Right to be Protected from Neglect; Parents Duty Over Minors


In the recent times, cases of child neglect by parents have been on the rise. Whereas both the moral laws of the society as well as the national laws places an undisputable recognizable parental responsibilities on all parents, cases of child neglect seem to be on the rise.

Article 53 of the Constitution of Kenya 2010 encapsulates the unalienable basic rights of a child. This Article provides inter alia that;

(1) Every child has the right––

  1. to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;
  2. 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; and

2) A child’s best interests are of paramount importance in every matter    concerning the child.”

Though  the above cited provision is contained in the Constitution which was  promulgated in 2010,  the same provision have been in  the preceding laws  including the Children Act Cap 141 of 2001 which is the primary law on matters relating to children.

The law obligates the mother and the father of a child to meet the child’s basic needs. The most basic needs have been recognized as:

  1. Accommodation
  2. Food
  3. Clothing
  4. Education and educational related needs
  5. Medical among others

As captured under Article 53 of the Constitution, whether the parents of the child are living together or not, they each have a responsibility to provide for their child. We have both civil and criminal sanctions for those who are found guilty of abdicating their parental responsibilities. The Children Act provides for mechanism for the enforcement of the Children rights.

Parental responsibility is not only vested on the biological parents of a child. Any person who either under the law or through any other means assumes parental responsibility over a minor, he /she is charged with the responsibility of meeting the minor’s needs.

For instance, if one has been appointed as a guardian or as an adoptive parent over a minor, that person has a legal duty to meet the needs of the minors.

The same rules applies to if a man marries a woman  who had begotten a child or children out of wedlock and takes in their mother as wife together with the children and starts meeting their  needs later he cannot be heard to  say that  he has not  parental responsibility over the minors.

Maintenance  Vis-À-Vis Custody.
Many a times men have been heard to say that they cannot provide for a child they are not living with.  This is mainly informed by the patriarchal nature of the African Communities, where children belong to the man’s family. It is prudent to understand that the rules on custody are distinct from the rules of maintenance. Under the rules on custody of minors there are two key types of custody;

  1. Legal Custody
  2. Actual custody

Under the children Act, legal custody has been defined as; “the parental rights and duties in relation to possession of a child as are conferred upon a person by a custody order”. Legal custody entails the right of a parent to decide on matters to do with education that is where the child schools, religion that is to which faith the child will profess, culture among others.

On the other hand, actual custody has been defined under the Children Act as the actual possession of a child, whether or not that possession is shared with one or more persons.”  This relates more to do with who resides with the minor.  This is the person charged with the responsibility of day care of the minor(s).  If (s)he is not available to  discharge his duty of care of the minor(s), (s)he would be required to hire a second hand to assist.

The person who has not been granted actual custody will many a times be granted access right. This at many a times is coined in terms of the visitation rights of the minor(s) over the parent who has not been granted actual custody.  The access rights will vary depending on the circumstances of each given case.

When granting custody orders, the Court is usually guided by the minor(s)’ best interests. The Children Act provides the following as the key factors to be considered in determining the person to be granted custody;

  1. the conduct and wishes of the parent or guardian of the child;
  2.  the ascertainable wishes of the relatives of the child;
  3. the ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his home in the last three years preceding the application;
  4. the ascertainable wishes of the child;
  5. whether the child has suffered any harm or is likely to suffer any harm if the order is not made;
  6. the customs of the community to which the child belongs;
  7. the religious persuasion of the child;
  8. whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether those orders remain in force;
  9. the circumstances of any sibling of the child concerned, and of any other children of the home, if any;
  10. the best interest of the child

 

In line with these legal requirements, the Courts have always held that the actual custody of a minor of tender years will always be vested on the mother unless there are exceptional circumstances which warrant divesting the mother of actual custody. A child of tender years has been defined as any child under the age of 12 years.

The fact that a parent has been granted actual custody of the minor(s) does not translate to that parent taking care of all the needs of the minors.  The minor(s) needs will always be distributed between the parents. For instance, the Court can order that the person having actual custody to provide food whereas the other meets the educational needs of the minor(s).

When determining the issue of maintenance, the Courts have to take note of the dynamic needs of the minors as they grow. For instance, a  minor below the age of 5 years will have demanding nutritional and medical needs contrasted with a minor  in high school whose educational needs will perhaps be more demanding financially.

It is also noteworthy that in determining the issue of up keep provisions, the Courts will factor in the income of each parent. A parent cannot be compelled to provide for the minor way above his financial muscles. At the same time, the courts will endeavor to issue orders for the upkeep of the minors which are such that even if that parent is not living with the minor(s), the minor(s) will live a life commensurate to the income of each parent.

ENFORCEMENT OF PARENTAL DUTIES.
If a parent neglects his/her duty, he may be faced with both criminal and civil sanctions. Criminal sanctions will be meted in a case whereby the neglectful parent is reported to the Police, arrested, arraigned in Court where if found guilty, (s)he is convicted and sentenced.

However, many a times complaints against slack parents will be handled using the civil laws regime. Any aggrieved minor or parent or concerned person can make a report to the Director of Children Services who will always take up  the matter and summons the concerned parties with an aim of settling the matter using Alternative Dispute Resolution Mechanisms. Most Directors will apply mediation tactics in a bid to resolve the outstanding dispute.

Nevertheless, where parties are unable to reach settlement they are usually referred to Court. Taking note that the issues of custody and maintenance are family based, it is always advisable to have the parties explore out of Court settlement.  This entails the use of Mediators or arbitrators. The Court should always be the last resort.

Once a matter is referred to Court and the Court issues the requisite orders, all parties have a mandatory legal obligation to comply with orders of the Court. Where a party defaults on a financial order, he can have the orders issued against him enforced in one of the following ways;

  1. Order that any arrears in respect of any maintenance monies or contribution monies as the case may be, be paid forthwith, or by installments or within such other period as shall be specified by the court;
  2. Order the remission of the arrears, but the court shall not make an order of this nature without prior notice to the child, or the person or institution as the case may be, in favour of whom the maintenance order or contribution order has been made and without allowing them a reasonable opportunity to make representations;
  3. Issue a warrant for distress on the respondent’s property forthwith or postpone the issue of the warrant until such time as the court may direct, or on such conditions as the court may deem fit and order the attachment of the respondent’s earnings including any pension payable to the defaulter
  4. Order the detention, attachment, preservation or inspection of any property of the respondent and, for all or any of the purposes aforesaid, authorise such person, as the court may deem fit, to enter upon any land or building in which the respondent has an interest whether in the possession or control of the defaulter or not;
  5. Subject to the rights of a bona fide purchaser for value without notice set aside any disposition of any property belonging to the respondent from which any income has occurred and on an application, the court may make orders for the re-sale of the said property to any person and may direct the proceeds of such sale to be applied to the settlement of any arrears of maintenance monies and to the payment of future maintenance monies for the child concerned;
  6. Restrain by way of an injunction the disposition, wastage or damage of any property belonging to the respondent.

In conclusion, children rights are paramount. Minors need protection. They have to be protected.

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