Insights on Parental Responsibility
Alpha Rachier2022, Insights on Parental Responsibility in Kenya
Alice sued John on the grounds that sometime in 2006 Alice met John with whom she fashioned a romantic relationship. Thereafter in 2008, John relocated to Europe for employment. In 2009 Alice had a baby with another man while John was away in Europe. That, nevertheless, John supported the child by sending money via MPESA intended for rent and school fees. Sometime later they broke up hence her claim that John had assumed parental responsibility of the child and sought to move the court to make a declaration that John was duty bound to discharge his parental responsibility towards the minor’s maintenance, this despite the breakup. The above was the scenario akin to the case of SWK v RNK 2019 (Civil Appeal 47 of 2018). I recon what rings in our minds right now is the query: What is parental responsibility and who bares it? Okay, join me in this journey as we attempt to debunk it
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Sixteen arguments in support of an equal parental responsibility presumption in contested child custody are presented from a child-focused perspective, and clinical and empirical evidence in support of each argument is contrasted to the conflicting evidence. These arguments are made in support of the model equal parental responsibility presumption outlined in Volume 39, Number 5, of The American Journal of Family Therapy.
Parental Responsibility towards a Child in Kenya
1.2 GENERAL BACKGROUND The enactment of the Children’s Act is no doubt a significant step in Kenya’s attempts at complying with the obligation under the Convention on the Rights of the Child (CRC) and African Charter on the Rights and Welfare of the Child (ACRWC) on the duty of State parties to undertake a comprehensive review of all domestic legislation and policy to ensure compliance with the norms in these treaties. UNICEF’s objective is to push for the safeguarding of the rights of the children. It is also committed to help them meet the basic needs to ensure that children develop to their full potential. UNICEF does this through the provisions and principles set by the Convention on the Rights of the Child. The convention on the Rights of the Children is universally agreed and the standards set by the convention are non-negotiable and every state is required to adhere to those obligations. These standards which are also called human rights place minimum entitlements of children and their freedoms that are not subject to any limitations. Every state government is required to respect this entitlements and freedoms. The Convention on Human Rights has founded these entitlements and freedoms on respect for the dignity and value of every child, not considering their race, color, gender, language, religion, opinions, origins, wealth, birth status or ability. The standards are therefore applicable to every child universally. These rights create a duty on both governments and persons not to violate on the parallel the said rights. CRC standards are of such a nature that they are both interdependent and indivisible. It becomes impossible to ensure some rights without or at the expense of other rights. The Children’s Act is now the primary Kenyan law which sets forth legal obligations subject to the recommendation by the CRC document of all duty bearers - the government, parents, and civil society-, to respect, protect and fulfil the rights of children. It has been hailed as a ‘landmark’ by virtue of the fact that it is the first example of Kenyan legislation which gives effect to an international human rights treaty to which the country is a party. The Act provides for a comprehensive catalogue of children’s rights in addition to a provision on enforcement of these rights. The Act further establishes institutional mechanisms for the implementation of children rights which is comprised of government institutions, courts and a National Council for Children’s Services. The concept of parental responsibility and care falls within this rights. Despite its progressive nature, the Act falls short of fully complying with international law standards on the rights of the child on a number of issues; In practice, the reality of enactment of the Children Act varies, hence revealing both prospects and challenges to the implementation process. This paper argues that Parental responsibility is a critical right that is embodied in the Children’s Act Section 23 but it lacks proper implementation within the Kenyan jurisdiction. 1.3 MEANING AND SCOPE The children’s Act Section 23 provides for the definition of parental responsibility 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 of the parent have been broken down to mean the power to make important decisions in relation to a child. This includes: a) Determining the religion the child should be brought up with. Where there is a mixed cultural background this should include exposure to the religions of all those with Parental Responsibility until the child can reach an age where he/she can make their own decision on this. b) Determining the child’s education and where the child goes to school. c) Choosing, registering or changing the child’s name. d) Appointing a child’s guardian in the event of the death of a parent. e) Consenting to a child’s operation or certain medical treatment. f) Accessing a child's medical records. g) Consenting to taking the child abroad for holidays or extended stays. h) Representing the child in legal proceedings. Parental responsibility is automatic to both biological parents regardless of their marital status. Article 53(1) (e) of the Constitution is clear on parental responsibility and it stipulates that “Every child has the right to parental care and protection including parental responsibility of the mother and father to provide for the child whether they are married or not,” Article 53(1) (e) of the Constitution and Section 23(1) of the Children Act provides for parental responsibility which must never be abdicated. The Constitution underlies the importance of parental duties, which include provision of adequate