several types of guardianship, each tailored to meet the specific needs of the child:
- Testamentary Guardianship: This occurs when either parent appoints a guardian for their child through a will or a deed. The appointed guardian assumes responsibility for the child upon the death of the parent(s) or in case of the parent’s incapacity to take care of the child either jointly with the other parent or alone. The validity of testamentary guardianship only applies when: –
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- If a deed appoints the guardian, the deed is dated and signed by the person making the appointment in the presence of two competent witnesses;
- If a written will appoints the guardian, the will is made, executed, and attested by the law relating to testamentary instruments.
A testamentary guardian shall act jointly with the child’s surviving parent during the parent’s lifetime unless the parent objects to the guardian’s appointment.
Suppose the surviving parent or the appointed guardian objects to the other’s fitness to take up parental responsibility. In that case, they should apply to the court objecting to such guardianship, and the court shall make a decision taking into account the welfare and the child’s best interests.
Where both parents appoint guardians, the guardians so appointed shall, after the death of the surviving parent, have joint responsibility towards the child.
If a guardian is appointed to act jointly with the surviving parent, the guardian shall continue to act as guardian after the parent’s death or if the deceased parent had appointed a guardian jointly with that appointed parent. -
- Court-Appointed Guardianship: The Court may appoint a guardian on application by any person in the prescribed form in any of the following circumstances—
- where the child’s parents are deceased or cannot be found, and the child has no guardian or other person having parental responsibility over the child;
- Regarding a child for whom the court has issued a financial maintenance order from a step-parent or a guardian as provided under Section 121.
- Regarding a child who needs care and protection as provided for under section 144 of the Act;
- at the time of making an adoption order in a domestic or inter-country adoption as provided for under section 195 of the Act;
- In respect of a child found in situations of emergency; or,
- Where any other sufficient grounds exist that necessitate the appointment of a guardian in respect of the child, having regard to the child’s best interest.
Consideration by the Court before issuing a guardianship order
In considering whether to make a guardianship order in respect of a child, the Court shall have regard to—
- the views of the—
- child;
- applicant’s spouse if any; and
- the person who has actual custody of the child;
- the importance of preserving the child’s existing family relationships;
- the importance of preserving the child’s particular social-cultural, religious and linguistic environments;
- the ability and the willingness of the proposed guardian to effectively discharge the duties imposed on the proposed guardian;
- the need for the Court to be satisfied that there is no conflict of interest between the proposed guardian and the child; and
- the children officer’s report.
Limits of Guardianship
Guardianship under the Children Act 2022 is not without its limits. The Act imposes several restrictions to ensure that the rights, welfare, and best interests of the child are prioritized:
- Best Interest of the Child: As stipulated in Section 8 of the Act, all decisions made by a guardian must be in the child’s best interest. This principle overrides all other considerations.
- Duration of Guardianship: Guardianship is typically granted until the child reaches the age of 18 unless extended by the court under exceptional circumstances, such as; where the child suffers from a mental or physical disability or from an illness that will render him incapable of maintaining himself, or of managing his affairs and his property without assistance of a guardian after his eighteenth birthday or such other exceptional circumstances concerning the child as the court may deem proper.
- Financial Responsibility: Guardians must provide for the child’s basic needs, including food, shelter, education, and healthcare. Failure to meet these obligations can result in the withdrawal of guardianship.
- Accountability of the child’s estate: Guardians are legally obligated to ensure that the child’s estate is managed transparently and accountably and that there is no abuse of resources. Mismanaging the estate is an offence.
- Financial and Legal Supervision: The court retains the right to oversee the use of the child’s estate and ensure proper management
Extension of Guardianship
In certain situations, the court may extend guardianship beyond 18 years. This is particularly relevant for children with mental or physical disabilities or those pursuing higher education. The extension must be justified by the child’s specific needs and circumstances as provided under Section 127 of the Act.
Who may apply for an extension of guardianship?
An application for an extension of guardianship shall be filed before the child’s eighteenth birthday and may be made by—
- the child;
- parent or guardian of the child;
- a relative of the child; or
- the Secretary of Children Services, which is an office in the public service.
Withdrawal and Termination of Guardianship
Guardianship can be withdrawn or terminated under several conditions, including:
- Revocation of the appointment: If the appointment of a guardian is by will or a deed, the maker of the will or deed can revoke the appointment at any time during their lifetime.
- Misconduct: If a guardian is found to be abusive, neglectful, or otherwise unfit, the court may revoke the guardianship.
- Voluntary Relinquishment: A guardian may voluntarily relinquish their responsibilities, provided that an alternative arrangement is made for the child’s care
- Death or incapacitation of the Guardian: Upon the death or incapacitation of a guardian, the court will appoint a new guardian to ensure the child’s continued care.
