Children Act No 8of 2001 - as Plain Text by MWakili
LAWS OF KENYA CHILDREN ACT CHAPTER 141 Revised Edition 2012 [2010] Published by the National Council for Law Reporting with the Authority of the Attorney-General www.kenyalaw.org [Rev.
2012] CAP.
141 Children CHAPTER 141 CHILDREN ACT ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1.
Short title and commencement.
2.
Interpretation.
PART II SAFEGUARDS FOR THE RIGHTS AND WELFARE OF THE CHILD 3.
Realisation of the rights of the child.
4.
Survival and best interests of the child.
5.
Non-discrimination.
6.
Right to parental care.
7.
Right to education.
8.
Right to religious education.
9.
Right to health care.
10.
Protection from child labour and armed conflict.
11.
Name and nationality.
12.
Disabled child.
13.
Protection from abuse, etc.
14.
Protection from harmful cultural rites, etc.
15.
Protection from sexual exploitation.
16.
Protection from drugs.
17.
Leisure and recreation.
18.
Torture and deprivation of liberty.
19.
Right to privacy.
20.
Penalties.
21.
Duties and responsibilities of a child.
22.
Enforcement of rights.
PART III PARENTAL RESPONSIBILITY 23.
Definition of parental responsibility.
24.
Who has parental responsibility.
25.
Acquisition of parental responsibility by father.
26.
Parental responsibility agreement, etc.
27.
Transmission of parental responsibility.
28.
Extension of responsibility beyond eighteenth birthday.
29.
Regulations by Chief Justice.
PART IV ADMINISTRATION OF CHILDRENS SERVICES The National Council for Childrens Services 30.
Establishment of National Council for Childrens Services.
31.
Composition of Council.
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141 [Rev.
2012] Children Section 32.
Functions of the Council.
33.
Power of the Council.
34.
Co-option and committees.
35.
Regulations by the Council.
36.
Expenses.
The Director of Childrens Services and Childrens Officers 37.
Appointment of Director, Deputy Directors and Childrens Officers.
38.
Functions of Director.
39.
Penalty for obstruction.
The Role of Local Authorities 40.
The role of local authorities.
41.
Appointed local authorities.
42.
Local authority welfare schemes.
43.
Delegation of powers and duties by appointed local authorities.
44.
Delegation of functions of county councils.
45.
Delegation to charitable childrens institution.
46.
Powers of local authorities to incur expenditure in temporary care.
PART V CHILDRENS INSTITUTIONS Rehabilitation Schools and Remand Homes 47.
Establishment of rehabilitation schools.
48.
Separate sections in the rehabilitation schools.
49.
Obligation of managers.
50.
Establishment of childrens remand homes.
51.
Supervision of rehabilitation schools and childrens remand homes.
52.
Leave of absence.
53.
Revocation of childrens committal order.
54.
Transfers and supervision after release.
55.
Treatment of absconders and children of difficult character.
56.
Removal to health institution.
57.
Authority for confinement in childrens remand homes, rehabilitation school and hospital.
Charitable Childrens Institutions 58.
Definition of a charitable childrens institution.
59.
Exceptions.
60.
Proof of registration.
61.
Institution set up by a person or unincorporated body of persons.
62.
Criteria for approval of programmes.
63.
Reception of children in a charitable childrens institution.
64.
Duty to maintain a child in a charitable childrens institution.
65.
Director to monitor progress of children.
66.
Appointment and powers of approved officers.
67.
Inspection of charitable childrens institutions.
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141 Children Section 68.
Inspection committees.
69.
Duty to notify the Area Advisory Council.
70.
Review of programme.
71.
Cancellation of a programme.
72.
Regulations.
PART VI CHILDRENS COURTS 73.
Jurisdiction of Childrens Courts.
74.
Sittings of Childrens Court.
75.
Power to clear court.
76.
General principles with regard to proceedings in Childrens Court.
77.
Legal aid.
78.
Reports.
79.
Appointment of guardian ad litem.
80.
Appeals.
PART VII CUSTODY AND MAINTENANCE 81.
Meaning of custody, care and control.
82.
Custody.
83.
Principles to be applied in making custody order.
84.
Restriction on removal of a child where applicant has provided home for three years.
85.
Return of child taken away in breach of section 80.
86.
Disputes between joint custodians.
87.
Revocation of custody order.
88.
Interim custody orders.
89.
Agreement not to be invalid by reason of giving custody to mother.
Maintenance of Children 90.
Joint maintenance of children.
91.
Power to make maintenance order.
92.
Maintenance during matrimonial proceedings.
93.
Financial provisions.
94.
Financial provisions by step-parents and father of child born out of wedlock.
95.
Power to order maintenance monies to be paid to person other than the applicant.
96.
Duration of financial provisions.
97.
Interim orders.
98.
Other maintenance provisions.
99.
Power to impose conditions and to vary order.
100.
Power to vary maintenance agreements.
Enforcement of Maintenance Orders and Contribution Orders 101.
Enforcement of maintenance orders and contribution orders.
PART VIII GUARDIANSHIP 102.
Appointment of guardian.
103.
Rights of surviving parent as to guardianship and power of court.
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141 [Rev.
2012] Children Section 104.
Appointment of testamentary guardian.
105.
Appointment of guardian by the court.
106.
Guardians revocation and disclaimer.
107.
Extension of appointment of guardian beyond childs eighteenth birthday.
108.
Disputes between guardians.
109.
Powers of guardian.
110.
Neglect or misapplication of assets by guardians of the estate of the child.
111.
Offence by guardians of the estate of a child.
112.
Rules.
PART IX JUDICIAL ORDERS FOR THE PROTECTION OF CHILDREN 113.
Power of court to make orders in certain proceedings.
114.
Orders which court may make.
115.
Power of arrest.
116.
Penalty.
117.
Review, etc., of order.
PART X CHILDREN IN NEED OF CARE AND PROTECTION 118.
Jurisdiction of the court.
119.
When a child is in need of care and protection.
120.
Proceedings in respect of children in need of care and protection.
121.
Medical care.
122.
Determination as to childs home, etc.
123.
Parent or guardian to be heard in any application.
124.
Power of Director to take over application.
125.
Power of court in respect of children in need of care and protection.
126.
Application of trusts for maintenance of children.
127.
Penalty for cruelty to and neglect of children.
128.
Warrants for search of children.
129.
Arrest without warrant.
Supervision and Care Orders 130.
Supervision order.
131.
Preliminary inquiries.
132.
Care order and grounds thereof.
133.
Arrangements for access to children in care.
134.
Contents of care order.
135.
Transmission of order.
136.
Production of child.
137.
Harbouring or concealing a child.
Escapees 138.
Escape from institutions, etc.
139.
Charitable childrens institutions and local authorities.
140.
Escape from childrens remand home or rehabilitation school.
141.
Assisting escape, etc.
142.
Production of escaped child.
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141 Children Miscellaneous Provisions on Protection of Children Section 143.
Presumption and determination of age.
144.
Contribution order.
145.
International reciprocity.
146.
Bonds.
PART XI FOSTER CARE PLACEMENT 147.
Conditions for foster care placement.
148.
Persons qualified to foster children.
149.
Registration for foster care placement.
150.
Agreement for maintenance of foster child.
151.
Penalty for contravening provisions of this Part.
152.
Rules.
153.
Amendment of rules.
PART XII ADOPTION 154.
Power to make adoption orders.
155.
Establishment of Adoption Committee.
Pre-requisites for Adoption 156.
Preliminaries.
157.
Children who may be adopted.
158.
Adoption applicants.
159.
Power to dispense with consent.
Guardian ad litem 160.
Guardian ad litem for the child.
Interim Orders 161.
Interim orders.
International Adoptions 162.
International adoptions.
Powers of the Court on Adoption Application 163.
Powers of the court.
164.
Power to appoint guardian.
165.
Adoption order in respect of children previously adopted.
166.
Parental responsibility when adoption is refused.
167.
Appeals.
168.
Amendment of orders.
Registration of Adoption Orders 169.
Adopted children register.
170.
Registration of adoption orders.
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141 [Rev.
2012] Children Effect of Adoption Order Section 171.
Rights and duties of parents and capacity to marry.
172.
Workmens Compensation.
173.
Orders and agreements in respect of child born outside marriage.
174.
Intestacies, wills and settlements.
175.
Provisions supplementary to section 174.
176.
Effect of overseas adoption.
Adoption Societies 177.
Restriction on making arrangements for adoption.
General Provisions on Adoption 178.
Information to be confidential.
179.
Prohibition of certain payments.
180.
Restriction on advertisement.
181.
Offences under this Part.
182.
Regulations.
183.
Rules of court under this Part.
PART XIII CHILD OFFENDERS 184.
Jurisdiction of Childrens Courts.
185.
Power to remit cases to Childrens Court.
186.
Guarantees to a child accused of an offence.
187.
Consideration of welfare.
188.
Friendly setting of Childrens Court.
189.
Words conviction and sentence not to be used of child.
190.
Restriction on punishment.
191.
Methods of dealing with offenders.
192.
Mental treatment.
193.
Power to order parent to pay fines, etc.
194.
Proceedings in respect of offences committed by a child.
PART XIV MISCELLANEOUS AND GENERAL PROVISIONS 195.
Appeals to the Minister.
196.
General penalty.
197.
General power to make regulations.
198.
Exemption.
199.
Grants and expenses of the Minister.
200.
Repeals.
SCHEDULES FIRST SCHEDULE PROCEEDINGS OF THE NATIONAL COUNCIL OF CHILDRENS SERVICES SECOND SCHEDULE WELFARE SCHEMES THIRD SCHEDULE OFFENCES AGAINST CHILDREN WITH RESPECT TO WHICH PART IX APPLIES [Issue 1] 8 [Rev.
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141 Children FOURTH SCHEDULE FOSTER CARE PLACEMENT RULES FIFTH SCHEDULE CHILD OFFENDERS RULES SIXTH SCHEDULE WRITTEN LAWS TO BE REPEALED SEVENTH SCHEDULE TRANSITIONAL PROVISIONS EIGHTH SCHEDULE POWER AND FUNCTIONS OF AN INSPECTION COMMITTEE NINTH SCHEDULE MEMBERS OF THE ADOPTION COMMITTEE 9 [Issue 1] [Rev.
2012] CAP.
141 Children CHAPTER 141 CHILDREN ACT [Date of assent: 31st December, 2001.] [Date of commencement: 1st March, 2002.] An Act of Parliament to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children; to make provision for the administration of childrens institutions; to give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes [L.N.
23/2002, Act No.
12 of 2012.] PART I PRELIMINARY 1.
Short title and commencement This Act may be cited as the Children Act, 2001 and shall come into operation on such date as the Minister may, by notice in the Gazette, appoint and different dates may be appointed for different provisions.
2.
Interpretation In this Act, unless the context otherwise requires Adoption Committee means the Committee established under section 155; adoption order means an adoption order under section 154 vesting the parental rights and duties relating to a child in the adopter; adoption society means a society approved by the Adoption Committee under section 177; age where actual age is not known means apparent age; appointed local authority means a local authority appointed under section 41; approved officer means a person appointed under section 38; Area Advisory Council means a council established under section 32; authorised officer means a police officer, an administrative officer, a childrens officer, an approved officer, a chief appointed under the Chiefs Act (Cap.
128), a labour officer or any other officer authorised by the Director for the purposes of this Act; body of persons means any body of persons whether incorporate or unincorporate; borstal institution means a borstal institution established by section 3 of the Borstal Institutions Act (Cap.
92); child means any human being under the age of eighteen years; 11 [Issue 1] CAP.
141 [Rev.
2012] Children child abuse includes physical, sexual, psychological and mental injury; child of tender years means a child under the age of ten years; childrens remand home means a remand home established under section 50 for the detention of children; Council means the National Council for Childrens Services established by section 30; Director means the Director of Childrens Services appointed under section 37; disabled child means a child suffering from a physical or mental handicap which necessitates special care for the child; early marriage means marriage or cohabitation with a child or any arrangement made for such marriage or cohabitation; education means the giving of intellectual, moral, spiritual instruction or other training to a child; female circumcision means the cutting and removal of part or all of the female genitalia and includes the practices of clitoridectomy, excision, infibulation or other practice involving the removal of part, or of the entire clitoris or labia minora of a female person; foster care placement means the placement of a child with a person who is not the childs parent, relative or guardian and who is willing to undertake the care and maintenance of that child; foster parent means a parent registered under this Act to receive and retain a child for the purpose of caring for and maintaining the child apart from the childs parents, guardian or relative; foster care placement means the placement of a child with a person who is not the childs parent, relative or guardian and who is willing to undertake the care and maintenance of that child; guardian in relation to a child includes any person who in the opinion of the court has charge or control of the child; home in relation to a child means the place where the childs parent, guardian, relative or foster parent permanently resides, or if there is no parent, guardian or relative living and the child has no foster parent, the childs parents or guardians or relatives last permanent residence: Provided that (i) in the case of a parent, guardian or relative having, or having had more than one permanent place of residence, the parent, guardian or relative shall be presumed to be or to have been permanently resident at the place of such persons principal permanent residence; and (ii) where the court is unable to determine the home of any such child, the child shall be deemed for the purposes of this Act to have his home in the area of jurisdiction of the local authority in whose area he is found; [Issue 1] 12 [Rev.
2012] CAP.
141 Children medical practitioner means a person registered as a medical practitioner under the Medical Practitioners and Dentists Act (Cap.
253); Minister means the Minister for the time being entrusted with the Administration of this Act or such other Minister as may be expressly charged with any special matter which is otherwise dealt with under this Act; National Council of Non-Governmental Organisations means the National Council of Non-Governmental Organisations established by section 23 of the Non-Governmental Organisations Co-ordination Act (No.
19 of 1990); nursery means any institution or place at which for the time being, five or more children under the age of seven years are received and cared for regularly for reward; parent means the mother or father of a child and includes any person who is liable by law to maintain a child or is entitled to his custody; place of safety means any institution, hospital or other suitable place the occupier of which is willing to accept the temporary care of a child; private sector means the non-public sector of the economy; rehabilitation school means a rehabilitation school established under section 47; relative, in relation to a child, means any person related to the child, whether of the full blood, half blood or by affinity, and (a) where an adoption order has been made in respect of the child or any other person under this Act, any person who would be a relative of the child within the meaning of this definition if the adopted person was the child of the adopter born inside marriage; or (b) where the child is born outside marriage and the father has acknowledged paternity and is contributing towards the maintenance of the child, the father of the child within the meaning of this definition if the child was the child of his mother and father born inside marriage; spouse, in relation to a wife of a polygamous marriage, means the wife applying for an adoption order either as the sole applicant or jointly with the husband or the wife into whose care a husband applying for an adoption order proposes to give the child.
PART II SAFEGUARDS FOR THE RIGHTS AND WELFARE OF THE CHILD 3.
RealiZation of the rights of the child The Government shall take steps to the maximum of its available resources with a view to achieving progressively the full realiZation of the rights of the child set out in this Part.
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141 [Rev.
2012] Children 4.
Survival and best interests of the child (1) Every child shall have an inherent right to life and it shall be the responsibility of the Government and the family to ensure the survival and development of the child.
(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to (a) safeguard and promote the rights and welfare of the child; (b) conserve and promote the welfare of the child; (c) secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.
(4) In any matters of procedure affecting a child, the child shall be accorded an opportunity to express his opinion, and that opinion shall be taken into account as may be appropriate taking into account the childs age and the degree of maturity.
5.
Non-discrimination No child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status, race, disability, tribe, residence or local connection.
6.
Right to parental care (1) A child shall have a right to live with and to be cared for by his parents.
(2) Subject to subsection (1), where the court or the Director determines in accordance with the law that it is in the best interests of the child to separate him from his parent, the best alternative care available shall be provided for the child.
(3) Where a child is separated from his family without the leave of the court, the Government shall provide assistance for reunification of the child with his family.
7.
Right to education (1) Every child shall be entitled to education the provision of which shall be the responsibility of the Government and the parents.
(2) Every child shall be entitled to free basic education which shall be compulsory in accordance with Article 28 of the United Nations Convention on the Rights of the Child.
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141 Children 8.
Right to religious education (1) Every child shall have a right to religious education subject to appropriate parental guidance.
(2) The Minister shall make regulations giving effect to the rights of children from minority communities to give fulfillment to their culture and to practice their own language or religion.
9.
Right to health care Every child shall have a right to health and medical care the provision of which shall be the responsibility of the parents and the Government.
10.
Protection from child labour and armed conflict (1) Every child shall be protected from economic exploitation and any work that is likely to be hazardous or to interfere with the childs education, or to be harmful to the childs health or physical, mental, spiritual, moral or social development.
(2) No child shall take part in hostilities or be recruited in armed conflicts, and where armed conflict occurs, respect for and protection and care of children shall be maintained in accordance with the law.
(3) It shall be the responsibility of the Government to provide protection, rehabilitation care, recovery and re-integration into normal social life for any child who may become a victim of armed conflict or natural disaster.
(4) The Minister shall make regulations in respect of periods of work and legitimate establishments for such work by children above the age of sixteen years.
(5) In this Act child labour refers to any situation where a child provides labour in exchange for payment and includes (a) any situation where a child provides labour as an assistant to another person and his labour is deemed to be the labour of that other person for the purposes of payment; (b) any situation where a childs labour is used for gain by any individual or institution whether or not the child benefits directly or indirectly; and (c) any situation where there is in existence a contract for services where the party providing the services is a child whether the person using the services does so directly or by agent.
11.
Name and nationality Every child shall have a right to a name and nationality and where a child is deprived of his identity the Government shall provide appropriate assistance and protection, with a view to establishing his identity.
12.
Disabled child A disabled child shall have the right to be treated with dignity, and to be accorded appropriate medical treatment, special care, education and training free of charge or at a reduced cost whenever possible.
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141 [Rev.
2012] Children 13.
Protection from abuse, etc.
(1) A child shall be entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person.
(2) Any child who becomes the victim of abuse, in the terms of subsection (1), shall be accorded appropriate treatment and rehabilitation in accordance with such regulations as the Minister may make.
14.
Protection from harmful cultural rites, etc.
No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the childs life, health, social welfare, dignity or physical or psychological development.
15.
Protection from sexual exploitation A child shall be protected from sexual exploitation and use in prostitution, inducement or coercion to engage in any sexual activity, and exposure to obscene materials.
16.
Protection from drugs Every child shall be entitled to protection from the use of hallucinogens, narcotics, alcohol, tobacco products or psychotropic drugs and any other drugs that may be declared harmful by the Minister responsible for health and from being involved in their production, trafficking or distribution.
17.
Leisure and recreation A child shall be entitled to leisure, play and participation in cultural and artistic activities.
18.
Torture and deprivation of liberty (1) No child shall be subjected to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty.
(2) Notwithstanding the provisions of any other law, no child shall be subjected to capital punishment or to life imprisonment.
(3) A child offender shall be separated from adults in custody.
(4) A child who is arrested and detained shall be accorded legal and other assistance by the Government as well as contact with his family.
19.
Right to privacy Every child shall have the right to privacy subject to parental guidance.
20.
Penalties Notwithstanding penalties contained in any other law, where any person wilfully or as a consequence of culpable negligence infringes any of the rights of a child as specified in sections 5 to 19 such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine.
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2012] CAP.
141 Children 21.
Duties and responsibilities of a child In the application of the provisions of this Act, and in any matter before a court of law concerning any child, due regard shall be had to the duties and responsibilities of a child to (a) work for the cohesion of the family; (b) respect his parents, superiors and elders at all times and assist them in case of need; (c) serve his national community by placing his physical and intellectual abilities at its service; (d) preserve and strengthen social and national solidarity; and (e) preserve and strengthen the positive cultural values of his community in his relations with other members of that community: Provided that in reckoning the requisite duty and responsibility of any individual child, due regard shall also be had to the age and ability of such child and to such limitations as are contained in this Act.
22.
Enforcement of rights (1) Subject to subsection (2), if any person alleges that any of the provisions of sections 4 to19 (inclusive) has been, is being or is likely to be contravened in relation to a child, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress on behalf of the child.
(2) The High Court shall hear and determine an application made by a person in pursuance of subsection (1) and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to19 (inclusive).
(3) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it or under this section including rules with respect to the time within which applications may be brought and references shall be made to the High Court.
PART III PARENTAL RESPONSIBILITY 23.
Definition of parental responsibility (1) In this Act, 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 childs property in a manner consistent with the evolving capacities of the child.
