Parental Responsibility Agreement in Kenya

What is a Parental Responsibility Agreement in Kenya?

A Parental Responsibility Agreement, sometimes called a PRA or a co-parenting agreement, is a written agreement between parents setting out how they will share parental duties and responsibilities over their child.

Under Kenyan law, parental responsibility includes the duties, rights, powers and authority that a parent has in relation to the child and the child’s property. These responsibilities include providing food, shelter, clothing, medical care, education, guidance, protection, moral upbringing and general welfare.

A PRA is especially useful where:

• The parents are not married to each other;
• The parents have separated;
• The parents live in different homes;
• One parent wants a structured visitation plan;
• The parents want to agree on school fees, medical expenses and maintenance;
• There is conflict over travel, relocation or access to the child;
• The parents want to avoid repeated disputes in the Children’s Court.

Legal basis for Parental Responsibility Agreements in Kenya

Parental Responsibility Agreements are recognised under the Children Act, 2022.

The Act provides that parents who are not married to each other may enter int

o a parental responsibility agreement in the prescribed form. The agreement should clearly designate each parent’s responsibilities towards the child and must always be guided by the best interests of the child.

The law also recognises that both parents have parental responsibility over the child on an equal basis. This means that neither the mother nor the father has an automatic superior claim over the child simply because of gender or marital status.

The guiding principle is always this: what arrangement best protects the child’s welfare, stability, safety, education, health and emotional development?

What should a Parental Responsibility Agreement include?

A good PRA should be detailed enough to prevent confusion, but practical enough for both parents to follow. At minimum, it should address the following:

1. Where the child will live

The agreement should state the child’s primary residence and whether the child will live mainly with one parent or spend structured time with both parents.

This part may cover:

• The child’s weekday residence;
• Weekend arrangements;
• School-term arrangements;
• Holiday residence;
• Special arrangements during illness, exams or emergencies.

2. Access and visitation

The agreement should clearly state when and how the non-resident parent will spend time with the child.

This may include:

• Weekday visits;
• Weekend access;
• Overnight access;
• Public holiday access;
• School holiday access;
• Video calls and phone calls;
• Pick-up and drop-off arrangements;
• Who bears transport costs.

A vague clause such as “the father may visit when available” or “the mother will allow reasonable access” often causes future conflict. It is better to have a clear and predictable schedule.

3. Education and school fees

Parents should agree on the child’s school, school fees, school-related costs and decision-making process.

This section may cover:

• Who pays school fees;
• How school fees are shared;
• Payment deadlines;
• School transport;
• Uniforms and books;
• School trips;
• Extra tuition;
• Who attends school meetings;
• Whether a parent must be consulted before the child changes schools.

4. Medical care and health insurance

The agreement should state how the child’s healthcare will be handled.

It may include:

• Who provides medical insurance;
• How uninsured medical expenses are shared;
• Which hospital or clinic the child attends;
• Who makes emergency medical decisions;
• How parents notify each other of illness;
• Responsibility for immunisation, therapy, dental care and specialist treatment.

5. Child maintenance and daily expenses

A PRA should clearly set out each parent’s financial contribution.

Maintenance may include:

• Food;
• Rent or housing contribution;
• Clothing;
• School fees;
• Medical expenses;
• Transport;
• Domestic help where necessary;
• Entertainment;
• Extra-curricular activities;
• Special needs support.

The agreement should state the amount payable, payment date, mode of payment and whether the amount will be reviewed periodically.

6. Religious, cultural and moral upbringing

Parents may agree on the child’s religious upbringing, moral guidance and cultural practices, provided the arrangements are not harmful to the child.

This is particularly useful where parents come from different religious, cultural or family backgrounds.

7. Travel within and outside Kenya

Travel is one of the most common areas of conflict in co-parenting.

The agreement should cover:

• Whether either parent may travel with the child within Kenya;
• Whether written consent is required for international travel;
• Passport custody;
• Visa applications;
• Travel itinerary sharing;
• Emergency travel;
• Return dates;
• What happens if one parent unreasonably withholds consent.

For international travel, it is advisable to have written consent and supporting documents to avoid disputes at immigration or with foreign authorities.

8. Relocation or change of residence

If either parent intends to relocate, the agreement should require advance written notice.

The notice should include:

• New residential address;
• Reason for relocation;
• Effect on school or access;
• Proposed revised parenting schedule;
• Emergency contact information.

A parent should not secretly relocate with the child in a way that frustrates the other parent’s lawful access or parental responsibility.

9. Decision-making

The agreement should state which decisions must be made jointly.

