Kenyan Parental Responsibility Agreement

Long is gone, the ages when children were not considered worthy of any human rights and freedoms. Children were considered ancillary or appendages of their parents and not independent human beings with individual human rights and freedoms. This led to significant abuse of the children’s rights under the individuals assumed to have the children’s best interests. The Kenyan Constitution under Article 53 enlists various rights that children are entitled to. They include:

the right to name and nationality from birth;
the right to free and compulsory basic education;
the right to basic nutrition, shelter and healthcare; the right to be protected from all forms of abuse, violence, neglect or inhumane treatment;
right to parental care and protection from both the parents;
right not to be detained unless it is the last resort and when detained it should be for a short period and separate from the adults in similar conditions.

Right to equal Parental Care and Protection

As illustrated above, children are entitled to the inherent right to parental care and protection from both parents. The right to parental care and protection places a mandatory obligation for the parents of the child, mother and father, to jointly provide all the amenities and needs for the child, whether they are married or not.

This is in the furtherance of the child’s best interests principle, which underscores the child’s paramount importance in considering every matter. The child’s interests override the parents ‘welfare or their marital relationship. At all times, the child’s welfare must be conserved, protected, promoted and secured by the parents or any other individual making a consideration regarding any children matter. At this juncture, it is important to give definitions to critical terms relating to children as provided for by the Children Act 2022.

Right to equal Parental Care and Protection

Child: A child is any individual who has not attained the age of eighteen.

Care and Control: With respect to a child, this means all rights and duties which relate to the making of the day-to-day decisions concerning the child and include actual custody of a child.

Best Interest of the Child: means the principles that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution.

Guardian: Any individual appointed under the Children Act to exercise care and control of a child.

Maintenance order: It is an order issued by a court directing a specified person to make such periodic or lump sum payment for the maintenance of the child on such terms as the Court may consider appropriate.

Parent: It means the mother or father or any person who is conferred parental rights by law.

What is Parental Care?

Parental care is a comprehensive term that involves protecting, safeguarding and promoting child welfare by both parents. This majorly involves ensuring that the children are well catered for in matters relating to:-

Basic nutrition;
Shelter;
Clothing;
Medical treatment and immunization;
Water and sanitation facilities;
Basic education; and,
General duty of protection from all forms of abuse, neglect and discrimination and guidance on social and moral conduct.

This parental responsibility is jointly shared between the two parents, and neither of the parties should feel superior to the other or disregard their responsibilities. It is also essential to note that once a person is deemed to have parental responsibility for a child at any time shall not cease to have that responsibility for the child until the child reaches the age of 18 years or in special circumstances, such a person who is still in school as at an age which they can take care of themselves fully.

Once a person is deemed to bear parental responsibility, they cannot relinquish or transfer it to someone else. However, where a parent is temporarily unavailable to bear their parental responsibility, they are free to assign it to someone else. Still, they should ensure the child’s best interests are retained. When parents are separated, divorced or not living together, it makes it difficult to play their parental responsibilities jointly and equally, thus necessitating an agreement. The agreement is called parental responsibility agreement, co-parenting agreement, or parenting plan.

Ideally, a parental responsibility agreement is a contract between the two parents on how they will raise the child/children with a clear demarcation of their duties and responsibilities. It spells out which parent will bear which parental responsibility and when. Contents of a parental responsibility agreement A parental responsibility agreement includes details such as;

How the child or children shall spend time with each parent;
how the parents shall make joint decisions on matters relating to their respective parenting responsibilities, including religious upbringing;
the contact information of the parents;
a visitation schedule;
holiday and school break schedule;
In cases, where one or both the parents are not in Kenya, issues of transport and travel within and outside Kenya;
who bear the responsibility for health insurance and healthcare services;
the need for notification of parental movement in cases where either or both parents relocate or change residence;
how decisions relating to the education of the child shall be made; and
the joint and several responsibilities expenses for extra-curricular activities of the child.

Once the parents execute the parental responsibility agreement, it is deemed to be a binding and legal contract. Accordingly, it can only be revoked or terminated by a court order through an application by a parent with the parental responsibility or a child/ren. This means that the rules of contract making and vitiating will come into play, such as a party entered into the parental responsibility agreement through duress, undue influence or the agreement was entered into for illegal purposes, among other contract vitiating grounds.