(2) The duties referred to in subsection (1) include in particular (a) the duty to maintain the child and in particular to provide him with (i) adequate diet; (ii) shelter; (iii) clothing; 17 [Issue 1] CAP.
141 [Rev.
2012] Children (iv) medical care including immunisation; and (v) education and guidance; (b) the duty to protect the child from neglect, discrimination and abuse; (c) the right to (i) give parental guidance in religious, moral, social, cultural and other values; (ii) determine the name of the child; (iii) appoint a guardian in respect of the child; (iv) receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child; (v) arrange or restrict the emigration of the child from Kenya; (vi) upon the death of the child, to arrange for the burial or cremation of the child.
(3) The Minister may make regulations for the better discharge of parental responsibility by parents whose work conditions result in the separation from their children for prolonged periods.
(4) 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 childs death, such person (or any other person) may have in relation to the childs property.
(5) 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 childs welfare.
24.
Who has parental responsibility (1) Where a childs 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 superior right or claim against the other in exercise of such parental responsibility.
(2) Where a childs father and mother were not married to each other at the time of the childs birth and have subsequently married each other, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility.
(3) Where a childs father and mother were not married to each other at the time of the childs birth and have not subsequently married each other (a) the mother shall have parental responsibility at the first instance; (b) the father shall subsequently acquire parental responsibility for the child in accordance with the provisions of section 25.
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2012] CAP.
141 Children (4) More than one person may have parental responsibility for the same child at the same time.
(5) A person who has parental responsibility for a child at any time shall not cease to have that responsibility for the child.
(6) Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.
(7) The fact that a person has parental responsibility for a child may not entitle that person to act in any way which would be incompatible with any order made with respect to the child under this Act.
(8) (a) A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf.
(b) The person with whom such arrangement is made may himself be a person who already has parental responsibility for the child concerned.
(c) The making of any such arrangement shall not affect any liability of the person making it which may arise from any failure to meet any part of such persons parental responsibility for the child concerned.
25.
Acquisition of parental responsibility by father (1) Where a childs father and mother were not married at the time of his birth (a) the court may, on application of the father, order that he shall have parental responsibility for the child; or (b) the father and mother may by agreement (a parental responsibility agreement) provide for the father to have parental responsibility for the child.
(2) Where a childs father and mother were not married to each other at the time of his birth but have subsequent to such birth cohabited for a period or periods which amount to not less than twelve months, or where the father has acknowledged paternity of the child or has maintained the child, he shall have acquired parental responsibility for the child, notwithstanding that a parental responsibility agreement has not been made by the mother and father of the child.
26.
Parental responsibility agreement, etc.
(1) A parental responsibility agreement shall have effect for the purposes of this Act if it is made substantially in the form prescribed by the Chief Justice.
(2) A parental responsibility agreement may only be brought to an end by an order of the court made on application by (a) any person who has parental responsibility for the child; or (b) the child himself with the leave of the court.
(3) The Court may only grant leave under subsection (2)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
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141 [Rev.
2012] Children 27.
Transmission of parental responsibility (1) Where the mother and father of a child were married to each other at the time of the birth of the child or have subsequently married each other (a) on the death of the mother the father shall exercise parental responsibility for the child either alone or together with any testamentary guardian appointed by the mother; (b) on the death of the father, the mother if living shall exercise parental responsibility for the child either alone or together with any testamentary guardian appointed by the father; (c) where both the mother and the father of the child are deceased, parental responsibility shall be exercised by (i) any testamentary guardian appointed by either of the parents; or (ii) a guardian appointed by the court; or (iii) the person in whose power a residence order was made prior to the death of the childs father and mother, and which order is still in force; or (iv) a fit person appointed by the court; or (v) in the absence of the persons specified in paragraphs (i), (ii), (iii) and (iv), a relative of the child.
(2) Where the father and mother of the child were not married at the time of the birth of the child and have not subsequently married each other (a) on the death of the mother of the child, the father of the child, if he has acquired parental responsibility under the provisions or this Act, shall if he is still living, have parental responsibility for the child either alone or with any testamentary guardian appointed by the mother or the relatives of the mother; (b) on the death of the father of a child who has acquired parental responsibility under the provisions of this Act, the mother of the child shall exercise parental responsibility in respect of the child either alone, or with any testamentary guardian appointed by the father; (c) the surviving mother or father of the child, as the case may be, shall be entitled to object to any testamentary guardian appointed by either of them acting and may apply to the court for the revocation of the appointment of the testamentary guardian and the relatives of the deceased mother or father of the child, may, if they consider the surviving father or mother of the child, as the case may be, to be unfit to exercise parental responsibility for the child, apply to the court to make such appropriate orders as shall be necessary in the circumstances of the case to safeguard the best interests of the child.
28.
Extension of responsibility beyond eighteenth birthday (1) Parental responsibility in respect of a child may be extended by the court beyond the date of the childs eighteenth birthday if the court is satisfied upon [Issue 1] 20 [Rev.
2012] CAP.
141 Children application or of its own motion, that special circumstances exist with regard to the welfare of the child that would necessitate such extension being made: Provided that the order may be applied for after the childs eighteenth birthday.
(2) An application under this section may be made by (a) the parent or relative of a child; (b) any person who has parental responsibility for the child; (c) the Director; (d) the child.
29.
Regulations by Chief Justice The Chief Justice shall make such regulations as shall be necessary for giving effect to any of the provisions of this Part.
PART IV ADMINISTRATION OF CHILDRENS SERVICES The National Council for Childrens Services 30.
Establishment of National Council for Childrens Services (1) There is established a Council to be known as the National Council for Childrens Services which shall be a body corporate with perpetual succession and a common seal.
(2) The Council shall be capable in its corporate name of (a) suing and being sued; (b) taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; (c) borrowing and lending money; (d) entering into contracts; (e) receiving grants and gifts for child related projects; and (f) doing or performing all such other things or acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate.
31.
Composition of Council (1) The Council shall consist of (a) a chairperson who shall be an eminent person who is knowledgeable in, or has actively contributed to the promotion of the rights and welfare of children, and who shall be appointed by the President; (b) the Permanent Secretary in the Ministry responsible for matters relating to Children; (c) the Permanent Secretary in the Ministry responsible for matters relating to Education; (d) the Permanent Secretary in the Ministry responsible for Local Authorities; 21 [Issue 1] CAP.
141 [Rev.
2012] Children (e) the Permanent Secretary in the Ministry responsible for health; (f) the Permanent Secretary in the Ministry responsible for finance; (g) the Attorney-General; (gg) the Director of Public Prosecutions; (h) the Permanent Secretary in the Ministry responsible for Labour; (i) the Commissioner of Police; (j) six persons representing non-governmental organisations engaged in child welfare activities nominated by the Minister in accordance with such procedure may be prescribed: Provided that membership under this paragraph shall be representative of the interest of all stakeholders and shall take into account the principle of gender parity; (k) three persons representing religious organisations, nominated by the Episcopal Conference, the National Council of Churches of Kenya and Supreme Council of Kenya Muslims, respectively; (l) two representatives of the private sector appointed by the Minister being persons knowledgeable in or who have actively contributed to the promotion of the rights and welfare of children; (m) the Director of Childrens Services who shall be the Secretary to the Council.
(2) The members of the Council nominated under paragraph (j) of subsection (1) shall hold office for three years but may be nominated for a further term of three years.
(3) The conduct and regulation of the business and affairs of the Council shall be as provided for in the First Schedule.
[Act No.
12 of 2012, Sch.] 32.
Functions of the Council (1) The object and purpose for which the Council is established is to exercise general supervision and control over the planning, financing and co-ordination of child rights and welfare activities and to advise the Government on all aspects thereof.
(2) Without prejudice to the generality of subsection (1), the Council shall (a) design and formulate policy on the planning, financing and co- ordination of child welfare activities; (b) determine priorities in the field of child welfare in relation to the socio-economic policies of the Government; (c) plan, supervise and co-ordinate public education programmes on the welfare of children; (d) facilitate donor funding of child welfare projects; (e) co-ordinate and control the disbursement of all funding that may be received by the Council for child welfare projects; (f) provide technical and other support services to agencies participating in child welfare programmes; [Issue 1] 22 [Rev.
2012] CAP.
141 Children (g) prescribe training requirements and qualifications for authorised officers; (h) ensure the enhancement of the best interests of children among displaced or unaccompanied children held in care, whether in refugee camps or in any other institution; (i) ensure the full implementation of Kenyas international and regional obligations relating to children and facilitate the formulation of appropriate reports under such obligations; (j) participate in the formulation of policies on family employment and social security, that are designed to alleviate the hardships that impair the social welfare of children; (k) work towards the provision of social services essential to the welfare of families in general and children in particular; (l) consider and approve or disapprove child welfare programmes proposed by charitable childrens institutions in accordance with section 69; (m) formulate strategies for the creation of public awareness in all matters touching on the rights and welfare of children; (n) set criteria for the establishment of childrens institutions under this Act; (o) design programmes for the alleviation of the plight of children with special needs or requiring special attention; (p) establish panels of persons from whom guardians ad litem appointed by the court may be selected by the court to assist the Minister in carrying out his duties under this Act and in particular in the appointment of any officers prescribed under this Act, in the establishment of childrens institutions and the formulation of any regulations that may be provided under this Act; (q) establish Area Advisory Councils to specialise in various matters affecting the rights and welfare of children; (r) create linkages and exchange programmes with other organisations locally and abroad; (s) endeavour to create an enabling environment for the effective implementation of this Act.
33.
Power of the Council The Council shall have power for the purpose of carrying out its functions, to do all such acts and things as appear to it to be requisite, advantageous or convenient for or in connection with the carrying out of its functions or incidental to their proper discharge and may carry out any activities in that behalf alone or in association with other persons or bodies.
34.
Co-option and committees The Council may co-opt members or regional representatives or appoint committees as it deems fit for the specialised aspects of its functions.
23 [Issue 1] CAP.
141 [Rev.
2012] Children 35.
Regulations by the Council The Council may, with the approval of the Minister, make regulations for the purpose of giving effect to the provisions of section 32.
36.
Expenses The expenses of the Council shall be defrayed out of moneys provided by Parliament or obtained from any other sources for that purpose.
The Director of Childrens Services and Childrens Officers 37.
Appointment of Director, Deputy Directors and Childrens Officers (1) The Minister shall appoint a Director of Childrens Services and may also appoint one or more Deputy Directors of Childrens Services and such number of senior childrens officers and other officers as may be necessary to assist the Director in carrying out the purposes of this Act.
(2) The Director may, subject to any regulations made by the Minister to the contrary, delegate to a Deputy Director or any childrens officer appointed under subsection (1), or any person as the Minister shall deem fit, authority to exercise and perform any of the powers and duties conferred or imposed on the Director under this Act.
(3) Childrens officers shall perform the functions and exercise the powers conferred on them by this Act and shall, in addition, perform such duties as the Director may from time to time direct.
38.
Functions of Director (1) The Director shall safeguard the welfare of children and shall in particular, assist in the establishment, promotion, co-ordination and supervision of services and facilities designed to advance the well being of children and their families.
(2) Without prejudice to the generality of subsection (1) the Director shall (a) supervise childrens officers and co-ordinate and regulate their work in the provision of childrens welfare services; (b) work in collaboration with relevant Government departments and public and private agencies to ensure the efficiency and effectiveness of all social programmes established in the interests of children; (c) maintain up-to-date records and data on the management of childrens services in Kenya, indicating the respective degrees of access to welfare amenities applicable to the various categories of children; (d) provide the secretariat for the Council, and ensure that all decisions taken by the Council are fully processed and implemented; (e) secure the conduct of investigations into cases of hardship affecting children throughout Kenya, and formulate, for the consideration of the Council, proposals for programmes to alleviate the hardships afflicting such children; [Issue 1] 24 [Rev.
2012] CAP.
141 Children (f) give attention and provide assistance to the acute situations of children in hardship, including disabled children, street children, orphaned and destitute children, children who abuse drugs, children who are sexually abused and children who are affected by domestic violence, and formulate programmes for the consideration by the Council, for the alleviation of the plight of such children; (g) make such enquiries and investigations and provide such reports and assessments as may be required by any court or for the enforcement of any order made by a court under this Act; (h) provide all necessary assistance to the judicial process, to the intent that court orders in relation to children which require supporting, social and administrative arrangements may achieve fulfillment; (i) safeguard the welfare of any child or children placed under care, by virtue of a care order or an interim order; (j) provide assistance and procure accommodation for any child not in proper custody, any child who is abandoned or any child who is in need of refuge or safety; (k) trace the parents or guardians of any lost or abandoned child, or return a lost or abandoned child to his lawful place of residence; (l) intervene on behalf of any child who is in need of care and protection and is in danger of imminent injury or harm, where possible by securing the removal of such child to a place of safety; (m) mediate, in so far as permitted under this Act, in family disputes involving children, and their parents, guardians or other persons who have parental responsibility in respect of the children, and promote family reconciliation; (n) make arrangements for the assessment of children placed under care and provide counselling, guidance and other support services for children and their families; (o) provide care, guidance and other assistance and treatment for children who have been arrested or remanded in police custody or in childrens remand homes, and assist children through court proceedings and childrens hearings; (p) supervise all childrens rehabilitation centres, childrens homes and remand homes and safeguard and promote the welfare of any children admitted therein; (q) provide quarterly reports on the management of childrens rehabilitation centres, childrens homes and remand homes; (r) safeguard the welfare of children in foster care; (s) perform any functions prescribed in this Act, or as may be prescribed by any regulations made by the Minister.
(3) The Director shall have power, for the purpose of carrying out his functions, to do all such acts and things as appear to him to be requisite, advantageous or convenient for or in connection with the carrying out of his functions or incidental to their proper discharge and may carry out any activities in that behalf alone or in association with any other person or institution.
25 [Issue 1] CAP.
141 [Rev.
2012] Children (4) Without prejudice to the generality of subsection (3), the Director shall have power to (a) appoint and supervise approved officers and foster parents; (b) call for information from any individual or institution for the purpose of safeguarding the interests of children in accordance with this Act; (c) take over arrangements of proceedings before any public institution or court, involving children, being conducted by a different person as may be authorised under the law.
39.
Penalty for obstruction A person who obstructs the Director or a childrens officer in the execution of his duties or powers under this Act commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term of twelve months in default, or to both.
The Role of Local Authorities 40.
The role of local authorities It shall be the general duty of every local authority (a) to safeguard and promote the rights and welfare of children within its jurisdiction; (b) to promote the good up-bringing of children by their families, through the establishment of suitable family-oriented programmes, and through the creation of a department to deal with the rights and welfare of children, public awareness and the co-ordination of relevant programme support initiatives from different social sub- sectors.
41.
Appointed local authorities The Director may from time to time, appoint a local authority for the purposes of this Act and a local authority so appointed shall, subject to the provisions of section 43, perform the duties imposed and have the powers conferred upon appointed local authorities under this Act.
42.
Local authority welfare schemes A local authority either by itself or jointly with other local authorities shall make welfare schemes for children embracing any or all of the items set out in the Second Schedule to this Act and the Director may by order appoint such local authority or joint local authorities to be an appointed local authority for the purposes and to the extent set out in such schemes.
43.
Delegation of powers and duties by appointed local authorities (1) Where any powers or duties are by this Act conferred or imposed on an appointed local authority, those powers and duties shall (a) in the case of a child who has his home in a municipality or within a township, be powers and duties of the municipal council; (b) in a county outside a municipality or township, the powers and duties of the county council.
[Issue 1] 26 [Rev.
2012] CAP.
141 Children (2) Where, for any district, there is, for the time being, no appointed local authority having jurisdiction therein, the Minister may with the concurrence of the Treasury, by order appoint the District Commissioner of the district to have the functions of an appointed local authority under this Part, and have the powers imposed and conferred upon appointed local authorities by this Act in respect of all children having their homes within the district.
44.
Delegation of functions of county councils (1) A county council which is an appointed local authority may, with the concurrence of the Council, delegate a county division, with or without restrictions or conditions, any of its functions as an appointed local authority.
(2) Where functions are delegated to the council of a county division under this section, such council, in the discharge of those functions, shall act as agent for the county council.
45.
Delegation to charitable childrens institution An appointed local authority may, with the approval of the Director, delegate its powers and duties relating to the investigations under section 120(12)(d) to a charitable childrens institution or an approved officer.
46.
Powers of local authorities to incur expenditure in temporary care Any local authority, whether an appointed local authority or not, and any District Commissioner may incur expenditure in or about the temporary care of any child in need of care including his maintenance in a place of safety or in the return of any such child to his parent or guardian or to the area of the appointed local authority, if any, notwithstanding that in the case of an appointed local authority such a child has not been committed to its care under the provisions of this Act.
PART V CHILDRENS INSTITUTIONS Rehabilitation Schools and Remand Homes 47.
Establishment of rehabilitation schools (1) The Minister may establish such number of rehabilitation schools (hereinafter referred to as rehabilitation school) as he may consider necessary to provide accommodation and facilities for the care and protection of children.
(2) The manager of any institution which is suitable for the reception, maintenance, training and rehabilitation of children ordered to be sent to a rehabilitation school under this Act may apply to the Minister to approve the institution for that purpose and the Minister may, by notice in the Gazette declare the institution to be a rehabilitation school and issue a certificate of approval to the manager.
(3) If at any time the Minister is dissatisfied with the condition or management of a rehabilitation school he may (i) subject the manager to disciplinary proceedings; or (ii) request him in writing to show cause why the certificate of approval should not be withdrawn, and upon the expiration of the notice to 27 [Issue 1] CAP.
141 [Rev.
2012] Children show cause, if the manager has not responded, the certificate of approval shall be deemed to have been withdrawn and the school shall cease to be a rehabilitation school: Provided that the Minister, instead of withdrawing the certificate of approval, may by notice served on the manager of the school, prohibit further admission of persons to the school for such time as may be specified in the notice until the notice is revoked.
(4) If the Minister is satisfied or considers the continuation of a rehabilitation school to be unnecessary, he may give to the manager not less than six months notice in writing of his intention to withdraw the certificate of approval, and upon the expiration of the notice the certificate of approval shall be deemed to have been withdrawn and the school shall cease to be a rehabilitation school.
(5) The manager of a rehabilitation school may, after giving not less than six months notice in writing to the Minister of his intention so to do, surrender the certificate of approval of the school, and upon the expiration of the notice (unless the notice is previously withdrawn) the certificate shall be deemed to have been surrendered and the rehabilitation school shall cease to be approved.
(6) No child shall be received into a rehabilitation school under the provisions of this Act after notice has been given of intention to withdraw or surrender the certificate of approval, but obligations of the manager with respect to children under his care at the date of the notice shall continue until the withdrawal or surrender takes effect.
(7) The Minister shall cause any notice of intention to withdraw or surrender a certificate of approval to be published in the Gazette.
48.
Separate sections in the rehabilitation schools A rehabilitation school shall have separate sections for children of different sexes, and age categories, and separate sections for children offenders and children in need of care and protection.
49.
Obligation of managers The manager of a rehabilitation school shall be bound to accept every child who is duly sent or transferred to the school or otherwise committed to his care, unless (a) the school is an institution for persons of a different religion or of a different sex from that of the child whom it is proposed to send or transfer there; or (b) the manager of the school satisfies the Minister that it is undesirable that any more children should be admitted to the school or otherwise committed to the managers care.
50.
Establishment of childrens remand homes (1) The Minister may establish such childrens remand homes as he considers necessary.
[Issue 1] 28 [Rev.
2012] CAP.
141 Children (2) The manager of any government institution other than a prison may enter into an agreement for the use of that institution or any part thereof as a childrens remand home on such terms as may be agreed between such manager and the Minister.
51.
Supervision of rehabilitation schools and childrens remand homes The Director shall be responsible for the supervision of all rehabilitation schools and childrens remand homes and for this purpose shall periodically visit them or cause them to be visited.
52.
Leave of absence The manager of a rehabilitation school may, with the authority of the Director, grant leave of absence to any child staying in that rehabilitation school for such period and on such conditions as he may deem fit and may at any time terminate such leave and direct the child to return to the school.
53.
Revocation of childrens committal order (1) If at any time during the period of a childs stay at a rehabilitation school the Director is satisfied that such child should not remain subject to the applicable committal order, he may refer the matter to the Childrens Court for revocation of the committal order.
(2) A Childrens Court may at any time, on its own motion or on the application of any person, revoke an order committing a child to a rehabilitation school, but before doing so it shall call for all the relevant records of the court which made the order, and all relevant records of any court which may previously have considered an application under this section.