diet, shelter, clothing, medical care, education and guidance. A person with Parental Responsibility cannot transfer his or her responsibility to another person. As one leading commentator has observed parental responsibility can represent two ideas one is that parents must behave dutifully towards their children and the other that responsibility for a child care belongs to parents not the state. The first idea is well summed up by Lord Mackay LC, who said “while introducing the concept of parental responsibility that emphasises that the days when a child should be regarded as a possession of his or her parents, indeed when in the past they had a right to his services and to sue on their loss are now buried forever. The overwhelming purpose of parenthood is the responsibility for caring for and raising the child to be a properly developed adult both physically and morally” This comment reflects in the landmark decision held in Gillick Vs West Norfolk and Wisbech Area Health Authority in which Lords Fraser and Scarman emphasised that parental power to control a child exists not for the benefit of the parent but for the benefit of the child. Parental Responsibility can be shared with another person, but not completely transferred. It is possible to delegate the responsibility of looking after a child to a married or unmarried partner, child minder, teacher, friend or relative, but the person with Parental Responsibility is still liable and responsible to ensure that proper arrangements are made for the child. The term 'parental responsibility' refers to the key responsibilities that parents have in relation to their children's long term needs, such as matters concerning their health, education and religion. There is a presumption that these responsibilities shall be equally shared between parents. However, this does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence. Temporary carers will not have Parental Responsibility but may do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child’s welfare. The law treats Parental Responsibility and child maintenance as being completely separate. An unmarried father who does not have Parental Responsibility still has a duty towards his child to provide child support maintenance. An unmarried father without Parental Responsibility will also still have some rights, for example: a) he has an automatic right to apply to the court for certain court orders in respect to his child; and b) if the child is in Local Authority care, he has a right to have reasonable contact with his child. Parental responsibility vests on all the parents once a child is born. The Children's Act 2001 provides for parental responsibility of every parent under Section 23 which provides 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 and Section 25 which provides for what happens when the parents are not married . When certain decisions have to be taken about a child, all those with Parental Responsibility for the child are allowed to have a say in that decision. The decision will have to be about the upbringing of the child. Day to day decisions should be taken by the resident parent or the person with whom the child lives without interference from other Parental Responsibility holders. Parental responsibility is a key principle and key concept in child law and often as a country these rights are often violated either through knowingly or unknowingly. It permeates from the Children Act. This Act provides the statutory framework around which most of child law is based, and is the bedrock in which burgeoning ideas and principles relating to the upbringing of children are firmly rooted. Some legal scholars say legislation that attempts to define parent behaviour is worded vaguely. This vagueness makes it difficult for ordinary citizens to understand what type of behaviour falls within the purview of the law on parental responsibility.
A Model Equal Parental Responsibility Presumption in Contested Child Custody
The American Journal of Family Therapy, 2011
INSIGHTS ON PARENTAL RESPONSIBILITY
By Alpha Rachier*
Alice sued John on the grounds that sometime in 2006 Alice met John with whom she fashioned a romantic relationship. Thereafter in 2008, John relocated to Europe for employment. In 2009 Alice had a baby with another man while John was away in Europe. That, nevertheless, John supported the child by sending money via MPESA intended for rent and school fees. Sometime later they broke up hence her claim that John had assumed parental responsibility of the child and sought to move the court to make a declaration that John was duty bound to discharge his parental responsibility towards the minor’s maintenance, this despite the breakup.
The above was the scenario akin to the case of SWK v RNK 2019 (Civil Appeal 47 of 2018). I recon what rings in our minds right now is the query: What is parental responsibility and who bares it? Okay, join me in this journey as we attempt to debunk it.
The laws of Kenya define a child as a person who has not attained the age of eighteen years.
*The author is a LLB candite at Africa Nazarene University, Nairobi Kenya.
Laws of Kenya, Children Act 2012. The Constitution provides that every child has the right to parental care and protection which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.
Constitution of Kenya 2010; Art. 53(1)(e).
It is of importance to note that in matters concerning a child, it is a constitutional imperative to consider that which caters to the best interests of the child. To that extent, Article 53(1) of the Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child.
A child may be born before, during or after marriage; he may also be born when marriage is or was not contemplated at all, yet he still requires parental responsibility; someone has to bear this burden. In view of the varied circumstances under which a child may be born, the assumption of parental responsibility is not left to doubt or speculation; it is equally defined in the Children Act.
Section 23 of Children Act stipulates that parental responsibility means 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 changing capabilities of the child.