These may include:

• Change of school;
• Major medical treatment;
• Religious upbringing;
• Passport application;
• International travel;
• Change of name;
• Relocation;
• Major extra-curricular commitments;
• Counselling or therapy.

Day-to-day decisions can be made by the parent who has the child at the relevant time, unless the agreement says otherwise.

10. Dispute resolution

A strong PRA should provide a calm process for resolving disagreements before rushing to court.

This may include:

• Direct discussion between the parents;
• Mediation;
• Consultation with an advocate;
• Referral to a children officer;
• Court intervention where necessary.

The aim is to reduce unnecessary hostility and protect the child from being used as a tool in parental conflict.

Is a Parental Responsibility Agreement enforceable in Kenya?

Yes, a Parental Responsibility Agreement can have legal effect. However, for stronger enforceability, parents may have the agreement adopted by the Children’s Court as an order of the court.

Once adopted by the court, it becomes easier to enforce if one parent breaches the agreed terms.

A parent who frustrates access, abducts the child, hides the child, or prevents the other parent from exercising lawful parental responsibility may face legal consequences under the Children Act, 2022.

Can a Parental Responsibility Agreement be changed?

Yes. A PRA can be reviewed or varied where circumstances change. For example:

• The child grows older and needs a different schedule;
• One parent relocates;
• A parent loses employment or experiences financial change;
• The child changes school;
• The child develops medical or special needs;
• The existing arrangement is no longer practical;
• The arrangement is no longer in the child’s best interests.

However, where the agreement has been adopted by the court, it should not simply be ignored. The proper approach is to apply to court for variation, review or termination.

Important Kenyan case law on Parental Responsibility Agreements

Mutheu Agatha Khimulu v Raheem Mehdi Aziz Azad & 4 others

This is one of the most important Kenyan cases on parental responsibility agreements and child custody.

In this case, the Supreme Court of Kenya emphasised that the best interests of the child are the key consideration in matters involving children. The Court also confirmed that parental responsibility is an ongoing obligation and cannot simply be extinguished because parents are in conflict.

The Court recognised the importance of Parental Responsibility Agreements and affirmed that such agreements remain relevant unless properly varied or set aside by the court.

The case is important because it shows that a PRA is not a casual document. It can carry significant legal weight, especially where it has been relied upon by the parents and affects the child’s welfare.

SMM v ANK

In SMM v ANK, the High Court considered the welfare of children in a custody dispute and emphasised that the modern approach must begin with the best interests of the child. The court also recognised that both parents have an important role in the child’s life.

This case is useful because it shows that Kenyan courts are moving away from rigid assumptions and focusing more on the child’s actual welfare, emotional stability, parental involvement and practical care arrangements.

Why these cases matter

These cases show that Kenyan courts do not treat children as property of either parent. The court will look at the whole picture, including:

• The child’s age and maturity;
• The child’s wishes, where appropriate;
• Each parent’s conduct;
• The child’s emotional and physical needs;
• The home environment;
• The ability of each parent to provide care;
• The need to preserve a relationship with both parents;
• The history of each parent’s involvement;
• Any risk of harm, neglect or abuse;
• The totality of the circumstances.

Difference between parental responsibility, custody and guardianship

These terms are often confused, but they do not mean the same thing.

Parental responsibility

This refers to the legal duties and rights of a parent towards the child. It includes care, maintenance, education, protection, guidance and decision-making.

Custody

Custody deals with the child’s living arrangements and care. It may involve legal custody, actual custody, joint custody or sole custody depending on the circumstances.

Guardianship

Guardianship usually refers to a person appointed to assume parental responsibility over a child, often upon the death of a parent or through a court process.

A Parental Responsibility Agreement does not necessarily remove custody from one parent. Rather, it helps parents structure how their responsibilities will be exercised.

Checklist: What you need before preparing a Parental Responsibility Agreement in Kenya

Before meeting an advocate, prepare the following:

Parent details

• Full names of both parents;
• National ID or passport numbers;
• KRA PINs, where necessary;
• Phone numbers;
• Email addresses;
• Physical addresses;
• Postal addresses, where applicable.

Child details

• Full name of the child;
• Date of birth;
• Birth certificate;
• Current school;
• Medical details, if relevant;
• Passport details, if the child has a passport.

Current care arrangement

• Where the child currently lives;
• Who pays school fees;
• Who pays medical costs;
• Current visitation arrangement;
• Any existing verbal agreement;
• Any previous court order or pending case.

Financial information

• School fees structure;
• Medical insurance details;
• Monthly maintenance needs;
• Transport costs;
• Extra-curricular activity costs;
• Special needs expenses, if any.

Proposed parenting plan

• Weekday schedule;
• Weekend schedule;
• Holiday schedule;
• Communication schedule;
• Pick-up and drop-off arrangements;
• Rules on travel;
• Emergency contact procedure.