(3) Notwithstanding anything in this Act, an order committing a child to a rehabilitation school shall not remain in force beyond the date on which the child attains the age of eighteen years, nor shall any such order remain in force for longer than three years at a time except by order of the court.
(4) On an application for an order under subsection (2) or subsection (3) the manager of the rehabilitation school where the child is, shall cause the child to be brought before the court, unless the court otherwise orders.
54.
Transfers and supervision after release (1) The Director may at any time order a child to be transferred from one rehabilitation school to another, but the period of his rehabilitative care shall not be increased thereby.
(2) A child committed to a rehabilitation school shall, after the expiration of the prescribed period of his stay, be under the supervision of such person as the Director shall appoint, for a period of two years, or until he attains the age of twenty-one years whichever shall be the shorter period.
55.
Treatment of absconders and children of difficult character (1) Where the Director is of the opinion that a child committed to a rehabilitation school is a persistent absconder, is of difficult character or is 29 [Issue 1] CAP.
141 [Rev.
2012] Children exercising inappropriate influence on the other children in the school, he may apply to the childrens court having jurisdiction in the place where the school is situate (a) to have the period of committal increased by a period not exceeding six months, if the child is of or below the age of sixteen years; or (b) to have the child sent to a borstal institution, if the child is above the age of sixteen years; or (c) to have the child provided with appropriate medical treatment or professional counselling, if the childs conduct is attributable to drug abuse, or if the child is of unsound mind or is suffering from a mental illness.
(2) The parents of the child or any person who has parental responsibility for the child shall be notified of, and afforded an opportunity to be heard in, any proceedings instituted under this section, unless the court is satisfied that such persons cannot be found or cannot reasonably be expected to attend the proceedings.
(3) The expenses incurred in committing a child under this section shall be borne by the State: Provided that a child whose period of committal is increased or who is sent to a borstal institution shall be provided with appropriate professional assistance.
56.
Removal to health institution (1) In the case of serious illness of a child staying in a childrens remand home or a rehabilitation school the manager, on the advice of a medical officer or medical practitioner, may make an order for his removal to a health institution.
(2) Whenever the medical officer in charge of a health institution considers that the health of a child removed to a hospital under the provisions of this section no longer requires treatment therein, he shall notify the manager of the remand home or rehabilitation school from which he was removed to hospital, who shall thereupon cause such a child to be returned to the school if he is still liable to be kept therein.
(3) Every reasonable precaution shall be taken by the medical officer in charge of the health institution to prevent the escape of any child who is hospitalised therein under this section: Provided that nothing shall be done under the authority of this section which in the opinion of the medical officer in charge of the health institution is likely to be prejudicial to the health of the child concerned.
57.
Authority for confinement in childrens remand homes, rehabilitation school and hospital The order committing a child to custody in a childrens remand home or ordering him to be sent to a rehabilitation school shall be sufficient authority for his confinement in that place in accordance with the tenor thereof, or in a health institution under section 56, and a child while confined and while being conveyed to or from a childrens remand home or a rehabilitation school to or from a health institution, as the case may be, shall be deemed to be in lawful custody.
[Issue 1] 30 [Rev.
2012] CAP.
141 Children Charitable Childrens Institutions 58.
Definition of a charitable childrens institution In this Part a charitable childrens institution means a home or institution which has been established by a person, corporate or unincorporate, a religious organisation or a non-governmental organisation and has been granted approval by the Council to manage a programme for the care, protection, rehabilitation or control of children.
59.
Exceptions A charitable childrens institution shall not include (a) a rehabilitation school established by the Minister under section 47; (b) a school within the meaning of the Education Act (Cap.
211); (c) a borstal institution; (d) any health institution; (e) a childrens day care centre, nursery or other similar establishment: Provided that nothing in this section shall prevent a charitable childrens institution from providing medical care, education or training for children accommodated therein, if the provision of such services has been approved by the Council.
60.
Proof of registration A non-governmental organisation or a religious organisation which establishes a charitable childrens institution shall be required to show proof of the registration of the organisation under a recognised system of registration of private institutions before applying for approval to implement a child welfare programme.
61.
Institution set up by a person or unincorporated body of persons Any person or unincorporated body of persons who or which establishes a charitable institution for the care, protection, rehabilitation or control of children shall be required to furnish the Director with a list of the trustees of the institution before applying for approval to implement a child welfare programme.
62.
Criteria for approval of programmes The Council shall provide the criteria for approval of child welfare programmes of charitable institutions.
63.
Reception of children in a charitable childrens institution (1) A child shall be received in the care of a charitable childrens institution if (a) in an emergency situation, the child is taken to the institution by an authorised officer or any person who has reasonable cause to believe that the child is in need of care and protection; (b) he is referred to the institution by way of an interim care order or a care order.
31 [Issue 1] CAP.
141 [Rev.
2012] Children (2) A child who is received by a charitable childrens institution in accordance with subsection (1)(a) shall be brought before a court without delay unless (a) his guardian or parent applies to the Director for his release; (b) he is held in accordance with section 120(2); (c) it is not in the best interest of the child to do so.
64.
Duty to maintain a child in a charitable childrens institution A charitable childrens institution in which the child is received, shall provide the child with adequate care and protection for the period of his accommodation therein as provided in the criteria set by the Council.
65.
Director to monitor progress of children (1) The Director shall monitor the progress of a child admitted into a charitable childrens institution, until the child is discharged therefrom or until the expiry of a care order made in respect of the child.
(2) The Director shall ensure that the child is periodically visited and interviewed by an officer authorised by him.
66.
Appointment and powers of approved officers (1) A charitable childrens institution may, with the approval of the Director, by notice in the Gazette, appoint one or more persons to be approved officers, to further the purposes of the institution which relate to the care, protection and control of children: Provided that no approved officer shall enter upon the exercise of his functions as such in the area of any appointed local authority without the concurrence of such authority.
(2) The appointment of an approved officer may be revoked by the Director on the recommendation of the charitable childrens institution and any such revocation shall be published in the Gazette.
(3) Approved officers shall have such powers as the Director may prescribe.
67.
Inspection of charitable childrens institutions (1) The Director may authorise an officer to inspect a charitable childrens institution, or any other premises which he has cause to believe, are being used to accommodate children who are in need of care and protection.
(2) Any authorised officer acting in accordance with subsection (1) may at all reasonable times, enter, after producing, if asked to do so, some duly authenticated document showing that he is so authorised to enter, any charitable childrens institution or premises aforesaid and shall in particular (a) interview any child in the institution or premises; (b) require the production of an annual report and any records required to be kept in accordance with the regulations made under section 72; (c) inspect the conditions and facilities provided by the institution or managers of the premises; [Issue 1] 32 [Rev.
2012] CAP.
141 Children (d) prepare and submit a report to the Director outlining his findings and recommendations.
(3) (a) A refusal to allow any authorised officer referred to in subsection (2) to enter a charitable childrens institution or such premises as are mentioned in subsection (1) to inspect or interview any person in the institution or premises, shall be deemed to be a reasonable cause to suspect that a child in the institution or the premises is being neglected or abused in a manner which causes the child to be in need of care and protection.
(b) Any person who unlawfully refuses to allow an authorised officer referred to in subsection (2) to enter a charitable childrens institution or such premises as are mentioned in subsection (1), or who interferes in any way with the work of such officer or fails to produce any report or records, or conceals any facility within such institution or premises, commits an offence and is liable to imprisonment for a term not exceeding twelve months or to a fine not exceeding Kenya shillings fifty thousand or to both.
(4) Upon receipt of an inspection report the Director may in addition to taking other remedial measures as may be prescribed by the Minister, require a charitable childrens institution to appoint a new management and institute appropriate remedial measures: Provided that the Director may in consultation with the Area Advisory Council appoint a manager to manage the institution for a period not exceeding two months in order to institute remedial measures.
(5) The functions and powers of the authorised officer appointed under this section shall be supplementary to and not in derogation of the functions and powers conferred on an inspection committee appointed under section 68.
68.
Inspection committees (1) The Minister may appoint an inspection committee to inspect any rehabilitation school, childrens remand home or charitable childrens institution.
(2) The committee appointed under subsection (1) shall comprise not more than five persons and shall exercise and perform, subject to any directions given by the Minister, the powers and functions specified in the Eighth Schedule.
(3) Recommendations of the committee shall be reported to the Minister and shall, subject to any directions given by the Minister, be implemented by the Director.
(4) The Director shall, within six months of the submission of a report by the committee to the Minister, report to the Council on the action taken to implement any recommendations contained in the report.
69.
Duty to notify the Area Advisory Council (1) Any charitable childrens institution which intends to implement a child welfare programme shall notify the Area Advisory Council and shall provide full information on the mode of operation and the specific objects of the programme.
(2) The Area Advisory Council shall submit to the Director particulars of the proposed child welfare programme with recommendations.
33 [Issue 1] CAP.
141 [Rev.
2012] Children (3) The Director shall place before the Council all information on the proposed child welfare programme supplied by virtue of subsection (2), and the Council may approve or disapprove such programme or part of it taking into account the best interests of children.
(4) Where the Council disapproves a programme or part of a programme by virtue of subsection (2), any person or organisation who proceeds with it or with the part that is disapproved shall be liable to a fine not exceeding twenty thousand shillings and to an additional one thousand shillings for each day that the disapproved programme remains in operation.
70.
Review of programme The Director shall, at the end of twelve months beginning with the date of approval of a child welfare programme, and thereafter annually, review the programme in order to advise the Council on whether the programme should continue being in force or be cancelled.
71.
Cancellation of a programme (1) The Council, upon the recommendation of the Director, may cancel a programme undertaken by a charitable childrens institution on the grounds that (a) the institution is unfit for the care, protection and control of children; or (b) the children admitted into the institution are suffering or are likely to suffer harm; or (c) the manager of the institution has contravened any of the regulations made under this Act: Provided that the Council shall give fifteen days notice of the proposed cancellation.
(2) Any person aggrieved by the Councils decision made in accordance with subsection (1) may appeal to the Minister whose decision shall be final.
(3) When a cancellation under this section takes effect, the Director shall, subject to any directions of the Minister, take such remedial measures as may be necessary to protect the children accommodated in the home.
(4) The Director may, under subsection (3) (a) remove any child or children from the home; (b) procure the closure of the home; (c) institute disciplinary measures against the manager of the home; or (d) take such other action as may be necessary for the protection of the children.
72.
Regulations The Minister may, in consultation with the Council, make regulations for the better carrying out of the provisions of this Part and in particular, such regulations may make provision for (a) the requirements of and procedure for approval of childrens welfare programmes; [Issue 1] 34 [Rev.
2012] CAP.
141 Children (b) the management of remand homes, rehabilitation schools, and charitable childrens institutions; (c) requirements as to the accommodation, staff and equipment to be provided in charitable childrens institutions; (d) the qualifications of managers; (e) the training and remuneration of persons employed in childrens remand homes, and rehabilitation schools; (f) the criteria to be applied to limit the number of children who may be accommodated in charitable childrens institutions; (g) the education and training of children in charitable childrens institutions; (h) religious instruction to children in charitable childrens institutions appropriate to the religious persuasion to which they belong; (i) requirements as to arrangements for medical care (including psychiatric and dental health) and for the prevention of infectious and contagious diseases in charitable childrens institutions; (j) special care for children with disabilities and children with chronic ailments; (k) requirements as to the keeping of records and giving of notices in respect of children received in charitable childrens institutions; (l) the conduct of reviews under section 70; (m) the conduct of inspections of charitable childrens institutions; (n) corrective measures which should be imposed by the Director after inspection of a charitable childrens institution and penalties for non- compliance therewith; (o) appeals against decisions made under this Part.
PART VI CHILDRENS COURTS 73.
Jurisdiction of Childrens Court There shall be courts to be known as Childrens Courts constituted in accordance with the provisions of this section for the purpose of (a) conducting civil proceedings on matters set out under Parts III, V, VII, VIII, IX, X, XI and XIII; (b) hearing any charge against a child, other than a charge of murder or a charge in which the child is charged together with a person or persons of or above the age of eighteen years; (c) hearing a charge against any person accused of an offence under this Act; (d) exercising any other jurisdiction conferred by this or any other written law: Provided that (i) reference to subordinate courts of any class, in the First Schedule to the Criminal Procedure Code (Cap.
75), shall include a Childrens Court; 35 [Issue 1] CAP.
141 [Rev.
2012] Children (ii) the Chief Justice may, by notice in the Gazette, appoint a magistrate to preside over cases involving children in respect of any area of the country; (iii) where in the course of any proceedings in a Childrens Court it appears to the court that the person charged, or to whom the proceedings relate, is over eighteen years of age, or where in the course of any proceedings in any court other than a Childrens Court it appears to the court that the person charged or to whom the proceedings relate, is under eighteen years of age, nothing in this section shall prevent the court, if it thinks fit, from proceeding with the hearing and determination of the case; (iv) where any conviction or sentence made or passed by a court other than a Childrens Court is appealed against or is brought before the High Court for confirmation or revision and it appears that the person convicted was at the time of the commission of the offence under eighteen years of age, the High Court shall have power to substitute for the conviction a finding of guilty in accordance with section 196 and substitute for the sentence an order under section 125(2) of this Act.
74.
Sitting of Childrens Court A Childrens Court shall sit in a different building or room, or at different times, from those in which sittings of courts other than Childrens Courts are held, and no person shall be present at any sitting of a Childrens Court except (a) members and officers of the court; (b) parties to the case before the court, their advocates and witnesses and other persons directly concerned in the case; (c) parents or guardians of any child brought before the court; (d) bona fide registered representatives of newspapers or news agencies; (e) such other persons as the court may specially authorise to be present.
75.
Power to clear court Where in any proceedings in relation to an offence against or by a child, or any conduct contrary to decency or morality, a person who, in the opinion of the court, is under eighteen years of age is called as a witness, the court may direct that all or any persons, not being members or officers of the court, or parties to the case or their advocates, shall be excluded from the court.
76.
General principles with regard to proceedings in Childrens Court (1) Subject to section 4 where a court is considering whether or not to make one or more orders under this Act with respect to a child it shall not make the order or any other orders unless it considers that doing so would be more beneficial to the welfare of the child than making no order at all.
[Issue 1] 36 [Rev.
2012] CAP.
141 Children (2) In any proceedings in which an issue on the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to be prejudicial to the welfare of the child.
(3) Where the court is considering whether or not to make an order with regard to a child, it shall have particular regard to the following matters (a) The ascertainable feelings and wishes of the child concerned with reference to the childs age and understanding; (b) the childs physical, emotional and educational needs and in particular, where the child has a disability, the ability of any person or institution to provide any special care or medical attention that may be required for the child; (c) the likely effect on the child of any change in circumstances; (d) the childs age, sex, religious persuasion and cultural background; (e) any harm the child may have suffered, or is at risk of suffering; (f) the ability of the parent, or any other person in relation to whom the court considers the question to be relevant, to provide for and care for the child; (g) the customs and practices of the community to which the child belongs; (h) the childs exposure to, or use of drugs or other psychotropic substances and, in particular, whether the child is addicted to the same, and the ability of any person or institution to provide any special care or medical attention that may be required for the child; (i) the range of powers available to the court under this Act.
(4) The court may, if it considers it imperative for the proper determination of any matter in issue before it, of its own motion or upon application, call any expert witness it shall deem appropriate to provide assistance to the court, and the expenses of any such witness shall be determined by the court and shall be defrayed out of moneys provided by Parliament.
(5) In any proceedings concerning a child, whether instituted under this Act or under any written law, a childs name, identity, home or last place of residence or school shall not, nor shall the particulars of the childs parents or relatives, any photograph or any depiction or caricature of the child, be published or revealed, whether in any publication or report (including any law report) or otherwise.
(6) Any person who contravenes the provisions of subsection (5) commits an offence and shall on conviction be liable to a fine not less than one hundred thousand shillings or to imprisonment for a term not less than one year or to both, and in the case of a body corporate, a fine of not less than one million shillings.
77.
Legal aid (1) Where a child is brought before a court in proceedings under this Act or any other written law, the court may, where the child is unrepresented, order that the child be granted legal representation.
(2) Any expenses incurred in relation to the legal representation of a child under subsection (1) shall be defrayed out of monies provided by Parliament.
37 [Issue 1] CAP.
141 [Rev.
2012] Children 78.
Reports (1) A court while considering any question with respect to a child under this Act, may require to have presented to it a report, either oral or written as the court may direct, on such matters relating to the child as the court may consider necessary; and the court may direct that such report be prepared by such person or persons as the court may designate.
(2) Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take into account (a) any statement contained in the report; or (b) any evidence given in respect of the matters referred to in the report, in so far as the statement or evidence is, in the opinion of the court, relevant to the question which it is considering.
79.
Appointment of a guardian ad litem A court before which a child is brought, and especially where that child is not represented by an advocate, may appoint a guardian ad litem for the purposes of the proceedings in question and to safeguard the interests of the child.
80.
Appeals Unless otherwise provided under this Act, in any civil or criminal proceedings in a Childrens Court, an appeal shall lie to the High Court and a further appeal to the Court of Appeal.
PART VII CUSTODY AND MAINTENANCE 81.
Meaning of custody, care and control (1) In this Part unless the context otherwise requires (a) custody with respect to a child, means so much of the parental rights and duties as relate to the possession of the child; (b) care and control means actual possession of a child, whether or not that possession is shared with one or more persons; (c) legal custody means so much of the parental rights and duties in relation to possession of a child as are conferred upon a person by a custody order; (d) actual custody means the actual possession of a child, whether or not that possession is shared with one or more persons.
(2) Where a person, not having legal custody of a child, has care and control of the child, he shall be under a duty to safeguard the interests and welfare of that child.
(3) Where a person, not having legal custody of a child, has actual custody he shall be deemed to have care and charge of the child and shall be under a duty to take all reasonable steps to safeguard the interests and welfare of that child.
[Issue 1] 38 [Rev.
2012] CAP.
141 Children (4) In this Act, unless the context otherwise requires, reference to the person under whom a child has his home refers to the person who, disregarding absence of the child at a hospital or boarding school and any other temporary absence, has care and control of that child.
82.
Custody (1) A court may, on the application of one or more persons qualified under subsection (3) of this section, make an order vesting the custody of a child in the applicant or, as the case may be, in one or more of the applicants.
(2) An order under subsection (1) may be referred to as a custody order, and the person to whom custody of the child is awarded is referred to as the custodian of the child.
(3) Custody of a child may be granted to the following persons (a) a parent; (b) a guardian; (c) any person who applies with the consent of a parent or guardian of a child and has had actual custody of the child for three months preceding the making of the application; (d) any person who, while not falling within paragraph (a), (b) or (c), can show cause, having regard to section 83, why an order should be made awarding that person custody of the child.
83.
Principles to be applied in making custody order (1) In determining whether or not a custody order should be made in favour of the applicant, the court shall have regard to (a) the conduct and wishes of the parent or guardian of the child; (b) the ascertainable wishes of the relatives of the child; (c) 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; (d) the ascertainable wishes of the child; (e) whether the child has suffered any harm or is likely to suffer any harm if the order is not made; (f) the customs of the community to which the child belongs; (g) the religious persuasion of the child; (h) 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; (i) the circumstances of any sibling of the child concerned, and of any other children of the home, if any; (j) the best interest of the child.
39 [Issue 1] CAP.
141 [Rev.
2012] Children (2) Where a custody order is made giving custody of a child to one party to a marriage, or in the case of joint guardians to one guardian, or in the case of a child born out of wedlock to one of the parents, the court may order that the person not awarded custody shall nevertheless have all or any rights and duties in relation to a child, other than the right of possession, jointly with the person who is given custody of the child.
(3) In any case where a decree for judicial separation or a decree, either nisi or absolute for divorce, is pronounced, and the court pronouncing the decree either nisi or absolute finds the parent by reason of whose misconduct the decree is made to be unfit to have the legal custody of the child or children of the marriage, the parent so declared to be unfit shall not, upon the death of the other parent, be entitled to legal custody of the child except with the leave of the court.
84.
Restriction on removal of a child where applicant has provided home for three years (1) Where an application for a custody order in respect of a child made by the person with whom the child has, at the time the application is made, had his home for a period, whether continuous or not, of three years, no person shall be entitled, against the will of the applicant, to remove the child from the applicants custody except with the leave of the court.
(2) Any person who contravenes subsection (1) commits an offence and shall be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding ten thousand shillings or to both.
85.