Where there is an existing parental responsibility agreement, and one of the involved parents fails, refuses or neglects to play their responsibilities, the other party is entitled to make an application to the Children’s Court to have such party compelled to play their responsibility and maintain the child. This is what is called a maintenance order for the child. The Children Act 2022 entitles a parent, guardian or custodian of a child or an authorized officer to apply to the Court to determine any matter relating to the child’s maintenance and to make a maintenance order.

Extension of Responsibility Beyond the Eighteenth Birthday

The maintenance order can be for child/children below the age of 18 years or, in exceptional circumstances, persons who have already celebrated their eighteenth birthday. Such special circumstances that a court can extend the maintenance orders beyond the 18 years limit are: –

the person is or will be involved in the education and training which will extend beyond the person’s eighteenth birthday;
the person has a disability and requires specialised care which will extend beyond the person’s eighteenth birthday;
the person is suffering from an illness or ailment and will require medical care which will extend beyond the person’s eighteenth birthday; or
other special circumstances exist that would warrant the making of the order.

Maintenance Order

A maintenance order is an order issued by a court directing a specified person to make such periodic or lump sum payment for the maintenance of the child on such terms as the Court may consider appropriate. Maintenance orders are usually two-thronged, it involves the custody of the child/children and the financial provision of the child/children. Custody is the lawful or physical protective/guardianship duties and rights granted to both parents or one. It basically means who is responsible for the maintenance and parenting of the child. In most cases, both parents have the lawful custody of the child/children, while the physical custody can be shared between them or given to one parent, with the other being entitled to visitation rights. Regarding financial provision of the child/children, the Court may order the person against whom a maintenance order is made to make a financial provision for the child by—

periodic payments; or,
such lump sum payment, as the Court shall deem fit, to the person in whose favour the order is made or to any other person appointed by the Court.

Factors that guide the court when making an order for financial provision for maintenance

for financial provision to a party who is deemed to have parental responsibility, the Court is guided by the following considerations;

the income or earning capacity, property and other financial resources which the parties or any other person in whose favour the Court proposes to make an order, have or are likely to have in the immediate future;
the financial needs, obligations, or responsibilities which each party has or is likely to have in the immediate future;
the financial needs of the child and the child’s current circumstances;
the income, if any, derived from the property of the child;
any physical or mental disabilities, illness or medical condition of the child;
the manner in which the child is being or was expected to be educated or trained;
whether the respondent has assumed responsibility for the maintenance of the child and, if so, the extent to which, and the basis on which, he or she has assumed that responsibility, and the length of the period during which he has met that responsibility;
whether the respondent assumed responsibility for the maintenance of the child knowing that the child was not his child;
the liability of any other person to maintain the child;
the liability of that person to maintain other children.

The courts have pronounced themselves on the issues of child/children maintenance to the effect that maintenance orders are not meant to punish or oppress any party. They should be designed to provide for the needs of the child or children in question while at the same time respecting the financial status of the parent. A child can only be maintained within the means of the parent in question. Notwithstanding, it will not do for a party to say that they have an uncertain source of income; therefore, the adverse party should bear the responsibility of maintaining the child/children. The (said) party must establish to the court’s satisfaction that they have also made an effort to provide for the children’s upkeep. The party must prove their seriousness in meeting their obligation as a parent in meeting the shared parental responsibility.

Duration of Financial Provision Orders

The orders of maintenance of financial provisions commence on filling the application or when the Court decides and remains in force until the child/children attain the age of 18 years or in the existence of special circumstances until when the court decides. The Court can review periodic financial provision payments in situations where; the party who was supposed to make the periodic payment has died or where there is a significant change of circumstances of either parent or guardian, provided that the change is not detrimental to the best interest of the child.

Conclusion

The Constitution of Kenya 2010 and the Children Act 2022 entitle children to various fundamental rights and freedoms. One of the critical rights is the right to parental care and protection from both parents, whether married or unmarried. The right to equal and joint parental care and protection obligates the parents to shoulder the parental responsibility equally.

They can play so through mutual understanding or through entering into a parental responsibility agreement. Where a party to the parental responsibility fails to play their roles, the other party, the child, or someone acting in the best interests of the child/children can apply to the court for such person to be mandated to bear their parental responsibility.