The Constitution of Kenya and the Children’s Act have provisions that seek to ensure that the welfare of children is well protected, and parents don’t run away from their responsibilities.
The Children’s Act has made provisions on how parental responsibility is to be exercised. It allows more than one person to have parental responsibility of a child, including non-biological parents, so as to safeguard the best interest of the minor.
The law provides that if one is a parent, they cannot avoid their parental responsibility. Parental responsibility has been defined by the Children’s Act, section 23, 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 in a manner consistent with the evolving capacities of the child.
The duties referred to include in particular (a) the duty to maintain the child and in particular to provide him with (i) adequate diet (ii) shelter (iii) clothing (iv) medical care including immunisation and (v) education and guidance.
The Children’s Act and the constitution recognise that all the parents are equal. Each party has an equal responsibility to the child. When it comes to providing financial support for the child, the court will consider the income of the parties. If one of the parents does not have an income, then the other parent will have to shoulder all the costs of the child.
Where a parent marries another person who is not the biological parent of the child, the new spouse can acquire parental responsibility by applying to the court. The Children's Act allows for more than one person to have parental responsibility over the same child.
Section 24 (4) of the Children's Act provides that more than one person may have parental responsibility for the same child at the same time. This means that both the parent and the person that has been granted the parental responsibility will exercise the responsibility over the child at the same time.
If an application for parental responsibility is granted, all parties that have parental responsibility will be expected to carry out the duties of a parent as required by the act.
Where a party does not have parental responsibility over a child, it does not negate any obligation they may have towards the child. This is pronounced in section 23 (4) which provides that the fact that a person has or does not have parental responsibility shall not affect -
(a) any obligation which such person may have in relation to the child (such as a statutory duty to maintain the child);or
(b) any rights which in the event of the child’s death, such person (or any other person) may have in relation to the child’s property.
Further, Section 24 (6) provides that where more than one person have parental responsibility for a child, each of them may act alone and without the other (or others) in that responsibility.
If a party marries another, who has a child with another person, the Children's Act creates a positive obligation on the party to ensure that the welfare of the child is safeguarded. The fact that the child is not theirs does not mean that they don’t exercise any form of responsibility over the minor.
Section 24 (5) of the Children’s Act provides that a person who does not have parental responsibility for a particular child, but has care and control of the child may, subject to the provisions of this act, do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.
If a party applies to court to be granted parental responsibility, and is granted, any other person who had parental responsibility in the first instance does not cease to have the responsibility. Section 24 (5) provides that a person who has parental responsibility at any time shall not cease to have that responsibility for the child.