Return of child taken away in breach of section 80 (1) A court may, on the application of a person from whom a child has been removed in breach of section 84, order the person who has so removed the child to return the child to the applicant and where the child has been removed from the jurisdiction of the court or the Republic of Kenya, make a wardship order or a production order on such conditions as the court may deem appropriate in the circumstances.
(2) A court may, on the application of a person who has reasonable grounds for believing that another person is intending to remove a child from the applicants custody in breach of section 84, by order direct that other person not to remove the child from the applicant.
(3) Where a court is satisfied by information on oath that there are reasonable grounds for believing that a child to whom an order under subsection (1) relates is in the premises specified in the information, the court may issue a search warrant authorising a police officer to search the premises; and if the police officer acting in pursuance of a warrant under this section finds the child, he shall return the child to the person whose application the order under subsection (1) was made.
(4) Whenever a court makes a custody order with respect to a child it shall, in addition, give such directions as to any rights of access to the child, and with regard to the maintenance of the child as the court may deem fit.
[Issue 1] 40 [Rev.
2012] CAP.
141 Children 86.
Disputes between joint custodians If two persons have parental rights or duty vested in them jointly by a custody order but cannot agree on its exercise or performance, either of them may apply to the court, and the court may make such order regarding the exercise of the right or performance of the duty as it thinks fit.
87.
Revocation of custody order (1) A court may, on application, revoke a custody order, provided that before doing so it shall make an order as to who is to have custody of the child thereafter or an appropriate section 114 order.
(2) The Court shall not proceed to hear an application made for the revocation of a custody order where a previous such application made by the same person has been refused by that or any other court unless (a) in refusing the previous application the court directed that this subsection should not apply; or (b) it appears to the court that because of a change in circumstances or for any other reason it is proper to proceed with the application.
(3) The custodian of a child may apply to the court for the revocation of any order made with regard to access to the child, or with respect to the maintenance of the child.
(4) Any other person on whose application an order in respect of access or maintenance was made, or who was required by such an order to contribute towards the maintenance of the child, may apply to a court for the revocation or variation of that order.
(5) Any order in relation to access or maintenance in respect of a child who is subject of a custody order shall not cease to have effect on the revocation of a custody order unless otherwise directed by the court.
(6) A custody order made in respect of a child, and any order in respect of access or maintenance of a child who is the subject of a custody order, shall cease to have effect when the child attains the age of eighteen years: Provided that the court shall have power, upon application being made, to extend a custody, access or maintenance order beyond the childs eighteenth birthday, for such period as it shall deem fit.
88.
Interim custody orders (1) The court shall have power to make interim custody orders and may from time to time review, suspend or vary such orders.
(2) An interim custody order shall not be made in respect of a period exceeding twelve months.
89.
Agreement not to be invalid by reason of giving custody to mother No agreement made between the parents of a child, shall be held to be invalid by reason only of its providing that the father shall give legal custody or actual custody thereof to the mother: Provided that the court shall not enforce any such agreement if it is of the opinion that it will not be for the benefit of the child to give effect thereto.
41 [Issue 1] CAP.
141 [Rev.
2012] Children Maintenance of Children 90.
Joint maintenance of children Unless the court otherwise directs, and subject to any financial contribution ordered to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child (a) Where the parents of a child were married to each other at the time of the birth of the child and are both living, the duty to maintain a child shall be their joint responsibility; (b) where two or more guardians of the child have been appointed, the duty to maintain the child shall be the joint responsibility of all guardians, whether acting in conjunction with the parents of the child or not; (c) where two or more custodians have been appointed in respect of a child it shall be the joint responsibility of all custodians to maintain the child; (d) where a residence order is made in favour of more than one person, it shall be the duty of those persons to jointly maintain the child; (e) where the mother and father of a child were not married to each other at the time of birth of the child and have not subsequently married, but the father of the child has acquired parental responsibility for the child, it shall be the joint responsibility of the mother and father of the child to maintain that child.
91.
Power to make maintenance order Any parent, guardian or custodian, of the child, may apply to the court to determine any matter relating to the maintenance of the child and to make an order that a specified person make such periodical or lump sum payment for the maintenance of a child, in this Act referred to as a maintenance order, as the court may see fit: Provided that (a) on the making, varying, or discharging of a residence, guardianship or custody order, the court may make a maintenance order for a child even though no application has been made by any person; (b) a person who has attained the age of eighteen years may, with the leave of the court, apply to the court for a maintenance order to be made in his favour in the following circumstances (i) The person is or will be involved in education and training which will extend beyond the persons eighteenth birthday; or (ii) the person is disabled and requires specialised care which will extend beyond the persons eighteenth birthday; or (iii) the person is suffering from an illness or ailment and will require medical care which will extend beyond the persons eighteenth birthday; or (iv) other special circumstances exist which would warrant the making of the order.
[Issue 1] 42 [Rev.
2012] CAP.
141 Children 92.
Maintenance during matrimonial proceedings The court shall have power to make a maintenance order, whether or not proceedings for nullity, judicial separation, divorce or any other matrimonial proceedings have been filed by the parent of a child, or during proceedings or after a final decree is made in such proceedings: Provided always that once proceedings for the maintenance of a child have been commenced under this Act or any other Act, no subsequent or other proceedings with respect to the maintenance of that child may be commenced under any other Act without the leave of the court.
93.
Financial provisions The court may order the person against whom a maintenance order is made to make a financial provision for the child by (i) periodical payments; or (ii) such lump sum payment as the court shall deem fit, to the person in whose favour the order is made or to any other person appointed by the Court.
94.
Financial provisions by step-parents and father of child born out of wedlock (1) The Court may order financial provision to be made by a parent for a child including a child of the other parent who has been accepted as a child of the family and in deciding to make such an order the court shall have regard to the circumstances of the case and without prejudice to the generality of the foregoing, shall be guided by the following considerations (a) The income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make an order, have or are likely to have in the foreseeable future; (b) the financial needs, obligations, or responsibilities which each party has or is likely to have in the foreseeable future; (c) the financial needs of the child and the childs current circumstances; (d) the income or earning capacity, if any, property and other financial resources of the child; (e) any physical or mental disabilities, illness or medical condition of the child; (f) the manner in which the child is being or was expected to be educated or trained; (g) the circumstances of any of the childs siblings; (h) the customs, practices and religion of the parties and the child; (i) whether the respondent has assumed responsibility for the maintenance of the child and if so, the extent to which and the basis on which he has assumed that responsibility and the length of the period during which he has met that responsibility; 43 [Issue 1] CAP.
141 [Rev.
2012] Children (j) whether the respondent assumed responsibility for the maintenance of the child knowing the child was not his child, or knowing that he was not legally married to the mother of the child; (k) the liability of any other person to maintain the child; (l) the liability of that person to maintain other children.
95.
Power to order maintenance monies to be paid to person other than the applicant Whenever a maintenance order is made under this section the court may, at the time of making the order, or from time to time thereafter, on being satisfied that the person in whose favour the order is made (a) is not a fit or proper person to receive any maintenance monies specified in the order in respect of a child; or (b) has left the jurisdiction of the court for an indefinite period, or is dead, or is incapacitated or has become of unsound mind, or has been imprisoned or has been declared bankrupt; or (c) has misappropriated, misapplied or mismanaged any maintenance monies paid to him for the benefit of the child, appoint any other person whom it considers fit and responsible to receive and administer any maintenance monies required to be paid under a maintenance order, or order the person required to make a payment of the maintenance monies under this section to secure the whole or any part of it by vesting the sums or any other property and subject thereto in trust for the child.
96.
Duration of financial provisions (1) A maintenance order requiring that a financial provision in respect of a child be paid by periodical payments may commence on the date of the application or such later date as the court may direct, but will not remain in force beyond the childs eighteenth birthday, subject to the provisions of section 91.
(2) An order for periodical payment shall be reviewed by the court upon the death of the person who is liable to make the payment.
97.
Interim orders A court shall have power to make an interim maintenance order and in so doing may dispense with any notice that may be prescribed to be given to any person, if it is satisfied that it is in the best interests of the child so to do.
98.
Other maintenance provisions A court shall have power to make an order and to give directions regarding any aspect of the maintenance of a child, including but not limited to, matters relating to the provision of education, medical care, housing and clothing for the child; and in this behalf may make an order for financial provisions for the child.
99.
Power to impose conditions and to vary order The court shall have power to impose such conditions as it thinks fit to an order made under this section and shall have power to vary, modify or discharge any order made under section 98 with respect to the making of any financial [Issue 1] 44 [Rev.
2012] CAP.
141 Children provision, by altering the times of payments or by increasing or diminishing the amount payable or may temporarily suspend the order as to the whole or any part of the money paid and subsequently revive it wholly or in part as the court thinks fit.
100.
Power to vary maintenance agreements Where the parents, guardians or custodians of a child, have entered into an agreement whether oral or written in respect of the maintenance of the child the court may, upon application, vary the terms of the agreement if it is satisfied that such variation is reasonable and in the best interests of the child.
Enforcement of Maintenance Orders and Contribution Orders 101.
Enforcement of maintenance orders and contribution orders (1) Any person, including the child in whose favour a maintenance order has been made pursuant to section 91, may apply to the court for the enforcement of the order under this section, if the person against whom the order is made has failed to comply with any provision contained in a maintenance order or has defaulted in any payment specified by the order, for the recovery of any arrears with regard to any financial provision stipulated in the order.
(2) Where a contribution order has been made under section 144 of this Act, a person or an institution in whose favour the order has been made may apply to the court under this section for the enforcement of the order and for the recovery of any arrears from the person required to make a contribution to the maintenance of the child.
(3) Unless otherwise directed by the court, notice of proceedings under this section shall be served on the respondent who may be summoned or arrested on a warrant issued by the court.
(4) Prior to the making of an order under this section, the court may hold an enquiry as to the means of the respondent who shall, whenever possible, be present and where such enquiry is held the court may direct that (a) enquiries be made as to the means of the respondent by such person as the court may direct; or (b) the respondents income, assets and liabilities be searched to establish such information as the court may require to make an order under this section; or (c) a statement of means from the respondents employer, or auditors or from such other person as the court shall direct, be availed to the court.
(5) Where the court is satisfied that the respondent has failed to make payment of any financial provision under a maintenance order or a contribution order, the court may (a) order that any arrears in respect of any maintenance monies or contribution monies as the case may be, be paid forthwith, or by instalments or within such other period as shall be specified by the court; 45 [Issue 1] CAP.
141 [Rev.
2012] Children (b) 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; (c) issue a warrant for distress on the respondents 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 respondents earnings including any pension payable to the defaulter if the court is satisfied that (i) the failure to make payment was due to the wilful refusal or culpable neglect of the respondent; and (ii) the respondent is gainfully employed or is engaged in some business enterprise or undertaking or owns property from which he derives an income: Provided that the court shall not, unless special circumstances exist, make an order for the attachment of the respondents earnings in an amount which shall exceed more than 45% of the respondents annual income in any period of twelve months; (d) 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; (e) 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; (f) restrain by way of an injunction the disposition, wastage or damage of any property belonging to the respondent.
(6) The court shall not make an order under subsection (5) paragraph (c), (d), (e) or (f) unless satisfied that (a) the respondent has wilfully and deliberately concealed or misled the court or any person appointed or directed to carry out enquiries under subsection (4) of this section as to the true nature and extent of his earnings or income; or (b) the respondent, with the intent to obstruct or delay the execution of any order that may be passed against him under this section or with the object of reducing his means to provide maintenance for the child (i) is about to dispose of most or the whole of his property; or (ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court; or [Issue 1] 46 [Rev.
2012] CAP.
141 Children (iii) is about to abscond or leave the local limits of the jurisdiction of the court.
(7) The court shall have power under this section to issue a warrant committing the respondent to imprisonment for a period of not less than five days nor more than four weeks: Provided that the court shall not issue a warrant for imprisonment unless it is satisfied that (a) the respondent has persistently and wilfully refused or neglected to make payment of all or any part of the monies ordered to be paid under a maintenance order or a contribution order without reasonable cause; (b) the respondent is present at the hearing; (c) an order for attachment of earning would not be appropriate; (d) it has enquired into the cause of the default and is satisfied that such default was due to the respondents wilful refusal or culpable neglect.
(8) The issue of the warrant may be postponed on such terms as the court may think fit but if postponed, it may not be issued without further notice being given if requested by the defaulter, and a further review by the court.
(9) The court shall have power to vary, modify or discharge any order made under this section.
PART VIII GUARDIANSHIP 102.
Appointment of guardian (1) For the avoidance of doubt, in this Part, guardian means a person appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child in accordance with the provisions of this Act.
(2) A guardian may be appointed in respect of any child who is resident in Kenya whether or not the child was born in Kenya or is a Kenyan citizen.
(3) A guardian appointed under this Act need not be a Kenyan citizen or resident in Kenya.
(4) A guardian may be appointed in respect of the person or the estate of the child or both.
(5) Where a guardian is appointed only in respect of the estate of the child, he need not have actual custody of the child but he shall have (a) the power and responsibility to administer the estate of the child and in particular to receive and recover and invest the property of the child in his own name for the benefit of the child; (b) the duty to take all reasonable steps to safeguard the estate of the child from loss or damage; 47 [Issue 1] CAP.
141 [Rev.
2012] Children (c) the duty to produce and avail accounts in respect of the childs estate to the parent or custodian of the child or to such other person as the court may direct, or to the court, as the case may be, on every anniversary of the date of his appointment; (d) to produce any account or inventory in respect of the childs estate when required to do so by the court.
103.
Rights of surviving parent as to guardianship and power of court (1) On the death of the father of a child, the mother if surviving shall, subject to the provisions of this Act, be the guardian of the child and when no guardian has been appointed by the father or the guardian appointed by the father is dead or refuses to act, the court may appoint a guardian to act jointly with the mother.
(2) On the death of the mother of a child, the father, if surviving, shall be the guardian of the child either alone or jointly with any guardian appointed by the mother or if the guardian appointed by the mother is dead or refuses to act, the court may appoint a guardian to act jointly with the father.
104.
Appointment of testamentary guardian (1) Either parent of a child may, by will or deed, appoint any person to be the guardian of the child after that parents death.
(2) A guardian of a child may by will or deed appoint another individual to take his place as the guardian of the child in the event of his death.
(3) Any appointment made under subsection (1) or (2) shall not have effect unless (a) in the case of an appointment by deed, the deed is dated and is signed by the person making the appointment and in the presence of two witnesses; (b) in the case of an appointment made by a written will, it is made, executed and attested in accordance with the provisions of section 11 of the Law of Succession Act (Cap.
160), or an appointment made in the course of an oral will if it is made in accordance with section 9 of that Act.
(4) A guardian so appointed shall act jointly with the surviving parent of the child as long as that parent remains alive, unless the parent objects to his so acting.
(5) If the surviving parent objects to such joint guardianship, or if the guardian appointed considers that the parent is unfit to have legal custody of the child, the guardian or parent of the child may apply to the court which may (a) refuse to make any order in which case the parent shall remain the sole guardian; or (b) make an order that the guardian shall act jointly with the parent; or (c) make an order appointing a relative of the child or a person who is willing to so act, a guardian of the child, to act jointly with the parent or guardian or both of them; or [Issue 1] 48 [Rev.
2012] CAP.
141 Children (d) make an order that the guardian shall be the sole guardian of the child, in which case the court shall make such order regarding the custody of the child and the rights of contact thereto of his parent and relatives, having regard to the welfare of the child as it may think fit, and further order that the parent shall pay the guardian a financial provision towards the maintenance of the child having regard to the means of the parent, as the court may consider reasonable: Provided that the court shall not appoint the guardian, sole guardian for the child if he is not a relative of the child, unless exceptional circumstances exist with regard to the welfare of the child.
(6) Where guardians are appointed by both parents, the guardians so appointed shall, after the death of the surviving parent, act jointly.
(7) If under subsection (5) a guardian has been appointed by the court to act jointly with the surviving parent, he shall continue to act as guardian after the death of the parent, but if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the guardian appointed by the parent.
(8) Any person, not being a parent of a child, in whose favour an existing custody order or a residence order in respect of a child has been made, or to whom the care of a child has been entrusted by virtue of being a fit person under this Act, shall act jointly with the surviving parent of a child or with his guardian: Provided that the surviving parent or the guardian shall be entitled to apply to court for an order giving effect to some other arrangement.
105.
Appointment of guardian by the court In addition to the powers of the court to appoint a guardian under subsection (5) of section 104 the court may appoint a guardian in the following circumstances (a) On the application of any individual, where the childs parents are no longer living, or cannot be found and the child has no guardian and no other person having parental responsibility for him; (b) on the application of any individual, where the child is a displaced child within the meaning of section 119 of this Act.
106.
Guardians revocation and disclaimer (1) An appointment under section 104 revokes an earlier appointment (including one made in an unrevoked will or codicil) made by the same person in respect of the same child, unless it is clear (whether as the result of an express provision in the later appointment or by necessary implication) that the purpose of the later appointment is to appoint an additional guardian.
(2) An appointment under section 104(including one made in an unrevoked will or codicil) is revoked if the person who made the appointment revokes it by a dated instrument which is signed (a) by him; or (b) at his direction, in his presence and in the presence of two witnesses who each attest to the signature.
49 [Issue 1] CAP.
141 [Rev.
2012] Children (3) For the avoidance of doubt, an appointment under section 104 is revoked if the will or codicil is revoked.
(4) A person who is appointed a guardian under section 104 or 105 may disclaim his appointment by an instrument signed by him and made within reasonable time of his first knowing that the appointment has taken effect.
(5) Where regulations are made by the Chief Justice prescribing the manner in which such disclaimer must be recorded, no such disclaimer shall have effect unless it is recorded in the prescribed manner.
(6) Any appointment of a guardian may be brought to an end at any time by order of the court on the application of (a) any parent or guardian; or (b) the child concerned, with the leave of the court; or (c) a relative of the child, in any proceedings if the court considers that it should be brought to an end even though no application has been made.
(7) Where a court revokes an appointment of guardian the court shall prior to doing so, ascertain who would have guardianship or legal custody of the child if, on the revocation of the appointment of the guardian, no further order was made.
107.
Extension of appointment of guardian beyond childs eighteenth birthday (1) The appointment of a guardian shall be determined upon the child attaining the age of eighteen years, unless exceptional circumstances exist that would require a court to make an order that the appointment be extended.
(2) The exceptional circumstances referred to in subsection (1) are that the child suffers from a mental or physical disability or from an illness that will render him incapable of maintaining himself, or of managing his own affairs and his property without the assistance of a guardian after his eighteenth birthday or such other exceptional circumstances with regard to the child as the court may deem proper to warrant the making of an order under this section.
(3) Where an order is made under subsection (1), it shall be made prior to the childs eighteenth birthday and may be made on an application by (i) the child; or (ii) the parent or guardian of the child; or (iii) a relative of the child; or (iv) the Director: Provided that no order shall be made without the consent of the child, if he is capable of giving such consent, and of the guardian whose appointment is required to be extended.
(4) A court making an order under this section may attach such conditions as to the duration of the order and containing directions as to how it shall be carried out, imposing such other conditions that must be complied with and with such incidental, supplemental or consequential provisions as the court thinks fit.
[Issue 1] 50 [Rev.
2012] CAP.
141 Children (5) A court shall have power to vary, modify or revoke any order made under this section after the childs eighteenth birthday, on the application of any of the persons named in subsection (3), or where the child marries after his eighteenth birthday, his spouse.
108.
Disputes between guardians (1) Where two or more persons act as joint guardians to a child, or where the surviving parent and a guardian act jointly and they are unable to agree on any question affecting the welfare of the child, any of them may apply to the court for its direction, and the court may make orders regarding the matters of difference as it may think proper.
(2) A relative of the child, or the child, or the Director, or a person who has parental responsibility for the child, or a person who has been authorised to act jointly with a guardian under sections 104 and 105, may with the leave of the court, apply to the court for its directions or settlement of any question affecting the welfare of the child arising from or connected with the exercise of the guardians parental responsibility with respect to the child, and the court may make such order regarding the matters in contention as it may think proper.
109.
Powers of guardian A guardian appointed under section 105 shall have the same powers over the estate and the person, or over the estate, as the case may be, of a child, as a guardian appointed by deed or will or otherwise under the Law of Succession Act (Cap.
160).
110.
Neglect or misapplication of assets by guardians of the estate of the child Where a guardian of the estate of a child, whether or not that guardian is also a guardian of the person of the child, neglects to recover or safeguard, or misplaces any asset forming part of the estate of the child, or subjects the estate to loss or damage, he shall whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.