Frequently Asked Questions (FAQs)
- Who can apply for guardianship in Kenya?
Any Kenyan Citizen who is of sound mind, over 18, not convicted of any offense, is morally and integrity fit and capable of providing for the child’s needs can apply for guardianship.
- Can someone be appointed a guardian to a child they do not have a blood relation?
Yes, any fit Kenyan citizen can be appointed as a child’s guardian. However, the person who is not a relative to the child cannot be appointed to be the sole guardian unless exceptional circumstances exist to justify such appointment regarding the child’s welfare and best interests.
- How is a guardian appointed?
A guardian is appointed by court order, either upon application by an individual or from the testamentary will of the deceased parent(s) of the child.
- Who appoints a testamentary guardian?
A testamentary guardian is appointed by a parent or guardian of the child through a validly executed will or a validly executed deed.
- What is the purpose of appointing a guardian?
A guardian is appointed to take care of the child’s estate, the child’s estate of which the child is a beneficiary, or both the child’s estate and the child’s estate.
- Can two guardians be appointed over one child?
Yes, two people can be jointly appointed as a child’s guardian to assume all the child’s parental responsibilities, including providing food, shelter, medication, clothing, moral and religious growth, and education, among others.
- Do I need to register my testamentary guardianship with the court?
Yes, an instrument creating testamentary guardianship under the Children Act and the Guardianship Practice and Procedure Rules 2024 shall be presented to the Court for registration within thirty days of its execution. A parent or guardian who revokes a testamentary instrument after its registration shall, within fourteen days of its execution, present the instrument of revocation for registration.
- Where does the registration of the guardianship instruments take place?
Instruments for which registration is required under the Children Act and the Guardianship Practice and Procedure Rules shall be presented for registration at the nearest Court registry where the child ordinarily resides.
- When does a testamentary guardian assume guardianship?
A testamentary guardian appointed under a testamentary instrument that has been duly registered by the Court shall assume the role of a guardian of the child immediately upon the death of the appointing parent or guardian.
- What is the process of applying for guardianship?
If there are pending or previous court proceedings relating to the child, the process involves filing a Notice of Mention and a supporting affidavit stating factual circumstances and grounds for the application. However, if there have not been any proceedings before a court relating to the child, the application is made by way of originating summons and supported by an affidavit stating the factual circumstances and grounds of the application.
- Can a guardian travel with the child from Kenya?
Only a guardian who is a father or the mother of a child can travel outside the country with the child. Any other guardian must first seek leave from the Court to remove a child from Kenya, and the leave is discretionary. Where a court grant leave to a non-biological guardian to remove the child from Kenya, it shall impose such conditions or restrictions as it may consider appropriate. The guardian shall also produce the child before the court upon return.
- What are the rights of a guardian?
A guardian has the right to make decisions regarding the child’s upbringing, education, health, and general welfare. However, these rights must be exercised in the child’s best interest and within the limits set by the law.
- Can a guardian be held legally responsible for the child’s actions?
While a guardian is responsible for the child’s well-being, they are not automatically liable for the child’s actions. However, they may be held accountable if their negligence or misconduct contributes to the child’s wrongful actions.
- What happens if a guardian fails to fulfil their duties?
If a guardian fails to meet their obligations, the court may intervene and take appropriate action, including the withdrawal of guardianship and the appointment of a new guardian (Section 38).
- Can a child choose their own guardian?
While a child’s preference may be considered, the final decision rests with the court. The court will prioritize the child’s best interest over their personal preference.
- Can guardianship be challenged in court?
Yes, guardianship can be challenged if there is evidence of misconduct or neglect or if it is not in the child’s best interest. Any interested party, including the child, parent, relative, or Secretary of Children Services, can file an application to challenge the guardianship.
- What is the role of the Children’s Officer in guardianship cases?
The Children’s Officer plays a crucial role in assessing the suitability of a guardian, conducting home visits, and providing recommendations to the court. They also monitor the guardian’s performance to ensure the child’s welfare and best interests are always safeguarded.
Conclusion
Guardianship plays a crucial role in ensuring the well-being of children who lack parental care. The Children Act 2022 and The Children (Guardianship) (Practice and Procedure) Rules, 2024 provide a structured legal framework for guardianship, ensuring that children’s rights and welfare are safeguarded. Whether through testamentary, parental, or court-appointed guardianship, the law aims to uphold the best interests of the child at all times.
For any legal assistance regarding guardianship or any other child-related matters, consult Njaga & Co. Advocates to ensure compliance with legal provisions and to secure the future of the child in question.
For personalized legal assistance, contact Njaga & Co Advocates. Our team is ready to provide world-class legal services tailored to your needs. Let us help you navigate the complexities of the legal system and achieve the justice you deserve.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified advocate for personalized legal guidance.
