Parental Responsibility Agreement in Kenya

The Constitution of Kenya, 2010 accords every child a right to parental care and protection including the equal responsibility of the mother and father to provide for the child whether married to each other or not. The basis of the affairs of a child are to be governed by the principle of the Best Interest of the Child, which the Constitution of Kenya considers to be of paramount importance in every matter concerning the child.

What is Parental Responsibility?

Parental Responsibility is all the duties, rights, power, responsibilities and authorities that are granted to a parent of a child by the law in the matters that concern the child and the child’s property. The duties given include:

i. The duty to maintain the child and provide him with basic human needs such as adequate diet, shelter, clothing medical care including immunization and education and guidance.

ii. The duty to protect the child form any form of neglect, discrimination and abuse
Guardians are not viewed as the parents of the child. Guardians are accorded Parental Responsibility of the child but guardians are not at all times the parents of the child. A guardian can either be appointed by a will or agreement of the parents of the child or a court of law when satisfied that the person has charge or control of the child upon the death of the parent. Guardianship is limited to the death of the parents of a child and appointment by either court or a will or agreement.

The rights accorded to those that possess Parental Responsibility of a child include; the right to determine the name of the child, the right to provide moral guidance to the child, right to appoint a guardian in respect of the child, the right to restrict immigration of the child and the right to bury the child when the child dies.

What is a Parental Responsibility Agreement?

This is an agreement between persons that share the parental responsibility of a child. The Parties to a Parental Responsibility Agreement should enter into it without any coercion or duress. The Agreement only becomes effective if made in the form that is prescribed by the Chief Justice.

Parental Responsibility cannot be surrendered. Once the parties enforce the signing of this agreement, a person cannot surrender the parental responsibility of the Child. However, the Agreement can only be terminated a court on the application of;
i. Any person with the parental responsibility of the child – Any person with the parental responsibility of a child could move to court to seek for the termination of the Parental Responsibility Agreement
ii. The Child himself with leave from of Court – This is on condition that the court satisfies that the child has enough understanding to make the application.

The Parental Responsibility terminates naturally when the child attains the age of eighteen (18) years. However, the Children’s Act provides that the Parental Responsibility may be extended after the child’s eighteenth birthday when the court is satisfied either by application or in its own judgement that special circumstances exist concerning the welfare of the child. These special circumstances may include where the child is dependent on the parents and in the case for Children Living with Disabilities causing them to be solely dependent on their parents.

The application for termination by the court can be made by either the parent or relative of the child, any person with the parental responsibility of the child, the Director of Children’s’ Services and the Child with leave form the court.
What then Constitutes a Parental Responsibility Agreement?

1. Parties to the Agreement
   The Agreement must contain a detailed description of the parties to the Agreement who are the parents of the child and the child. This section will highlight their names and identification documents such as their national identification card numbers and/ or Passport number of the parents in the agreement. It shall also constitute the name and the Birth Certificate and other identification documents of the child.

1. Custody of the Child
   This section outlines the role of every person in the agreement. It seeks to explain the custody set up for the parents. The law defines Custody as either Legal Custody and Actual Custody. Legal Custody defines the rights of the and duties that the parents possess over the child whereas Actual Custody defines the physical possession of the child. This section of the Agreement will contain the specific details of who has the actual custody over the child. It will also describe the visitation structure and arrangements of the parents according to the Schedule of the Child’s activities such as their time during the academic year and during the school holidays.
2. Maintenance of the Child
   This section outlines the different contributions to be made by the parents towards the maintenance of the child in order to fulfil the duties of parents on maintenance of their children as required by law such as the provision of adequate diet, shelter, clothing, medical care and education and guidance. Article 53 provides for equal parental responsibility among parents and therefore the contribution for maintenance is to be equal towards the life of the child.

Would you like to enter into a Parental Responsibility Agreement? Please contact us on info@swkadvocates.com