111.
Offence by guardians of the estate of a child Any guardian of the estate of a child who (a) wilfully or recklessly neglects to receive and safeguard any asset forming part of the estate, misapplies any such asset or subjects any such asset to loss, waste or damage; or (b) wilfully fails to produce to the court, or the parent or guardian of the child any account or inventory required by the provisions of section 102; or (c) wilfully or recklessly produces any such inventory or account which is false in any material particular, shall be guilty of an offence and shall be liable to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment.
51 [Issue 1] CAP.
141 [Rev.
2012] Children 112.
Rules The Chief Justice shall make rules of Court directing the manner in which applications to the court are to be made and generally providing for matters of procedure and incidental matters arising under this Part.
PART IX JUDICIAL ORDERS FOR THE PROTECTION OF CHILDREN 113.
Power of court to make orders in certain proceedings (1) The court may make any order mentioned in this Part in any proceedings concerning the welfare and upbringing of a child instituted under this Act or under any other written law.
(2) Persons qualified to apply for an order under this Part for the protection of a child include (a) the child; (b) the parent, guardian or custodian of the child; (c) a relative of the child; (d) the Director; and (e) an authorised officer: Provided that a qualified person may apply for more than one order at the same time, but the court shall not make more than one order in response to the application if to do so would be detrimental to the interest of a child, or if the desired effect of the orders sought by the applicant may be achieved by making only one order.
(3) The court may make an order under this Part (a) containing directions as to how it should be carried out; and/or (b) imposing conditions that must be complied with; and/or (c) defining its duration; and/or (d) attaching such supplementary or consequential provisions as the court may think fit.
(4) An application for an order under this Part may be made separately or as part of any proceedings under this Act.
(5) Subject to the provisions of this Act, any order made under this Part shall cease to have effect upon the child attaining the age of eighteen years.
114.
Orders which court may make The court may from time to time make any of the following orders in this Act referred to as section 114 orders (a) An access order, which shall require the person with whom the child is residing to allow the child to visit, or to stay periodically with the person named in the order, or to allow such person to have such other contact with the child as may be directed by the court: Provided that an access order made under this section shall not be made in relation to a child in respect of whom a care order has been made under this Part, but access to the child concerned may be obtained upon an application made under section 133; [Issue 1] 52 [Rev.
2012] CAP.
141 Children (b) a residence order, which shall require a child to reside with a person named in the order and/or determine the arrangements to be made to facilitate the residence of the child with the person named in the order; (c) an exclusion order requiring a person who has used violence or threatened to use violence against a child, whether or not that person permanently resides with the child, to depart from the home in which the child is residing or to restrain the person from entering the home or a specified part of the home or from a specified area in which the home is included, or to restrain any other person from taking the child to the person against whom the child needs protection for such period as the court may specify; (d) a child assessment order requiring a child to be investigated or evaluated by a person appointed by the court to assist the court in determining any matter concerning the welfare and upbringing of the child; (e) a family assistance order requiring a person appointed by the court to provide such advice, counselling and guidance to a child, his parents or custodian or guardians, the childs relatives, or any person who has care and control of the child or with whom the child is residing, as the court may specify; (f) a wardship order requiring that a child be placed under the protection and custody of the court; (g) a production order requiring any person who is harbouring, concealing or otherwise unlawfully detaining a child, or who intends to remove a child from Kenya or from the local limits of the jurisdiction of the court, to disclose any information regarding the whereabouts of the child and/or to produce the child before the court and/or restraining the person from removing the child from the jurisdiction of the court for such period as the court may specify.
115.
Power of arrest Where a court makes an order under paragraphs (c), (d) and (g) of section 114, the court may attach a power of arrest to the order and the person named in the order shall be liable to arrest if he shall contravene any stipulation or condition contained in the order, whilst the order remains in force.
116.
Penalty Any person who contravenes an order made under paragraphs (c), (d) and (g) of section 114 or who obstructs or unlawfully interferes with a person appointed by the court in the execution of his duties under an order made pursuant to subsections (e) and (f) of section 114, commits an offence and shall be liable upon conviction to a fine not exceeding fifty thousand shillings or to imprisonment for a period not exceeding six months, or to both.
117.
Review, etc., of order The court may from time to time review, vary, suspend or discharge any order made under this Part or revive an order after it has been suspended or discharged.
53 [Issue 1] CAP.
141 [Rev.
2012] Children PART X CHILDREN IN NEED OF CARE AND PROTECTION 118.
Jurisdiction of the court A Childrens Court shall have jurisdiction to make an order or give a judgment under this Part notwithstanding that any act, matter, thing or circumstances giving rise to such order or judgment did not occur or arise within the area of jurisdiction of the court.
119.
When a child is in need of care and protection (1) For the purposes of this Act, a child is in need of care and protection (a) who has no parent or guardian, or has been abandoned by his parent or guardian, or is destitute; or (b) who is found begging or receiving alms; or (c) who has no parent or the parent has been imprisoned; or (d) whose parents or guardian find difficulty in parenting; or (e) whose parent or guardian does not, or is unable or unfit to exercise proper care and guardianship; or (f) who is truant or is falling into bad associations; or (g) who is prevented from receiving education; or (h) who, being a female, is subjected or is likely to be subjected to female circumcision or early marriage or to customs and practices prejudicial to the childs life, education and health; or (i) who is being kept in any premises which, in the opinion of a medical officer, are overcrowded, unsanitary or dangerous; or (j) who is exposed to domestic violence; or (k) who is pregnant; or (l) who is terminally ill, or whose parent is terminally ill; or (m) who is disabled and is being unlawfully confined or ill treated; or (n) who has been sexually abused or is likely to be exposed to sexual abuse and exploitation including prostitution and pornography; or (o) who is engaged in any work likely to harm his health, education, mental or moral development; or (p) who is displaced as a consequence of war, civil disturbances or natural disasters; or (q) who is exposed to any circumstances likely to interfere with his physical, mental and social development; or (r) if any of the offences mentioned in the Third Schedule to this Act has been committed against him or if he is a member of the same household as a child against whom any such offence has been committed, or is a member of the same household as a person who has been convicted of such an offence against a child; or (s) who is engaged in the use of, or trafficking of drugs or any other substance that may be declared harmful by the Minister responsible for Health.
[Issue 1] 54 [Rev.
2012] CAP.
141 Children (2) A child apprehended under this section shall be placed in separate facilities from a child offenders facilities.
(3) The provisions of this section shall be in addition to, and not in derogation of, those of the Penal Code (Cap.
63) in relation to offences involving children, or the Employment Act (Cap.
226) in relation to safeguards for working children.
120.
Proceedings in respect of children in need of care and protection (1) Any person who has reasonable cause to believe that a child is in need of care and protection may report the matter to the nearest authorised officer.
(2) Any child in need of care and protection may take refuge in a place of safety.
(3) Any authorised officer may take to a place of safety any child who is about to be brought before a court as being in need of care and protection, and a child so taken to a place of safety, or who has taken refuge in a place of safety, may be accommodated there until he can be brought before a court.
(4) Any authorised officer having reasonable grounds for believing that a child is in need of care and protection may apprehend him without warrant, and in such a case shall without delay bring him before a Childrens Court; and a childrens officer shall bring before a court any child who appears to such officer to be in need of care and protection unless proceedings are about to be taken by any other person.
(5) Where an application is to be made to a court for an order under section 125 of this Act and the child is not in a place of safety, the court may issue a summons requiring him to be brought before the court, and thereupon the provisions of subsection (3) of that section shall apply for enabling the court to make an interim order for the temporary accommodation of the child in a place of safety or for his temporary committal to the care of a fit person.
(6) Where a court makes an order under subsection (5) it may make such other orders as it deems necessary for the establishment of contact between the child and his parent, or between the child and any person who has parental responsibility for him and for the enforcement of the order.
(7) Where a child is taken to a place of safety by an authorised officer without reference to the court, the parent or guardian or any person who has parental responsibility in respect of the child may apply to the Director for the release of the child from the place of safety into his care: Provided that if the Director refuses an application under this subsection he shall notify the applicant in writing of the decision and the reasons therefor.
(8) Any applicant who is aggrieved by the decision of the Director under subsection (6) may apply to the court for the discharge of the child from the place of safety concerned into the care of such applicant.
(9) Where under the provisions of this section a child is taken to or ordered to be taken to a place of safety, the person who so takes him or, as the case may be, the person bringing him before the court, shall forthwith send a notice to the 55 [Issue 1] CAP.
141 [Rev.
2012] Children court specifying the grounds on which the child is to be brought before the court, and shall send particulars to his parent or guardian or such other person who has parental responsibility over the child requiring such person to attend at the court before which the child will appear.
(10) Where any application is to be made to a court for an order under section 125, the person intending to make the application shall forthwith notify the Director or his representative, of the name and address of the child and the day and hour when, and the nature of the grounds on which, he is to be brought before the court.
(11) The Director having received a notice under subsection (9), shall make such investigations and render available to the court such information as to the home, circumstances, age, health, character and general antecedents of the child or as may be necessary to assist the court.
(12) When it appears to an appointed local authority or a charitable childrens institution that a child in its area is in need of care and protection and that its intervention is necessary, the local authority or charitable childrens institution shall receive such child into its care and need not bring him before a court immediately: Provided that (a) the local authority or charitable childrens institution shall notify the Director within seven days of receiving the child into its care; (b) the child shall be brought before a court within three months; (c) a monthly report is rendered to the Director of all children received and held; (d) all cases are investigated by the local authority, or charitable childrens institution; (e) the local authority or charitable childrens institution shall not retain the child in its care if his parent or guardian seeks to assume the care of the child; (f) the local authority, or charitable childrens institution shall, when it appears to be in the interests of the child, endeavour to secure that the care of the child is assumed by a parent or guardian or a person who has parental responsibility for the child by a relative or friend who should, if possible, be of the same religion, race, tribe or clan as the child.
(13) A local authority or charitable childrens institution which receives a child into its care under the provisions of this section shall be entitled to recover the cost of maintenance of such child from his parent, guardian or the person who has responsibility for the child.
121.
Medical care (1) If it appears to an authorised officer exercising powers under section 120 that a child is in need of medical care, he shall forthwith take the child to a registered health institution, and such health institution shall provide the appropriate treatment, care and necessary hospital accommodation for the child.
[Issue 1] 56 [Rev.
2012] CAP.
141 Children (2) Where a child is accommodated in any health institution for in-patient care the authorised officer who took the child shall forthwith notify the childs parent, or guardian, or any person who has parental responsibility for the child concerned, or the Director or his representative.
(3) Where it appears to any health institution or medical practitioner that any of the offences mentioned in the Third Schedule to this Act have been committed against a child, the health institution or medical practitioner shall forthwith take such measures as shall be necessary to record and preserve any information with regard to the condition of the child in the manner that may be prescribed by the Minister in regulations made under this Part.
(4) Any expenses incurred in connection with the medical treatment or hospital accommodation of a child under this section shall be defrayed out of public funds.
122.
Determination as to childs home, etc.
Whenever a child is brought before a court as being in need of care and protection and the court determines that he has his home or, as the case may be, has been found within the area of jurisdiction of a particular local authority, such determination shall for the purposes of this Act, be final and conclusive: Provided that a court may, whenever it thinks it convenient so to do, remit any such case to another Childrens Court to be dealt with by that court, without prejudice, however, to the provisions of section 43.
123.
Parent or guardian to be heard in any application (1) Where a child is brought before a court as being in need of care and protection, the court shall allow his parent or guardian or the person who has parental responsibility for such child to be heard on any application made in relation to the child.
(2) Where the parent or guardian cannot be found or cannot, in the opinion of the court, be reasonably required to attend, the court may allow any relative or any other responsible person who knows or is known to the parents or any relative of the child to take the place of the parent or guardian for the purposes of this section.
124.
Power of Director to take over application The Director of Public Prosecutions may authorise the Director at any stage in the proceedings under this Part, whether before, during or after the making of any application, to take over and assume the conduct of any application or proceedings in respect of a child: Provided that the Director of Public Prosecutions shall not be entitled to terminate any proceedings over which he has authorised the Director to assume control under this section without the leave of the court.
[Act No.
12 of 2012, Sch.] 125.
Power of court in respect of children in need of care and protection (1) A court before which any child in need of care and protection is brought may require an authorised officer or any other person to give a report or advise on any aspect of the proceedings.
57 [Issue 1] CAP.
141 [Rev.
2012] Children (2) If a court is satisfied that a child brought before it is in need of care and protection it may (a) order that such child be returned to his parent or guardian or the person who has parental responsibility for him; (b) order such childs parent or guardian, or person who has parental responsibility for him to execute a bond with or without sureties to exercise proper care and guardianship; (c) where it is satisfied that it is in the best interests of the child, commit such child to a rehabilitation school suitable to his needs and attainments after the court has ascertained that there is a vacancy at the school; or (d) without making any other order, or in addition to making an order under this section, make an order under Part IX; or (e) if the child is a victim of armed conflict, civil disturbance or natural disaster make an order requiring the Director to take the necessary steps to ensure that the child is provided with care, and where possible, is reunited with his family; or (f) if the child is disabled, make an order which requires the Director to take the necessary steps to ensure that the child is provided with care commensurate with his special needs; or (g) if the child is subjected to early marriage, make an order rendering such marriage null and void ab initio and requiring the child to be placed under the care of a fit person and to return to school; or (h) where it is satisfied that the child has been engaged in drug abuse and that it is in the childs best interest to do so, by order commit him to a drug rehabilitation centre for treatment, or order that the child be accorded professional counselling.
(3) A parent who is ordered to exercise proper care and guardianship under subsection (2)(b) shall also be required to seek the assistance of a professional counsellor.
(4) The court may from time to time, of its own motion or on the application of any person, review, vary or revoke any order made under this section.
(5) The court may order that a child shall remain in the custody of an appointed local authority, a charitable childrens institution or a fit person until the age of eighteen years or such lesser age as the court may decide.
(6) If a court before which a child is brought is unable to decide whether any order, or what order ought to be made in respect of the child, it may make such interim order as it thinks fit for the childs accommodation in a place of safety not being a police station, or for his committal to the care of a fit person whether a relative or not who is willing to undertake the care of the child.
(7) An interim order under subsection (1) shall not remain in force for more than fourteen days, but if at the expiration of that period the court deems it expedient so to do, it may continue to make further interim orders.
[Issue 1] 58 [Rev.
2012] CAP.
141 Children 126.
Application of trusts for maintenance of children (1) Where a child is, by an order of the court made under this Part, removed from the care of any person, and that person is entitled under any trust to receive any sum of money in respect of the childs maintenance, the court may order the whole or any part of the sums so payable under the trust to be paid to the person, childrens voluntary institution or appointed local authority to whose care the child is committed, to be applied for his benefit in such manner as the court, having regard to the terms of the trust, may direct.
(2) A person making default in complying with an order of the court made under this section shall be punished in the prescribed manner, or if no punishment is prescribed, may at the discretion of the court be ordered to pay a sum not exceeding two hundred shillings for every day during which such person is in default, or to be imprisoned or dealt with under section 144(5) until the default has been remedied.
(3) An appeal shall lie to the High Court from an order made under this section.
127.
Penalty for cruelty to and neglect of children (1) Any person who having parental responsibility, custody, charge or care of any child and who (a) wilfully assaults, ill-treats, abandons, or exposes, in any manner likely to cause him unnecessary suffering or injury to health (including injury or loss of sight, hearing, limb or organ of the body, and any mental derangement); or (b) by any act or omission, knowingly or wilfully causes that child to become, or contributes to his becoming, in need of care and protection, commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding five years, or to both: Provided that the court at any time in the course of proceedings for an offence under this subsection, may direct that the person charged shall be charged with and tried for an offence under the Penal Code (Cap.
63), if the court is of the opinion that the acts or omissions of the person charged are of a serious or aggravated nature.
(2) For the purposes of this section, a person having parental responsibility, custody, charge or care of a child shall be deemed to have neglected such child in a manner likely to cause injury to his health if the person concerned has failed to provide adequate food, clothing, education, immunisation, shelter and medical care.
(3) Any person charged under this section may be charged before the same court as that before which is brought as being in need of protection or discipline and at the same time and both issues shall be tried simultaneously and the same court shall sentence the person charged, if convicted, and make an order under section 125 if the child is found to be in need of care and protection.
59 [Issue 1] CAP.
141 [Rev.
2012] Children (4) A person may be convicted of an offence under this section notwithstanding that actual suffering or injury to health, or the likelihood of actual suffering or injury to health, of the child was obviated by the action of another person, or the child in question has died.
(5) Nothing in this section shall affect the right of any parent or other person having the lawful control or charge of a child to administer reasonable punishment on him.
128.
Warrants for search of children (1) If it appears to a magistrate on information laid by at least two persons who, in the opinion of the magistrate are acting in the interests of a child, that there is reasonable cause to suspect (a) that one of the offences specified in the Third Schedule has been or is about to be committed against a child; or (b) that a child is in need of care and protection, the magistrate may issue a warrant authorising any police officer of or above the rank of Inspector and named therein to search for the child, and, if it appears to such police officer that any offence as aforesaid has been or is being or is about to be committed against the child or that he is in need of care and protection, to take him to and accommodate him in a place of safety until he can be brought before a court.
(2) Any police officer of or above the rank of Inspector authorised by warrant under this section to search for any child may enter (if need be by force) any house, building or other place specified in the warrant, and, subject as aforesaid, may remove the child therefrom.
(3) A police officer executing a warrant under this section shall take with him any person laying or joining in laying information who desires to accompany the officer, unless the magistrate issuing the warrant otherwise directs, and may also, if such magistrate so directs, be accompanied by a medical practitioner.
(4) It shall not be necessary in any information or warrant under this section to name the child.
(5) A magistrate issuing a warrant under this section may by the same warrant cause any person accused of an offence against the child to be apprehended and brought before a court, and proceedings to be taken against such person according to law.
(6) A refusal to allow the Director, a childrens officer or an approved officer to enter any place or dwelling in the exercise of his powers under this Act shall for the purposes of subsection (1) of this section be deemed to be a reasonable cause to suspect that a child therein is in need of care and protection.
(7) The provisions of this section shall be in addition to, and not in derogation of those of the Criminal Procedure Code (Cap.
75) in relation to entry of premises and arrest of persons.
[Issue 1] 60 [Rev.
2012] CAP.
141 Children 129.
Arrest without warrant A police officer may arrest without warrant any person who he has reason to believe has committed any offence under this Part or any other offence involving bodily injury to a child, if the police officer has reasonable ground for believing that the person will abscond, or if he does not know and is unable to immediately ascertain the persons name and address.
Supervision and Care Orders 130.
Supervision order The court may make an order (in this Act referred to as a supervision order) placing the child under the supervision of a childrens officer or an authorised officer whilst allowing the child to remain in the care and possession of his parent, guardian, custodian or any other person with whom the child is residing.
131.
Preliminary inquiries (1) Prior to making a supervision order the court shall procure that (a) such enquiries or investigations as may be prescribed by the rules made under this Part are carried out and in particular that a welfare report is availed to the court; and (b) written notice of the proceedings is given to the parent, guardians, custodian or any other person with whom the child is residing.
(2) A supervision order shall not remain in force for a period exceeding twelve months, but the court may upon the application of the supervisor vary, discharge, or extend the order for a further period as it shall deem expedient, having regard to the best interests of the child: Provided that the court shall not make an order extending a supervision order unless notice of the relevant application has been given to the parents, or guardians of the child or any other person having parental responsibility in respect of the child, who may be heard on the application.
(3) A court may make an interim supervision order, either on application or of its own motion (a) where it has reason to believe that the circumstances of the child concerned require that an order be made pending the submission of a welfare report prepared in accordance with subsection (1); or (b) upon adjourning an application for a supervision order; or (c) upon the making of orders for the assessment of the child under section 113.
(4) Where an interim order is made, it shall not remain in force for a period exceeding eight weeks, but at the expiration of that period the court if it deems it expedient so to do, may continue to make further interim orders.
(5) A court which has made a supervision order or an interim supervision order may vary or discharge the same upon the application of (a) the child with the leave of the court; (b) the parents or custodian of the child or any person with parental responsibility in respect of the child; or 61 [Issue 1] CAP.
141 [Rev.
2012] Children (c) the supervisor; or (d) any person with whom the child is living in so far as the order imposes a requirement that directly affects that person.
(6) Where a child in respect of whom any order is made under this section attains the age of eighteen years the order shall automatically be discharged.
