Parental responsibility has been defined by Section 23 of the Children’s Act as 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 in a manner consistent with the evolving capacities of the child.
Parental responsibility is a very fundamental entry in a child's life. It is actually a right in the child's hands. Any parent who abdicates or abandons this responsibility is usually dealt with squarely by the law. Such parents are punished for child neglect. Others are sued by the children for maintenance for upkeep. The bulk of the cases in the children courts all over Kenya are related to parental responsibility.
The Children's Court has been doing a commendable job in this area. As you would imagine,many uncaring fathers and mothers would do anything to brush off this statutory burden off their shoulders.
It is however not an easy excise. Termination of parental responsibility, is the absolving the parent of his/her parental responsibility. The termination of parental responsibilities has the effect of absolving the parent of the duties of a parent under the The Children's Act.
According to the Act, parental responsibility automatically comes to an end once the child becomes 18 years old, if there is no order for the extension of the parental responsibility. This does not however mean that the parent or the child cannot apply to the court to terminate the parental responsibility, since the courts have the jurisdiction to entertain such cases. Termination of parental responsibility is two fold. It can be initiated by the parent or the child.
Termination of parental responsibility by a parent can either be voluntary or involuntary. A voluntary termination, is where the termination is attained with the will and consent of the parent. It is acquired by a parents own volition. Voluntary termination of parental responsibility can occur in any of the following ways:-
-When the child is freed for adoption.
-When the child is adopted.
-Where parental responsibility was acquired by virtue of one being appointed guardian, then if one ceases to be a guardian, the parental responsibility ceases all together.
-When an application made to court to terminate parental responsibility, by the parent is successful.
If the parent consents to the termination of the parental responsibility.
An involuntary termination of parental responsibility, occurs without the volition of the parent. The parent may actually want to retain the responsibility, but due to one reason or the other it has to be taken away. One common way, is through an application of any person, to the court, citing that the parent of the child is unfit, or that the parental responsibility is not in the best interest of the child. The common grounds for determining that a parent is unfit include:-
Serious abuse or neglect of the child by the parent.
-Abandonment of the child by the parent.
-Long term mental illness or deficiency of the parent.
-Long term alcohol or drug induced incapacity of the parent.
-When the parent does not maintain constant contact with the child, or shows extreme parent disinterest.
-When the parents are imprisoned for long durations of time, such that it may have a negative impact on the child.
-When the parent is violent towards the child.
-If the parent is not the biological parent of the child.
A child can also seek to have the parental responsibility of the parent terminated. This can be made through an application to the children court, enumerating the grounds which support the application. The grounds can range from anything, and will depend on whether the court will be persuaded or not. The court has to be certain that the decision it will make will be in the best interest of the child that is what is of utmost importance. Some of the grounds that the child making the application may rely on include:-
If the parent is too ill or too old and hence cannot be able to meet their obligations.
If a child had had the extention of the parental responsibility beyond the 18th birthday because they could not take care of themselves, and the child can now take care of oneself, they can apply to have their parent relieved of the duties.
A parent may want to relieve himself/ herself from parenting obligations. Society may however see it as immoral and irresponsible of the parent. The reality with us is that, even though parents may not have formally/ legally been relieved off their parental responsibilities, we have a huge number of parents who don’t exercise parental responsibility.