The section goes on to enumerate the duties referred to in the foregoing definition to include but not limited to the duty to maintain the child and in particular to provide him with adequate diet, shelter, clothing, medical care including immunisation; education and guidance; and the duty to protect the child from neglect, discrimination and abuse.
Parental obligation duties also include certain rights granted to the parent which include the right to give parental guidance in religious, moral, social, cultural and other values; the right to determine the name of the child; the right to appoint a guardian in respect of the child; the right to receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child; the right to arrange or restrict the emigration of the child from Kenya; and upon the death of the child, the right to arrange for the burial or cremation of the child.
Ibid, see 1; Section 23(2)(c)
It is apparent from the foregoing that the definition of ‘parental responsibility’ is nothing more than a gamut of responsibilities or obligations which a parent or parents have towards their child, thus we ask, who has parental responsibility? In the same berth, I will attempt to answer this lingering enquiry.
Turning to Section 24 of the Children Act, we find various scenarios in which parental responsibility is accrued. The law states that in the event where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a greater right or claim against the other in exercise of such parental responsibility.
Reading further into the Section we uncover that where a child’s dad and mom were not married to each other at the time of the child’s birth and have afterward married each other, they shall have parental responsibility for the child and neither shall have a larger right or privilege against the other in the application of such parental responsibility.
From the foregoing instances we can deduce that both parents have joint obligations towards their offspring, and none is superior or inferior to the other. It is also evident that more than one person may have parental responsibility for the same child at the same time.
Ibid, see 1; Section 24(4) Subsequently in the matter of MKN V. JC & Children Court Kericho [2019] eKLR, the Court persuasively and rightly held:
“…The parental responsibility is equal between the two parents. The parental responsibility does not cease because of separation or divorce. However, circumstances and means of parents change, and the best course of action is either for the two parents to agree or go to the Children’s court and report any charged circumstances for decisions….”
The above holding by the by the High Court of Kenya at Kericho compliments Section 24(5) of the Children Act which stipulates that a person who has parental responsibility for a child at any time shall not cease to have that responsibility for the child.
A conundrum emerges in a situation where the parents, during the child’s birth, were not married and remain unwedded. How does the law apply? The Children Act provides that where a child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other the mother shall initially have parental responsibility. What about the father you ask?
The legislation stipulates that the father may acquire parental responsibility by making an application to the court which in turn might grant orders that bequeath him parental responsibility. Alternatively, the father and mother may by agreement known as a “parental responsibility agreement”, provide for the father to have parental responsibility for the child.
Ibid, see 1; Section 25(1)(a)(b) A parental responsibility agreement may only be terminated by an order of the court made on application by either; any person who has parental responsibility for the child; or the child with the permission of the court.
Ibid, See 1; Section 26(2) It is my judgmental call that sharing of parental responsibility for children should not be arbitrary. It should be well laid out by the parties.
Subsequently in the circumstance that the mother and farther were not married to each other at the time of the child’s birth but have succeeding to such birth lived together for a period or periods which sum to not less than twelve months, or where the father has recognized parenthood of the child or has sustained the child, he shall have attained parental responsibility for the child, notwithstanding that a parental responsibility agreement has not been made between the mother and father of the child. As stipulated in Section 25 of the Children Act.
What happens in the unfortunate event that a parent passes on? The Children Act stipulates that Parental responsibility is transferred upon the death of either one or both parents. Where one parent dies, parental responsibility is transmitted to the surviving parent, either alone or together with a testamentary guardian.
Ibid, See 1; Section 27(1)(a)
A testamentary guardian is a person appointed by a will of the deceased parent. Where both parents die, parental responsibility is transferred to the testamentary guardian. If there is no testamentary guardian, then parental responsibility can pass to a guardian appointed by the court or a relative who is fit to take care of the child.
In concluding it is notable that Parental responsibility may possibly be prolonged beyond the eighteenth centennial if the court is satisfied that there are sufficient explanation to merit the extension. An application for extension can be made by a parent, a relative of a child, any person who has parental responsibility for the child, the Director of Children’s Services or by the child himself.
Aside from the Constitution and the Children Act cited above, other legal frameworks worthy of mention are the United Nations Convention on the rights of the Child which provides that states that State parties must ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child and must further recognize that parents have the primary responsibility for bringing up the child.Common responsibilities mean that equal powers, rights and duties of the parties.
UN General Assembly, Convention on the Rights of the Child, 20 November 1989; Article 18. The initial thirty one Articles of the African Charter on the Rights and Welfare of the Child are committed to the rights and wellbeing of the child. They subsequently contain provisions as to state obligations and children’s rights and responsibilities.
Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990)
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