132.
Care order and grounds thereof (1) In this Part a care order means an order entrusting the care, control and possession of the child to a person not being the parent, guardian or custodian of the child or to an appointed local authority or an institution appointed by the court.
(2) A court may make a care order in respect of a child only if it is satisfied that (a) all possible alternative methods for assisting the child have been unsuccessful and that it is in the best interests of the child to make the order; or (b) the child concerned is suffering or is likely to suffer significant harm, and that the harm, or probability of harm is attributed to (i) the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child; (ii) the child is beyond the control of his parent, guardian or other person who has parental responsibility in respect of the child; (c) the danger to which the child is exposed is so severe as to require his immediate removal from the place where he is residing.
(3) Where a court makes a care order or an interim care order in respect of any child, the court may include in the order such conditions, restrictions and directions as it shall deem fit, as to the enforcement of the order by any person or as to the conduct of the child or any person named in the order.
(4) The court making a care order shall as far as shall be practicable entrust the care of the child to a person or institution which professes the same religion as the child.
(5) Where a child is disabled, the court shall as far as practicable entrust the care of the child to a person or institution that is suitably placed to cater for the needs of the child.
(6) Every care order shall be in writing and shall contain a declaration as to age and religion of the child concerned and may be made in his absence with the consent of the person or institution into whose care the child has been entrusted.
(7) The court making a care order shall cause to be delivered to the person or institution entrusted with the care of the child, a record in the prescribed form containing such information regarding the child concerned as the court thinks necessary.
[Issue 1] 62 [Rev.
2012] CAP.
141 Children (8) Every care order shall be made so as to commit a child to such care until he attains the age of eighteen or for such shorter period as the court thinks fit: Provided that the court, on making a care order, shall make such further orders or directions requiring the Director or his representative to supervise the mode of compliance with such orders and to make such recommendations as the Director or his representative shall consider relevant to the court in respect of the order, including applying for the variation or discharge of the order.
(9) Upon the making of a care order under this section, it shall be the duty of the Director or his representative to supervise and monitor the care provided to the child concerned by the person or institution to whom or to which the child is committed under the order, and to periodically assess the condition and circumstances of the child.
(10) A court may on application or of its own motion, make an interim care order (a) if it has reasonable grounds for believing that the circumstances of the child are as mentioned in subsection (1) of this section; or (b) upon the adjournment of an application for a care order; or upon making orders as to the assessment of a child under section 113.
(11) An interim order made under subsection (10) shall not remain in force for a period exceeding eight weeks, but if at the expiry of the period the court deems it expedient so to do, it may extend the order for a further period of four weeks.
(12) A care order or interim care order may be discharged by (a) the making of an adoption order in respect of the child, if the care order was not made in respect of the child by reason of the child having been found to be guilty of a criminal offence under Part XII; (b) the making of a residence order in respect of the child; (c) the making of a supervision order in respect of the child.
Notwithstanding the foregoing provisions of this subsection, the court shall have power on the application of the child, the Director or the parents or guardian of the child, or any other person who has parental responsibility in respect of the child to vary or discharge the care order or interim order on such terms as it thinks fit and including replacing the care order with a supervision order.
(13) The court shall have power, where it considers that it would be for the benefit of a child, to authorise a foster parent or a voluntary childrens institution, to whose care a child has been committed, to arrange for the childs emigration from Kenya, but the court shall not authorise such arrangements unless the child and his parents or guardian or any other person who has parental responsibility for the child, consent: Provided that where the parents or guardians cannot be found after diligent and reasonable enquiry, the Director may give such consent.
133.
Arrangements for access to children in care (1) Prior to making a care order, the court shall consider the arrangements the Director has made or proposes to make for affording any individual contact with the child during the term of a care order, and shall invite the parties to the 63 [Issue 1] CAP.
141 [Rev.
2012] Children proceedings to comment on the said arrangements and or to make such applications for contact in the manner prescribed in subsection (4).
(2) Unless a court otherwise directs or it is determined that such contact would be detrimental to the best interests of the child, there shall be a rebuttable presumption of reasonable contact between the child and (a) the childs parent or guardian; (b) any person who has parental responsibility in respect of the child; (c) the relatives of the child; (d) such other person as the court shall direct.
(3) Where the court makes an access order under this section it shall determine the frequency and duration of access to the child subject to such conditions as the court may consider appropriate.
(4) The Director or the child, with the leave of the court, may apply to the court for refusal of access to any individual and upon such application the court, if satisfied that such contact between the child and any individual should be refused shall make an order authorising the Director to refuse to allow contact between the child and the person named in the order.
(5) A court making a contact order under this section shall have power to vary, suspend or discharge the order or revive the order after it has been discharged on such terms as it shall deem fit; but no contact order shall remain in force beyond the childs eighteenth birthday or after the date of a discharge of a care order.
134.
Contents of care order Where a care order to a rehabilitation school has been made by a court against a child, on a finding of guilt of an offence, the committal order shall specify the grounds of the order and (a) contain a declaration as to the age and religion of the child; (b) specify the rehabilitation school to which he is to be sent; (c) specify the person or authority that is to convey the child to the school; (d) contain directions as to any special care or treatment required for the child; (e) contain directions as to access arrangements for the child by his parent, guardian or relative; and (f) specify details of any contribution order made against the parents or the guardian of the child and the dates upon which accounts shall be supplied to them.
135.
Transmission of order The Court making a care order to a rehabilitation school shall send such order together with a record in the prescribed form of such information regarding the child placed in care as the court thinks necessary, to the manager of the rehabilitation school.
[Issue 1] 64 [Rev.
2012] CAP.
141 Children 136.
Production of child Where a person authorised to escort a child to a rehabilitation school is unable to find or obtain possession of the child, the court may, if satisfied by information on oath that some person named in the information can produce the child, issue a summons requiring the person so named to attend at the court on a specified day and produce the child and, if the person so summoned fails without reasonable cause to attend, in addition to any other liability to which he may be subject under the provisions of any law including this Act, he commits an offence and is liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding one year or to both.
137.
Harbouring or concealing a child Where a child has been placed under care in a rehabilitation school any person who harbours or conceals him after the time fixed for him to enter the rehabilitation school commits an offence and is liable on conviction to imprisonment for a term not exceeding one year or a fine not exceeding fifty thousand shillings or to both.
Escapees 138.
Escape from institutions, etc.
A child who runs away from a fit person, charitable childrens institution or appointed local authority to whose care the child has been entrusted under this Act, or from any person or institution with whom he has been placed by a charitable childrens institution, or appointed local authority under any regulations made under this Act, may be apprehended without warrant and be brought before a Childrens Court having jurisdiction in the place where he was residing immediately before he ran away, and that court may (i) order that the child be returned to where he ran away from; or (ii) place him under the care of some other person or charitable childrens institution; or (iii) order him to be sent to a rehabilitation school; or (iv) make any order which a court may make under section 125; or (v) make an order requiring the child to undergo professional counselling.
139.
Charitable childrens institutions and local authorities Whenever a child runs away from any person or institution with whom or with which he has been placed by a charitable childrens institution or appointed local authority, as aforesaid, it shall be the duty of the secretary, clerk or other appropriate officer of such institution or authority, within forty-eight hours of such occurrence coming to his knowledge, to notify the Director thereof; and any secretary, clerk or other officer who contravenes the provisions of this subsection commits an offence and is liable on conviction to a fine not exceeding five thousand shillings or imprisonment for a term not exceeding three months or to both.
65 [Issue 1] CAP.
141 [Rev.
2012] Children 140.
Escape from childrens remand home or rehabilitation school (1) Any child who escapes from a childrens remand home or while being conveyed thereto or therefrom, may be apprehended without warrant and dealt with in accordance with section 138.
(2) Any child who has been committed to a rehabilitation school and who (a) escapes from such school or from any hospital, home or institution in which he is receiving medical or other treatment, or while being conveyed to or from any such place; or (b) being absent from such school on leave of absence or on licence, runs away from the person in whose charge the child has been placed or fails to return to the school upon the expiration of his leave or upon the revocation of his licence, may be apprehended without warrant and shall be brought before a court having jurisdiction where the school is situated to be dealt with under the provisions of section 138.
(3) Where a child is brought back to a rehabilitation school under subsection (2), the period of his committal shall be increased over and above any increase ordered by court, by a period equal to the period during which he was at large and should have been at the school.
141.
Assisting escape, etc.
Any person who knowingly (a) assists or induces a child (i) to run away from a fit person, a charitable childrens institution or appointed local authority to whose care the child has been committed, or from any person or institution with whom or with which he has been placed by a charitable childrens institution or an approved appointed local authority under or by virtue of this Act or any regulations made thereunder; or (ii) to do any of the things specified in section 140(2); or (b) harbours or conceals a child who has so run away or has done any such things as aforesaid; or (c) prevents such a child from returning, or induces such a child not to return, to the care of the person to whom he has been committed, or to any place in which he should be, commits an offence and is liable on conviction to imprisonment for a term not exceeding one year, or to a fine of fifty thousand shillings, or to both.
142.
Production of escaped child If a Childrens Court is satisfied by information on oath that there are reasonable grounds for supposing that a child has run away or done any of the things specified in section 140, and that some other person named in the information can produce the child, the court may issue summons requiring that other person to attend at the court and produce the child and, if the person fails to do so without reasonable excuse, he commits an offence, and in addition to [Issue 1] 66 [Rev.
2012] CAP.
141 Children any other liability to which he may be subject under this Act, is liable on conviction to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.
Miscellaneous Provisions on Protection of Children 143.
Presumption and determination of age (1) Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that such person is under eighteen years of age, the Court shall make due inquiry as to the age of that person and for that purpose shall take such evidence, including medical evidence, as it may require, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act and of all proceedings thereunder, be deemed to be the true age of the person.
(2) A certificate purporting to be signed by a medical practitioner as to the age of a person under eighteen years of age shall be evidence thereof and shall be receivable by a court without proof of signature unless the court otherwise directs.
144.
Contribution order (1) A court making an order placing a child under the care of a rehabilitation school may also, at the same time or subsequently, make an order (hereinafter referred to as a contribution order) requiring either or both of the parents or the guardian to contribute such sums for such periods as the court shall think fit towards the maintenance of the child concerned.
(2) The contribution order shall name the person to whom the sums are to be paid.
(3) A contribution order may be made on the complaint or application of a person, to whose care the child has been, or the manager of the rehabilitation school to which the child has been ordered to be sent, and may require that contributions shall be made from the date of the order placing the child under care; and every sum contributed in accordance with the order shall be applied to or towards his maintenance.
(4) A court which has made a contribution order under this section may at any time vary, suspend or rescind the order, or revive the order after it has been rescinded, but no contribution order shall be made, varied, suspended, rescinded, or revived unless the court is satisfied that the person liable to make payments under the order and the person, or manager of the rehabilitation school to whom such payments are due, or are to become due, has received due notification of the complaint or application and had an opportunity to appear before the court on the hearing thereof.
(5) Arrears of contribution shall be recovered in the manner provided in sections 334 to 342 of the Criminal Procedure Code (Cap.
75) for the levying of fines imposed by a court in criminal proceedings, and the court shall be 67 [Issue 1] CAP.
141 [Rev.
2012] Children empowered to make an attachment order against the defaulters salary or other source of income, subject always to any written law protecting pensions or other sources of income from attachment.
(6) A person against whom a contribution order has been made shall, if he changes his address, forthwith give notice thereof to the person entitled to receive the contribution, and if he fails to do so shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or imprisonment for a term not exceeding one month or to both.
(7) Any institution or person who receives payment of any moneys under a contribution order shall keep proper accounts in respect of such moneys and shall furnish the parents or guardian liable to make such payments with accounts in respect of the same on a quarterly basis, or in respect of such lesser period as the court may direct, throughout the duration of the order.
(8) Any person who fails to comply with the provisions of subsection (7) commits an offence and shall upon conviction be liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a period not exceeding five years, or to both.
145.
International reciprocity (1) It shall be lawful for the Minister, with the approval of the National Assembly, to enter into an agreement with the government of any other country or territory on such terms and conditions as he may think fit, whereby a child who has been ordered by a court under the provisions of this Act to be sent to a rehabilitation school or other institution or committed to the care of a fit person, may be received into that country or territory and then placed in a rehabilitation school or other institution approved under the relevant legislation of that country or territory or received into the care of a fit person or returned to his parent or guardian.
(2) Any child who has been ordered under the provisions of this Act to be placed in a rehabilitation school or any other institution, or committed to the care of a person, may, while still subject to such order, by warrant signed by the Minister, be removed from custody of such an institution or person into any other country or territory with which an agreement has been concluded under subsection (1), and placed in a rehabilitation school or other institution, placed in the care of a fit person, or of his parent or guardian, in accordance with the law in force in the country or territory authorising such placement until the expiration of the order or until such child is sooner released according to law.
(3) An order of a court of a country or territory with which an agreement has been entered into in accordance with the provisions of subsection (2) which could lawfully have been made by a court in Kenya if the person had been within its jurisdiction, shall upon the person being received in Kenya have the same effect and be enforceable as if the order had been made by a court in Kenya.
146.
Bonds The provisions of the Criminal Procedure Code (Cap.
75) with respect to bonds for good behaviour (including the provisions as to their enforcement) shall apply to bonds entered into under this Act.
[Issue 1] 68 [Rev.
2012] CAP.
141 Children PART XI FOSTER CARE PLACEMENT 147.
Conditions for foster care placement (1) Where a child has, by virtue of a care order, been committed to a rehabilitation school or to a charitable childrens institution, the Director in conjunction with the manager of the institution may place the child with a foster parent, for such period as the Director may from time to time authorise: Provided that a child in relation to whom a care order has been made by reason of having been found guilty of a criminal offence, shall not be placed with a foster parent without the leave of the court.
(2) When a child has been placed in the care of a foster parent, it shall be the duty of the manager of the institution to which the child was first committed under a care order to supervise and assess the condition of the child periodically and to take such steps as shall be necessary to safeguard the welfare of the child.
(3) A foster parent in whose care a child is committed shall, while the child remains in his care, have the same responsibilities in respect of the childs maintenance as if he were the parent of the child.
(4) The provisions of this Part shall cease to have effect in relation to a child (a) upon the discharge of the care order; (b) upon the expiry of the period specified by the Director for the duration of the foster placement of the child; (c) upon the child attaining the age of eighteen years.
148.
Persons qualified to foster children (1) Any of the following persons may apply to be appointed a foster parent or foster parents (a) Spouses of a marriage; (b) a single woman not below the age of twenty-five years; (c) a single man not below the age of twenty-five years.
(2) No single man may qualify to foster a female child and no single woman may qualify to foster a male child under this Part.
(3) No person shall be appointed to be a foster parent unless the person is resident in the Republic of Kenya and has been so resident for a period of at least twelve months.
(4) A foster parent shall not remove a child from the jurisdiction of the Republic of Kenya without the leave of the court and such leave shall only be granted upon exceptional circumstances being shown.
(5) Where such leave is granted, the court shall impose such conditions and restrictions as it shall deem appropriate having regard to the best interests of the child.
69 [Issue 1] CAP.
141 [Rev.
2012] Children 149.
Registration for foster care placement No person shall, for the purposes of fostering a child, retain a child in his care and possession whose parents, custodian or guardians cannot be readily identified, without first notifying the Director.
150.
Agreement for maintenance of foster child (1) The Director may, on the request of the foster parent or the parent or guardian of a child, arrange an agreement between the foster parent and the parent or guardian of a child placed in foster care, stipulating the maintenance payable for the childs care.
(2) Any maintenance agreement may be enforceable by the Director in the like manner as a maintenance order under section 101.
151.
Penalty for contravening provisions of this Part A person who, without reasonable cause, contravenes the provisions of this Part commits an offence and is liable on conviction to a fine not exceeding twenty thousand shillings or of imprisonment to a term not exceeding two years or both.
152.
Rules Foster care placement shall be made in accordance with the rules set out in the Fourth Schedule to this Act.
153.
Amendment of rules The Chief Justice may amend the rules set out in the Fourth Schedule to this Act.
PART XII ADOPTION 154.
Power to make adoption orders (1) Subject to this Act, the High Court may upon an application made to it in the prescribed form make an order (in this Act referred to as adoption order) authorising an applicant to adopt a child.
(2) All proceedings under this Part shall be heard and determined in chambers and the identity of the child and the applicants shall be kept confidential.
155.
Establishment of Adoption Committee (1) The Minister shall establish a committee to be known as the Adoption Committee which shall comprise the members set out in the Ninth Schedule.
(2) The functions of the Committee shall be (a) formulating the governing policy in matters of adoption; (b) effecting liaison between adoption societies, the Government and Non-Governmental Organisations; (c) considering and proposing names of officers who may serve as guardians ad litem; [Issue 1] 70 [Rev.
2012] CAP.
141 Children (d) monitoring adoption activities in the country; and (e) such other functions as are conferred on the Committee by this Act.
(3) The conduct and regulation of the affairs of the Committee shall be as prescribed by the Minister, but subject thereto, the Committee shall regulate its own proceedings.
Pre-requisites for Adoption 156.
Preliminaries (1) No arrangement shall be commenced for the adoption of a child unless the child is at least six weeks old and has been declared free for adoption by a registered adoption society in accordance with this rules prescribed in that behalf.
(2) It shall not be lawful for any person whether being a parent or guardian of a child or otherwise, or for an adoption society by whom arrangements for adoption of a child are made, to place a child into the care and possession or control of a person who proposes to adopt him, if an adoption order in respect of the child cannot be lawfully made in favour of that person.
(3) Any person who contravenes the provisions of this section shall be guilty of an offence and liable to imprisonment for a term not exceeding six months or to a fine not exceeding ten thousand shillings or to both.
157.
Children who may be adopted (1) Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was or was not born in Kenya: Provided that no application for an adoption order, shall be made in respect of a child unless the child concerned has been in the continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the filing of the application and both the child and the applicant or applicants, as the case may be evaluated and assessed by a registered adoption society in Kenya.
(2) Any person who contravenes the provision of subsection (1) of this section shall be guilty of an offence and liable to imprisonment for a term not exceeding one year or to a fine not exceeding twenty thousand shillings or to both such imprisonment and such fine.
158.
Adoption applicants (1) An adoption order may be made upon the application of a sole applicant or jointly by two spouses where the applicant or at least one of the joint applicants (a) has attained the age of twenty-five years and is at least twenty-one years older than the child but has not attained the age of sixty-five years; or (b) is a relative of the child; or (c) is the mother or father of the child.
71 [Issue 1] CAP.
141 [Rev.
2012] Children (2) An adoption order shall not be made in favour of the following persons unless the court is satisfied that there are special circumstances that justify the making of an adoption order (a) A sole male applicant in respect of a female child; (b) a sole female applicant in respect of a male child; (c) an applicant or joint applicants who has or both have attained the age of sixty-five years; (d) a sole foreign female applicant.
(3) An adoption order shall not be made if the applicant or, in the case of joint applicants, both or any of them (a) is not of sound mind within the meaning of the Mental Health Act (Cap.
248); (b) has been charged and convicted by a court of competent jurisdiction for any of the offences set out in the Third Schedule to this Act or similar offences; (c) is a homosexual; (d) in the case of joint applicants, if they are not married to each other; (e) is a sole foreign male applicant: Provided that the court may refuse to make an adoption order in respect of any person or persons if it is satisfied for any reason that it would not be in the best interests of the welfare of the child to do so.
(4) Subject to section 159 an adoption application shall be accompanied by the following written consents to the making of an adoption order in respect of any child (a) the consent of every person who is a parent or guardian of the child or who is liable by virtue of any order or agreement to contribute to the maintenance of the child; (b) in the case of a child born out of wedlock whose mother is a child, with the consent of the parents or guardian of the mother of the child; (c) in the case of a child born out of wedlock whose father has acquired parental responsibility in respect of the child under the provisions of this Act, with the consent of the father; (d) on the application of one of the spouses, with the consent of the other spouse; (e) in the case of two spouses who are not Kenyan citizens and who are not resident in Kenya, with the consent of the court of competent jurisdiction or of a government authority situated in the country where both or one of the spouses is ordinarily resident, permitting the spouses to adopt a foreign child; (f) in the case of a child who has attained the age of 14 years, with the consent of the child.
[Issue 1] 72 [Rev.
2012] CAP.