Supporting documents

• Child’s birth certificate;
• Copies of parents’ IDs or passports;
• School fee structure;
• Medical insurance card;
• Existing court orders, if any;
• Any previous written agreement;
• Passport or travel documents, if relevant.

Common mistakes to avoid when preparing a PRA

1. Making the agreement too vague

Words like “reasonable access” sound polite but often create disputes. Be specific.

2. Ignoring school holidays

Many co-parenting disputes arise during Christmas, Easter, mid-term and long holidays. Address holidays clearly. A PRA should define who will spend time with the Child during the parent’s birthdays, Mother’s Day or Father’s Day. 

3. Leaving out travel consent

If one parent may travel with the child outside Kenya, the agreement should state how consent will be given.

4. Not addressing medical emergencies

The agreement should allow quick decision-making during medical emergencies while requiring prompt notification to the other parent.

5. Using the child to punish the other parent

Access to a child should not be used as revenge for unpaid maintenance, relationship conflict or personal disagreement.

6. Failing to provide a review mechanism

Children grow, schedules change and financial circumstances shift. A good agreement should provide for periodic review.

Do you need a lawyer for a Parental Responsibility Agreement?

It is advisable to use an advocate when preparing a PRA. A lawyer will help ensure that the agreement:

• Complies with the Children Act, 2022;
• Protects the best interests of the child;
• Is clear and practical;
• Avoids illegal or unenforceable clauses;
• Covers maintenance, custody, visitation and travel properly;
• Can be adopted by the court where necessary;
• Reduces future disputes.

A poorly drafted agreement can create more conflict than it solves.

Can unmarried parents enter into a PRA?

Yes. In fact, Parental Responsibility Agreements are particularly useful for parents who are not married to each other. The Children Act, 2022 recognizes that both parents may agree on how to share parental responsibilities in the best interests of the child.

The child’s right to parental care and protection does not depend on whether the parents are married.

Can a father have parental responsibility if he was not married to the mother?

Yes. Under the current legal framework, both parents have parental responsibility on an equal basis, whether the child was born within or outside marriage. The father’s responsibility is not limited to paying school fees or maintenance. It may also include emotional support, guidance, access, healthcare decisions and participation in the child’s upbringing.

What happens if one parent breaches the agreement?

If one parent breaches the PRA, the other parent may seek legal intervention. Depending on the circumstances, the court may:

• Enforce the agreement;
• Vary the agreement;
• Issue custody or access directions;
• Make maintenance orders;
• Penalise conduct that obstructs access or parental responsibility;
• Make any order necessary to protect the child’s best interests.

If the breach involves abduction, hiding the child, denying lawful access or relocating without notice, the matter should be addressed urgently.

Frequently Asked Questions

1. What is a Parental Responsibility Agreement in Kenya?

It is a written agreement between parents setting out how they will share parental duties such as custody, visitation, education, maintenance, healthcare, travel and decision-making for their child.

2. Is a Parental Responsibility Agreement legally binding?

Yes, it can have legal effect. For stronger enforceability, the agreement may be adopted by the Children’s Court as an order of the court.

3. Can parents prepare a PRA without going to court?

Yes. Parents can agree privately and have the agreement drafted by an advocate. However, if they want stronger enforcement, they may apply to have it adopted by the court.

4. Can a PRA decide child maintenance?

Yes. A PRA can set out how parents will contribute to school fees, medical care, housing, food, clothing, transport and other child-related expenses.

5. Can a PRA allow one parent to travel with the child outside Kenya?

Yes, but the agreement should clearly state the consent process, travel notice period, passport arrangements, destination, itinerary and return date.

6. Can a mother deny the father access because he has not paid maintenance?

Generally, access and maintenance should not be used as weapons against each other. If a parent is not paying maintenance, the proper approach is to seek legal enforcement rather than unlawfully denying access, unless there are safety concerns.

7. Can a father refuse to pay maintenance because he is being denied access?

No. A child’s right to maintenance should not be defeated by conflict between the parents. A parent who is denied access should seek legal remedies, but the duty to maintain the child remains.

8. Can a Parental Responsibility Agreement be changed later?

Yes. It can be varied where circumstances change or where the current arrangement no longer serves the child’s best interests.

9. What is the difference between custody and parental responsibility?

Custody concerns the child’s living and care arrangements. Parental responsibility is broader and includes the legal duties and rights of a parent towards the child, including maintenance, protection, education, healthcare and guidance.

10. What is the most important consideration in a PRA?

The child’s best interests. Every clause should protect the child’s welfare, stability, safety, education, health and emotional development.