141 Children 159.
Power to dispense with consent (1) The court may dispense with any consent required under paragraphs (a), (b), and (c) of subsection (4) of section 158 if it is satisfied that (a) in the case of the parents or guardian of the child, that he has abandoned, neglected, persistently failed to maintain or persistently ill-treated the child: Provided that (i) abandonment may be presumed if the child appears to have been abandoned at birth or if the person or institution having care and possession of the child has neither seen nor heard from a parent or guardian of the child for a period of at least six months; (ii) persistent failure to maintain may be presumed where despite demands made, no parent or guardian has contributed to the maintenance of the infant for a period of at least six consecutive months and such failure is not due to indulgence; (b) in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the child, that he has persistently neglected or refuses to so contribute; (c) in any case, except in respect of the consents required under paragraphs (e) and (f) of subsection (4) of section 158 that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent has been unreasonably withheld.
(2) The court may dispense with the consent of the spouse of the applicant for an adoption order if satisfied that the person whose consent is to be dispensed with, cannot be found or is incapable of giving consent, or that the spouses have separated or divorced and are living apart and that such separation is likely to be permanent.
(3) The consent of any person to the making of an adoption order in pursuance of an application may be given (either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is to be brought up) without knowing the identity of the applicant for the order; and where the consent so given by any person is subsequently withdrawn on the grounds only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to have been unreasonably withheld.
(4) In considering whether or not to dispense with the consent of any person to the making of an adoption order, or whether to grant leave or refuse leave under the provisions of subsections (1) and (2) of this section, the court shall regard the interests of the child as paramount and subject thereto, shall consider firstly the interests of the parents, guardians or relatives of the child and secondly the interests of the applicants.
(5) Any persons consent to the making of an adoption order, may be withdrawn prior to the filing of the application without the leave of the court and with the leave of the court any time after the filing of the application for the adoption order but prior to the making of the order: Provided that the court may at the request of the person withdrawing the consent keep his name and identity confidential.
73 [Issue 1] CAP.
141 [Rev.
2012] Children (6) Where any person whose consent to the making of the adoption order is required by section 158 does not attend the proceedings for the purposes of giving it, then subject to the provisions of subsection (7) of this section a document in the prescribed form and attested by a person of such class as may be prescribed signifying his consent to the making of such order shall, if the person in whose favour the order is to be made is named in the document or (where the identity of the person is not known to the consenting party) is distinguished therein in the prescribed manner, be admissible as evidence of that consent, whether the document is executed before or after the commencement of the proceedings.
(7) Any document, whether executed in or outside Kenya, shall be admissible without further proof of the signature of the person by whom it was executed, and for the purposes of this subsection a document purporting to be attested as aforesaid, shall be deemed to be so attested and executed on the date and at the place specified therein unless the contrary is proved.
(8) A document signifying the consent of the mother of the child, shall not be admissible under this section unless (a) the child is at least six weeks old on the date of the execution of the document; (b) the document is attested by a person of the class prescribed for the purposes of subsection (2).
Guardian ad litem 160.
Guardian ad litem for the child (1) For the purposes of any application for an adoption order, the court shall upon the application of the applicant or of its own motion, appoint a guardian ad litem for the child pending the hearing and determination of the adoption application.
(2) It shall be the duty of the guardian ad litem to (a) safeguard the interests of the child pending the determination of the adoption proceedings; (b) investigate and apprise the court as to the circumstances pertinent to the adoption of the child in the prescribed manner; (c) make recommendations as to the propriety of making any interim orders or an adoption order in respect of the child; (d) intervene on behalf of the child and arrange for the care of the child in the event of the withdrawal of any consent prescribed by this Act; (e) undertake such duties as the court may from time to time direct or as may be prescribed by the rules made under this Part.
(3) Where arrangements for the adoption of any child have been made by an adoption society, neither the society nor any member thereof, shall be appointed guardian ad litem of that child for the purposes of its adoption.
(4) The appointment of a guardian ad litem shall expire upon the making of a final order by the court under this Part unless the court, having regard to the interests of the child, extends the period of the appointment.
[Issue 1] 74 [Rev.
2012] CAP.
141 Children (5) Without prejudice to the generality of subsection (4), where an appeal is lodged against a final order by the court under this Part, the court shall have power to extend the appointment of a guardian ad litem until the date of the determination of the appeal.
Interim Orders 161.
Interim orders (1) Whilst an application for an adoption order is pending in court (a) any person who has given his consent to the adoption shall not be entitled, except with the leave of the court, to remove the child concerned from the care and control of the applicant; (b) the applicant who has received a child into his care for the purposes of an adoption shall not without the leave of the court remove the child from Kenya and where an application is made for such leave, the court may only make an order if it is satisfied that (i) exceptional circumstances in relation to the health, welfare and safety of the child exist; (ii) the written consent of the parents or guardian of the child (if they are living or can be found) to the removal of the child from Kenya has been obtained; and (iii) a welfare report has been made by parents or the guardian of the child (if they are living or can be found) to the removal of the child from Kenya has been obtained; and (c) where a court makes an order under this paragraph the court shall make a wardship order in respect of the child and shall cause the applicant to execute a security bond with or without sureties requiring that the child be returned to Kenya by the applicant within such period as may be specified by the court and may make such other arrangements as it shall deem fit to secure the return of the child to Kenya; (d) any person who fails without any reasonable or justifiable cause to return a child to Kenya within the period specified by an order issued under this section shall be guilty of an offence and liable to imprisonment for a term not exceeding three years, or to a fine not exceeding two hundred thousand shillings, or to both.
(2) The court may, upon the application of the applicant or an adoption society or the parent or guardian of the infant or the appointed guardian ad litem, or of its own motion, make such interim orders as appear just in respect to the legal custody, maintenance, access, education, residence, safety, or welfare of the child generally and parental responsibility in respect of the child, and may direct that such proceedings be taken for placing the child under the protection of the court.
(3) All such consents as are required for an adoption order shall be necessary for an interim order but subject to a like power on the part of the court to dispense with any such consent.
(4) An interim order shall not be made in any case where the making of an adoption order would be unlawful.
75 [Issue 1] CAP.
141 [Rev.
2012] Children (5) An interim order shall not be deemed to be an adoption order within the meaning of this Act.
International Adoptions 162.
International adoptions An adoption order may be made in respect of a child upon the joint application of two spouses who are not Kenya citizens and not resident in Kenya (in this Act referred to as an international adoption) if they (a) have obtained the consents specified in paragraph (e) of subsection (4) of section 158; and (b) have satisfied the court that the country where they ordinarily reside and where they expect to reside with the child immediately after the making of the adoption order will respect and recognise the adoption order and will grant resident status to the child; and (c) have been authorised and recommended as persons who are suitable (including being morally fit and financially capable) to adopt a foreign child by a competent government authority or court of competent jurisdiction in the country where they expect to reside with the child immediately after the making of the adoption order.
Powers of the Court on Adoption Application 163.
Powers of the court (1) The court before making an adoption order shall be satisfied (a) that every person whose consent is necessary under this Part, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which the application is made, and in particular in the case of a parent, understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights; (b) that the order if made will be in the best interests of the child, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child, and to the ability of the applicant to maintain and educate the child; (c) that the applicant has not received or agreed to receive, and that no person had made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption; (d) that any person whose consent is dispensed with on the grounds of incapacity is still incapable of giving consent at the date of making the order; (e) where the applicant is not a relative of the child, that reasonable steps have been taken to inform the relatives of the child of the proposed adoption and no relative able to accept the care of the child has expressed willingness to do so; and [Issue 1] 76 [Rev.
2012] CAP.
141 Children (f) that both the applicant and the child have been assessed and evaluated by a registered adoption society in Kenya in accordance with the regulations made by the Minister and such report has been availed to the court.
(2) The court may impose such terms and conditions as it may think fit and, without prejudice to the generality of the foregoing, it may (a) require the adopter by bond or otherwise to make for the child such provision as in the opinion of the court just and expedient; (b) order that the child shall not be removed from the jurisdiction of the court without the consent of the court for such period as the court may specify; (c) require the adopter to accept supervision by and advice from an adoption society specified by the court for such period as the court may specify; (d) where the consent to the making of an adoption order is conditioned upon the child being brought up in a particular religious persuasion, require the infant to be brought up in that persuasion; (e) require the adopter to furnish such security by bond or otherwise as the court may think fit for the due performance of any condition that the court may impose; (f) where the adopter is not a resident of Kenya or a citizen of Kenya, require him to avail such periodical reports from a court or competent authority in the adopters country of residence for such period as the court may specify.
164.
Power to appoint guardian (1) The court at the time of making an adoption order may, upon the application of the adopter, or of its own motion, or in the case of applicants for an international adoption, shall appoint any person approved by the adopter and whose prior consent thereto has been given in writing to be the guardian of the child in the event of the adopter, or both of the adopters where two spouses have applied for the adoption order, dying or becoming incapacitated before the child is of full age.
(2) The court may, at any time before the child is of full age, on the application of the adopter, or of the guardian appointed under subsection (1) or of the child, revoke such appointment and appoint any other person to be the guardian of the child.
165.
Adoption order in respect of children previously adopted (1) An adoption order or an interim adoption order, may be made in respect of a child who has already been the subject of an adoption order under this Act or under any other Act or Ordinance for the time being in force in any country in the Commonwealth.
(2) In relation to an application for an adoption order in respect of such a child, the adopter or adopters under the previous or last adoption order shall be deemed to be the parent or the parents of the child for all purposes of this Part.
77 [Issue 1] CAP.
141 [Rev.
2012] Children 166.
Parental responsibility when adoption is refused If the court refuses to make an adoption order, the court may make such order in respect of parental responsibilities for the child as the court may think fit.
167.
Appeals Any person aggrieved by the making or refusal to make of an adoption order or an order pertaining to parental responsibility for a child may appeal therefrom in the same manner as if the application were a suit instituted under the Civil Procedure Act (Cap.
21).
168.
Amendment of orders (1) The court by which an adoption order has been made under the Adoption Act (Cap.
143) (now repealed) may, on the application of the adopter amend the order by the correction of any defect in the particulars contained therein; and where an adoption order is so amended, the court shall cause the amendment to be communicated in the prescribed manner to the Registrar-General who shall cause the Adopted Children Register to be amended accordingly.
(2) Where the adoption order was made before the commencement of this Act, the power of the court under subsection (1) shall include power to amend the order (a) by the insertion of the country of birth of the adopted person; or (b) where the order does not specify a precise date as the date of the adopted persons birth, by the insertion of the date which appears to the court to be the probable date of such birth, and the provisions of that subsection shall have effect accordingly.
(3) Where an adoption order is quashed or an appeal against an adoption order is allowed, the court which made the order shall give directions to the Registrar-General to cancel any entry in the Register of Births and any entry in the Adopted Children Register which was effected in pursuance of the order.
(4) A copy of, or extract from, and entry in any register being an entry the making of which is cancelled under this section, shall be deemed to be an accurate copy or extract and only if both the marking and the cancellation are omitted therefrom.
Registration of Adoption Orders 169.
Adopted children register (1) The Registrar-General shall maintain a register, to be called the Adopted Children Register, in which shall be made such entries as may be directed to be made therein by adoption orders, but no other entries shall be made therein.
(2) A certified copy of an entry in the Adopted Children Register, if purporting to be sealed or stamped with the seal of the Registrar-Generals Office, shall without any further or other proof of that entry, be received as evidence of the [Issue 1] 78 [Rev.
2012] CAP.
141 Children adoption to which it relates, and, where the entry contains a record of the date of the birth or the country of birth of the adopted person, shall also be received as aforesaid as evidence of the date or country in all respects as if the copy was a certified copy of an entry in the Registry of Births.
(3) The Registrar-General shall cause an index of the Adopted Children Register to be made and every person shall be entitled to search that index and to have a certified copy of an entry in the Adopted Children Register upon payment of such fee as may be prescribed.
(4) The Registrar-General shall, in addition to the Adopted Children Register and the index thereof, keep such other registers and books, and make such entries therein, as may be necessary to record and make traceable the connection between any entry in the Register of Births which has been marked Adopted and any corresponding entry in the Adopted Children Register, but such other register or books shall not be, nor shall any index thereof be, open to public inspection or search, except under the order of a court of competent jurisdiction, shall the Registrar General supply any person who requests information with respect to his own adoption, with any information contained in or with any copy or extract from any such registers or books.
170.
Registration of adoption orders (1) Every adoption order made by the court shall contain a direction to the Registrar-General to make an entry in the Adopted Children Register in the prescribed form.
(2) For the purposes of compliance with the requirements of subsection (1) (a) where the precise date of the childs birth is not proved to the satisfaction of the court, the court shall determine the probable date of his birth and the date so determined shall be specified in the order as the date of his birth; and (b) where the country of birth of the child is not proved to the satisfaction of the court, the particulars of that country may, notwithstanding anything in that subsection, be omitted from the order and from the entry in the Adopted Children Register.
(3) Where upon an application to the court for an adoption order in respect of a child not being a child who has previously been the subject of an adoption order made by the court under this Act or the Adoption Act (Cap.
143) (now repealed), there is proof to the satisfaction of the court of the identity of the child to whom an entry in the Register of Births relates, any adoption order made in pursuance of the application shall contain a direction to the Registrar-General to cause the entry in the Register of Births to be marked with the word Adopted.
(4) Where an adoption order is made by the court in respect of a child who has previously been the subject of an adoption order made by such court under this Act or the Adoption Act (Cap.
143) (now repealed), the order shall contain a direction to the Registrar-General to be marked with the word Re-adopted.
79 [Issue 1] CAP.
141 [Rev.
2012] Children (5) Where an adoption order is made by the court, the court shall cause the order to be communicated in the prescribed manner to the Registrar-General, and upon receipt of such communication, the Registrar-General shall cause compliance to be made with the directions contained in the order both with regard to marking an entry in the Register of Births with the word Adopted and in regard to making the appropriate entry in the Adopted Children Register.
Effect of Adoption Order 171.
Rights and duties of parents and capacity to marry (1) Upon an adoption order being made, all rights, duties, obligations and liabilities of the parents or guardians of the child in relation to the future custody, maintenance and education of the child, including all rights to appoint a guardian and to consent or give notice of dissent to marriage, shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as if the child were a child born to the adopter inside marriage and in respect of the matters aforesaid the child shall stand to the adopter as a child inside marriage.
(2) In any case where two spouses are the adopters, the spouses shall in respect of the matters aforesaid, and for the purpose of the jurisdiction of any court to make orders as to the legal custody and maintenance of and right of contact with children, stand to each other and to the child in the same relation as they would have stood if they had been the lawful father and mother of the child and the child shall stand to them in the same relation as to a lawful father and mother respectively.
(3) For the purpose of any written law relating to marriage for the time being in force in Kenya, an adopter and the person whom he has been authorised to adopt under an adoption order shall be deemed to be within the prohibited degrees of consanguinity; and the provisions of this subject shall continue to have effect notwithstanding that some person other than the adopter is authorised by a subsequent order to adopt the same child.
172.
Workmens Compensation For the purposes of the Workmans Compensation Act (Cap.
236), a child whom a deceased workman has been authorised to adopt under the adoption order shall be deemed to be a member of the family of the workman, and an adopter shall be deemed to be the parent of a deceased child whom he has been authorised to adopt.
173.
Orders and agreements in respect of child born outside marriage (1) Where an adoption order is made in respect of a child born outside marriage then subject to this section, any order, decree or agreement whereby the father of the child is required or has undertaken to make payments specifically for the benefit of the child shall cease to have effect, but without prejudice to the recovery of any arrears which are due under the decree, order or agreement at the date of the adoption order.
[Issue 1] 80 [Rev.
2012] CAP.
141 Children (2) Where a child to whom any such order, decree or agreement as aforesaid relates is adopted by his mother and the mother is a single mother, the order, decree or agreement shall not cease to have effect by virtue of subsection (1) upon the making of the adoption order, but shall cease to have effect if she subsequently marries.
(3) Where an adoption order is made in respect of a child committed to the care of foster parents, a voluntary childrens institution or a childrens institution or a rehabilitation school by a care order in force under this Act, the care order shall cease to have effect; and in any case any contribution order made in respect to the child shall cease to have effect, but without prejudice to the recovery of any arrears which are due under the order at the date of the adoption order.
174.
Intestacies, wills and settlements (1) Where, at any time after the making of an adoption order, the adopter or the adopted person or any other person dies intestate in respect of any movable or immovable property (other than property subject to an entailed interest under a disposition made before the date of the adoption order), that property shall devolve in all respects as if the adopted person were the child of the adopter born inside marriage and were not the child of any other person.
(2) In any disposition of movable or immovable property made, whether by instrument inter vivos or will (including codicil), at the date of an adoption order (a) any reference (whether express or implied) to the child or children of the adopter shall, unless the contrary intention appears, be construed as, or as including, a reference to the adopted person; (b) any reference (whether express or implied) to the child or children of the adopted persons natural parents or either of them shall, unless the contrary intention appears, be construed as not being or as not including, a reference to the adopted person; and (c) any reference (whether express or implied) to a person related to the adopted person in any degree shall, unless the contrary intention appears, be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born inside marriage and were not the child of any other person.
(3) Where under any disposition any movable or immovable property or any interest in such property is limited (whether subject to any proceedings limitation or charge or not) in such a way that it would, apart from this section, devolve (as nearly as the law permits) along with a dignity or title or honour, whether or not the disposition contains an express reference to the dignity or title or honour and whether or not the property may in some event become severed therefrom, nothing in this section shall operate to sever the property or any interest therein from the dignity, but the property or interest shall devolve in all respect as if this section had not been enacted.
175.
Provisions supplementary to section 174 (1) For the purpose of the application of any written law for the time in force in Kenya relating to the devolution of any property in accordance with section 174 81 [Issue 1] CAP.
141 [Rev.
2012] Children and for purposes of the construction of any such disposition as is mentioned in that section, an adopted person shall be deemed to be related to any other person being the child or adopted child of the adopter or (in the case of a joint adoption) of either of the adopters (a) where he or she was adopted by two spouses jointly and that the other person is the child or adopted child of both of them, as brother and sister of the whole blood; and (b) in any other case, as brother and sister of the half blood.
(2) Notwithstanding any rule of law, a disposition made by will or codicil executed before the date of an adoption order shall not be treated, for the purposes of section 174, as made after that date by reason only that the will or codicil is confirmed by a codicil executed after that date.
(3) Notwithstanding anything in section 174, trustees or personal representatives may convey or distribute any movable or immovable property to or among the persons entitled thereto without having ascertained that no adoption order has been made by virtue of which any person is or may be entitled to any interest therein, and shall not be liable to any such person of whose claim they have not had notice at the time of the conveyance or distribution; but nothing in this subsection shall prejudice the right of any such person to follow the property, or any property representing it, into the hands of any person, other than a purchaser for value without notice, who may have received it.
(4) Where an adoption order is made in respect of a person who has previously been adopted, the previous adoption shall be disregarded for the purposes of section 174 in relation to the devolution of any property on the death of a person dying intestate after the date of the subsequent adoption order and in relation to any disposition of property made after that date.
176.
Effect of overseas adoption (1) Where a person has been adopted (whether before or after the commencement of this Act) in any place and the adoption is one to which this section applies, then, for the purposes of this Act and all other written laws, the adoption shall have the same effect as an adoption order validly made under this Act, and shall have no other effect.
(2) Subsection (1) shall apply to an adoption in any place outside Kenya, if (a) the adoption order was made by any court of law in the Commonwealth and any court of competent jurisdiction in any other country; (b) in consequence of the adoption, according to the law of that country, a right superior to that of any natural parent of the adopted person in respect of the custody of the person; and (c) in consequence of the adoption, the adopter had, immediately following the adoption, according to the law of that country, a right superior or equal to that of any natural parent in respect of any property of the adopted person which was capable of passing to the [Issue 1] 82 [Rev.
2012] CAP.
141 Children parent or any property of the person dying intestate without other next-of-kin, and domiciled in that place where the adoption was made and a national of the country which had jurisdiction in respect of that place, but not otherwise.
(3) An adoption order made overseas in favour of an adoptor who is resident in Kenya shall be lodged in the court within the period and in the manner specified by the rules made by the Chief Justice.
Adoption Societies 177.
Restriction on making arrangements for adoption (1) No body of persons shall make any arrangement for the adoption of a child under the provisions of this Act unless that body is registered as an adoption society under this Part.
(2) An application for registration of an adoption society under this Act shall be made to the Director in the manner prescribed by this Act.
(3) Where an application is made, the Director shall refer the matter to the Adoption Committee which may (a) accept the application for registration; (b) refuse the application for registration on the ground that (i) a person taking part in the management or control of the society or a member of the society has been convicted of an offence under this Part, or of a breach of any regulations made under this Part; (ii) it would not be in the public interest to approve the same, having regard to the number of adoption societies already approved and functioning in the particular locality.
(4) Where an application for registration is refused, no further application for registration of the adoption society may be made under this section within a period of six months beginning with the date when the applicant is notified of such refusal.
(5) Where the Adoption Committee approves and accepts the registration of an adoption society, it shall issue a Certificate of Registration in the prescribed form and shall at the end of the period of twelve months beginning with the date of registration and annually thereafter, review the registration of the adoption society for the purpose of determining whether the registration should continue being in force or be cancelled.
(6) An appeal against the decision of the Adoption Committee in refusing or cancelling the registration of an adoption society shall be made in the prescribed manner to the Minister whose decision upon the hearing and determination of the appeal shall be final.
(7) The functions of an adoption society shall be (a) to make such inquiries and investigations and to cause such reports as shall be prescribed or as the court may direct, to be obtained for the purpose of ensuring so far as may be possible, the suitability of a child for adoption; 83 [Issue 1] CAP.
141 [Rev.
2012] Children (b) to examine and interview any prospective applicant for an adoption order and to make such inquiries and investigations and to cause such reports as shall be prescribed, to be obtained or as the court may direct; for the purpose of ensuring so far as may be possible, the suitability of the applicant for the making of an adoption; (c) to ensure that the parent or guardian of the child concerned understands the effect in relation to his rights as a parent or guardian, of the making of an adoption order in respect of the child, and in this regard and whenever possible to procure any consents to the adoption from the persons specified under section 158(4); (d) where the child in respect of whom arrangements for adoption are to be made appears to have been abandoned, to ensure that as far as possible all necessary steps are taken to trace the parents or relatives of the child; (e) subject to its having the facilities to do so, to take care and possession of any child whose parent or guardian is desirous of causing the child to be adopted, pending arrangements for adoption; (f) when appointed by the court to act as guardian ad litem in any adoption proceedings to nominate a member or officer of the society to so act; (g) in so far as the funds at its disposal permit, to make provision for the care and supervision of children who have been placed by their parents or guardians at the disposition of the society; (h) to maintain a register and records in respect of all or any children in respect of whom arrangements for adoption have been made by the society, and the names and particulars of any applicants for adoption or of the adopters; and (i) to perform such other duties as may be prescribed.
(9) Any corporate body of persons or any person who takes part in the management or control of an unregistered body of persons, which makes arrangements for the adoption of a child in contravention of subsection (1) commits an offence.
(10) Any corporate body which commits an offence under this section shall be liable on conviction to a fine not exceeding one hundred thousand shillings.
(11) Any person who takes part in the management or control of a corporate body of persons which is guilty of an offence under this section shall be liable to imprisonment for a term not exceeding one year, or to a fine not exceeding one hundred thousand shillings or to both.
(12) In any proceedings under this section, proof of the things done or of words written, spoken or published (whether or not in the presence of any party to the proceedings) by any person taking part in the management or control of a body of persons, or in making arrangements for the adoption of children on behalf of the body, shall be admissible as evidence of the purpose for which that body exists.
[Issue 1] 84 [Rev.
2012] CAP.
141 Children General Provisions on Adoption 178.
Information to be confidential (1) Every member or officer of an adoption society and every person having any official duty under or being employed in the administration of this Act, shall regard and deal with all documents and information relating to the adoption or proposed adoption of any child, or to any such child, or to the parent or guardian of such child, or to the proposed adopter of such child, as secret and confidential.
(2) Every person having possession or control over any such documents or information who at any time communicates any such information or anything contained in any such comments to any person (a) other than the court, the Adoption Committee, the Minister, the Registrar-General or any other member or officer of the society; or (b) an advocate representing the applicant or the guardian ad litem appointed under this Part; (c) otherwise than for the purposes of this Act, commits an offence and is liable on conviction to imprisonment for a term not exceeding one year, or to a fine not exceeding twenty thousand shillings, or to both: Provided that nothing contained in this section shall apply to the communication of any document or information in good faith in the interest or intended interest of such child as aforesaid or of the parent or guardian of, or proposed adopter of, the child.
(3) No officer or member of an adoption society, and no person having any official duty or being employed in the administration of this Part, shall be required to produce before any court any such document as aforesaid, or to divulge or communicate to any court any such information as aforesaid except as may be necessary for the purpose of carrying into effect the provisions of this Part, or in order to bring or assist in the course of a prosecution for any offence under this Part.
(4) The Minister may by order exempt any person by name or office from the provisions of this section.
179.
Prohibition of certain payments (1) Subject to subsection (2) (a) any adopter or any parent or guardian of a child who receives any payment or other reward in consideration of the adoption of a child under this Act; or (b) any person who (i) makes or gives or agrees to give to any adopter or any parent or guardian of the child any payment or other reward in consideration of the adoption of any child under this Act; or 85 [Issue 1] CAP.
141 [Rev.
2012] Children (ii) makes arrangement for the adoption of a child and receives or makes or gives any payment or other reward in connection with the making of the arrangements, commits an offence and is liable on conviction to imprisonment for a term not exceeding three years, or a fine not exceeding one hundred thousand shillings, or to both.
(2) Subsection (1) shall not apply (a) to any payment the making or receipt of which is sanctioned by the court to which an application for an adoption order in respect of a child is made; or (b) to any payment made by or on behalf of an adoption society in respect of the maintenance of a child who has been placed at the disposition of the society; or (c) to any payment made to an adoption society by the parent or guardian of a child or by any other person in respect of the maintenance of the child, so long as the child is not in care and possession of a person who has adopted or proposes to adopt him, whether under an adoption order or some other order; or (d) to any payment made to an advocate who acts for any party in or in connection with an application for an adoption order, being payments made in respect of such application; or (e) to any voluntary contribution made by any adopter or any parent or guardian to an adoption society; or (f) to any fee prescribed by the Minister to be payable to an adoption society in the conduct of any functions under this Act.
180.
Restriction on advertisement (1) It shall not be lawful for any advertisement to be published indicating (a) that the parent or guardian of a child desires to cause the child to be adopted; or (b) that a person desires to adopt a child; or (c) that any person (not being an adoption society) is willing to make arrangements for the adoption of a child.
(2) Any person who causes to be published or knowingly publishes an advertisement in contravention of this section commits an offence and is liable on conviction to a fine not exceeding ten thousand shillings.
181.
Offences under this Part Where any offence under any regulations made under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, member of a committee, secretary or other officer of the body, he as well as the body corporate, shall be deemed to have committed that offence and shall be liable to be proceeded against and punished accordingly.
[Issue 1] 86 [Rev.
2012] CAP.
141 Children 182.
Regulations The Minister in consultation with the Council may make regulations for the better carrying out of the provisions and purposes of this Part, and without prejudice to the generality of the foregoing, for any of the following purposes (a) for regulating and maintaining supervision over the activities of adoption societies and persons or bodies of persons purporting to assist in making arrangements for the adoption of children; or (b) for regulating the making of international adoptions and prescribing safeguards therefor; or (c) for prescribing the manner in which arrangements for adoption shall be conducted; or (d) for prescribing any matter authorised or required to be prescribed under this Part.
183.
Rules of court under this Part The Chief Justice may make rules of court directing the manner in which applications to court have to be made and generally providing for matter of procedure and incidental matters arising under this Part.
PART XIII CHILD OFFENDERS 184.
Jurisdiction of Childrens Courts (1) Notwithstanding the provisions of Parts II and VII of the Criminal Procedure Code (Cap.
75), a Childrens Court may try a child for any offence except for (a) the offence of murder; or (b) an offence with which the child is charged together with a person or persons of or above the age of eighteen years.
(2) References to subordinate courts of any class, in the First Schedule to the Criminal Procedure Code (Cap.
75), include a Childrens Court.
185.
Power to remit cases to Childrens Court (1) Subject to any rules or directions made or issued by the Chief Justice, where it appears to a court, other than a Childrens Court, at any stage of the proceedings that a child is charged before it with an offence other than murder and is not charged together with a person or persons of or above the age of eighteen years, the court may, and where within the area of a subordinate courts jurisdiction there is established a Childrens Court having jurisdiction, the subordinate court shall remit the case to a Childrens Court: Provided that nothing in this subsection shall be construed as preventing a court, if it considers in the circumstances (including the stage reached in the proceedings) that it is proper so to do, from proceeding with the hearing and determination of the charge.
(2) Where in accordance with the provisions of subsection (1) of this section, a case is remitted to a Childrens Court after a finding that the child charged is 87 [Issue 1] CAP.
141 [Rev.
2012] Children guilty of the offence, the Childrens Court to which the case has been remitted may deal with the offender in any way in which it might have dealt with him if he had been tried and found guilty by that court.
(3) No appeal shall lie against an order of remission made under this section, but nothing in this section shall affect any right of appeal against the verdict or finding on which such an order is founded, and if a child has been found guilty by the High Court and his case remitted to a Childrens Court for an order under section 191 of this Act, he may appeal against such findings to the Court of Appeal.
(4) A court by which an order remitting a case to a Childrens Court is made under this section may give such directions as appear to be necessary with respect to the custody of the offender or for his release on bail or bond until he can be brought before the Childrens Court, and shall cause to be transmitted to the clerk of the Childrens Court a certificate setting out the nature of the offence and stating the stage reached in the case, and that the case has been remitted for the purposes of being dealt with under this section.
(5) Where, pursuant to the provisions of section 184, a court other than a childrens court hears a charge against a child, the court shall apply all the provisions of this Act as relate to the safeguards to be accorded a child offender.
186.
Guarantees to a child accused of an offence Every child accused of having infringed any law shall (a) be informed promptly and directly of the charges against him; (b) if he is unable to obtain legal assistance, be provided by the Government with assistance in the preparation and presentation of his defence; (c) have the matter determined without delay; (d) not be compelled to give testimony or to confess guilt; (e) have free assistance of an interpreter if the child cannot understand or speak the language used; (f) if found guilty, have the decisions and any measures imposed in consequence thereof reviewed by a higher court; (g) have his privacy fully respected at all the proceedings; (h) if he is disabled, be given special care and be treated with the same dignity as a child with no disability.
187.
Consideration of welfare (1) Every court in dealing with a child who is brought before it shall have regard to the best interests of the child and shall, in a proper case, take steps for removing him from undesirable surroundings and for securing that proper provision be made for his maintenance, education and training.
(2) Every child in remand or custodial care who is ill, or who complains of illness, (physical or mental), shall be examined promptly by a qualified medical practitioner and treated.
[Issue 1] 88 [Rev.
2012] CAP.
141 Children 188.
Friendly setting of Childrens Court A Childrens Court shall have a setting that is friendly to the child offender.
189.
Words conviction and sentence not to be used of child The words conviction and sentence shall not be used in relation to a child dealt with by the Childrens Court, and any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of a child, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order upon such a finding, as the case may be.
190.
Restriction on punishment (1) No child shall be ordered to imprisonment or to be placed in a detention camp.
(2) No child shall be sentenced to death.
(3) No child under the age of ten years shall be ordered by a Childrens Court to be sent to a rehabilitation school.
191.
Methods of dealing with offenders (1) In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways (a) By discharging the offender under section 35(1) of the Penal Code (Cap.
63); (b) by discharging the offender on his entering into a recognisance, with or without sureties; (c) by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap.
64); (d) by committing the offender to the care of a fit person, whether a relative or not, or a charitable childrens institution willing to undertake his care; (e) if the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments; (f) by ordering the offender to pay a fine, compensation or costs, or any or all of them; (g) in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions; (h) by placing the offender under the care of a qualified counsellor; (i) by ordering him to be placed in an educational institution or a vocational training programme; (j) by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap.
64); (k) by making a community service order; or (l) in any other lawful manner.
(2) No child offender shall be subjected to corporal punishment.
89 [Issue 1] CAP.
141 [Rev.
2012] Children 192.
Mental treatment If it appears to the court on the evidence of a medical practitioner that a child requires or may benefit from mental treatment, the court when making a probation order against him, may require him to undergo mental treatment at the hand or under the direction of a medical practitioner for a period not exceeding twelve months, subject to review by the court, as a condition of the probation order.
193.
Power to order parent to pay fines, etc.
(1) Where a child is charged with an offence for which a fine, compensation or costs may be imposed, if the court is of the opinion that the case would best be met by imposition of a fine, compensation or costs, whether with or without any other punishment, the court may in any case order that the fine, compensation or costs imposed or awarded be paid by the childs parent or guardian instead of by the offender, unless the court is satisfied that the parent or guardian cannot be found or that he or she has not induced the commission of the offence, by neglecting to exercise due care of the offender.
(2) Where a child is charged with an offence, the court may order his parent or guardian to give security for his good behaviour.
(3) An order under this section may be made against a parent or guardian who having been required to attend before the court, has failed to do so, but, save as aforesaid, no such order shall be made without giving the parent or guardian an opportunity of being heard.
(4) Any sums imposed and ordered to be paid by a parent or guardian under this section, or forfeiture of any such security as aforesaid, may be recovered from him or her in a like manner as if the order had been made on the conviction of the parent or guardian of the offender.
(5) A parent or guardian may appeal to the High Court against an order made under this section by a Childrens Court.
194.
Proceedings in respect of offences committed by a child (1) Proceedings in respect of a child accused of having infringed any law shall be conducted in accordance with the rules set out in the Fifth Schedule.
(2) The Minister may by regulations amend the rules made in accordance with subsection (1).
PART XIV MISCELLANEOUS AND GENERAL PROVISIONS 195.
Appeals to the Minister (1) A person aggrieved by any act of the Director or an authorised officer in exercise of powers conferred by this Act may appeal to the Minister within fourteen days.
(2) An appeal under subsection (1) shall be made in the prescribed manner.
(3) The Minister shall make regulations prescribing the procedure of appeal under this section.
[Issue 1] 90 [Rev.
2012] CAP.
141 Children 196.
General penalty A person convicted of an offence under this Act for which no other penalty is prescribed shall be liable to imprisonment for twelve months, or to a fine not exceeding twenty thousand shillings, or to both such imprisonment and such fine.
197.
General power to make regulations Subject to the provisions of this Act, the Minister may make regulations (a) for prescribing anything that may be prescribed under this Act; or (b) generally for the better carrying out of the provisions of this Act.
198.
Exemption The Minister may, from time to time, by order, either retrospectively from the passing of this Act or prospectively, exclude from the operation of all or any of the provisions of this Act the members of any race, tribe, religious group or sect in Kenya, or any part of such race, tribe, religious group or sect, or to whom the Minister may consider it impracticable or inexpedient to apply such provisions, and may also from time to time revoke any such order, but not so that the revocation shall have any retrospective effect.
199.
Grants and expenses of the Minister There shall be paid out of moneys provided by Parliament (a) such sums on such conditions as the Minister may prescribe towards (i) the expenses incurred by rehabilitation schools, and childrens remand homes; (ii) expenses incurred by the Director in the administration of services to children in need of care and protection; (b) such sums as grants or grants in aid to appointed local authorities or charitable childrens institutions as may be authorised by the Minister from time to time; (c) any other expenses incurred by the Minister and the Director in the administration of this Act.
200.
Repeals (1) The laws specified in the Sixth Schedule are repealed.
(2) Without prejudice to the generality of the application of section 3 of the Interpretation and General Provisions Act (Cap.
2), the transitional provisions set out in the Seventh Schedule shall have effect upon the repeal of the Acts specified in the Schedule.
91 [Issue 1] CAP.
141 [Rev.
2012] Children FIRST SCHEDULE [Section 31(3).] PROCEEDINGS OF THE NATIONAL COUNCIL OF CHILDREN'S SERVICES 1.
The Council shall have at least four meetings in one calendar year.
2.
The Chairman shall preside at every meeting of the Council at which he is present, and in the absence of the Chairman from a meeting the members present shall elect one of their number who shall, with respect to that meeting and the business transacted thereat have all the powers of the Chairman.
3.
The quorum for a meeting of the Council shall be seven.
4.
At any meeting of the Council the Chairman shall have a casting as well as a deliberative vote and subject thereto, the decision of the majority of the members present and voting at the meeting of the Council shall be deemed to be the decision of the Council.
5.
Subject to paragraph (2), no proceedings of the Council shall be invalid by reason of a vacancy among the members thereof.
6.
The chairman may at any time of his own motion and shall within fourteen days of the receipt by him of a written request signed by at least three members convene a meeting of the Council.
7.
All instruments made by, and all decisions of the Council shall be signified under the hand of the Chairman or the secretary.
8.
Except as provided by this Schedule, the Council may regulate its own proceedings.
SECOND SCHEDULE [Section 42.] WELFARE SCHEMES PART I Provisions for the assumption by local authorities of the care of persons including (a) provisions for children who are orphans or have been deserted or are in need of care and protection; (b) provisions for children and families already subject or becoming subject to orders of court; and (c) provision requiring parents of persons committed to the care of local authorities to maintain contact with such authorities.
[Issue 1] 92 [Rev.
2012] CAP.
141 Children PART II TREATMENT OF CHILDREN IN CARE OF LOCAL AUTHORITIES 1.
Furtherance of the best interests of children in their care.
2.
Provision for the accommodation and maintenance of children.
3.
The establishment and maintenance of institutions or day nurseries.
4.
The accommodation of children in voluntary homes including homes set up by voluntary childrens institutions.
5.
The provision of hostels and youth organisations.
6.
The provision of financial assistance towards the expenses of maintenance, education or training of children.
PART III VOLUNTARY CHILDRENS INSTITUTIONS 1.
The appointment of voluntary childrens institutions to act as agents of local authorities.
2.
Provision for the after care of children formerly in the care of local authorities or voluntary childrens institutions.
PART IV ADMINISTRATIVE AND FINANCIAL PROVISIONS 1.
Establishment of a childrens Committee.
2.
Appointment of childrens officers and appropriate staff.
3.
Grants for training in child care.
4.
Grants to voluntary childrens institutions.
PART V MISCELLANEOUS AND GENERAL 1.
Provision of places of safety.
2.
Any other provisions which may be approved by the Minister.
THIRD SCHEDULE [Sections 119, 121 and 128.] OFFENCES AGAINST CHILDREN WITH RESPECT TO WHICH PART IX APPLIES 1.
Offences under sections 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 157, 158, 162, 165, 166, 167, 250 and 251 of the Penal Code (Cap.
63).
2.
Offences under this Act.
3.
Any other offences involving bodily injury.
93 [Issue 1] CAP.
141 [Rev.
2012] Children FOURTH SCHEDULE [Section 152.] FOSTER CARE PLACEMENT RULES 1.
These Rules may be cited as the Foster Care Placement Rules.
2.
In these Rules Director means the Director of Childrens Services; foster care placement means the placing of a foster child with a foster parent; foster parent means a person or persons with whom a foster child is for the time being proposed to be placed for fostering.
3.
Application to register as a foster parent A person who wishes to register as a foster parent shall complete the application form specified in Form 1 of the Schedule to these Rules and submit it to the Director directly or through the manager of a rehabilitation school or the manager of a voluntary childrens institution who shall forward the application to the Director.
4.
Procedure before placement (1) A child shall not be placed with a foster parent unless (a) a childrens officer has interviewed the prospective foster parent and assessed that he or she is a suitable person to foster a child; (b) a childrens officer has visited the home of the prospective foster parent and has confirmed in writing that the home is likely to meet the requirements of the particular child and that the conditions in it are satisfactory; (c) two persons who know the prospective foster parent well will have vouched for his or her good character and suitability to care for the child; (d) it has been established by the officer in charge of the police station in the applicants area of residence that no person in the home has been convicted of a serious offence rendering it undesirable for the child to associate with that person; and (e) the wishes of the child so far as can be ascertained have, so far as practicable been taken into account.
(f) The childrens officer has completed and filed in the Directors office a report containing the particulars specified in Form 2 in the Schedule to these Rules.
5.
Religion (1) Where a childs religion is known, the child shall be placed with a foster parent who either is of the same religious persuasion as the foster child or who gives an undertaking that the child will be brought up in that religious persuasion.
[Issue 1] 94 [Rev.
2012] CAP.
141 Children 6.
Cultural background (1) Whenever possible, a child shall be placed with a foster parent who has the same cultural background as the childs parents and who originates from the same area in Kenya as the parents of the child.
7.
Registration of foster parent (1) If after such inquiry as the Director deems necessary, the Director is satisfied as to the character and fitness of the applicant and the premises proposed to be used by the applicant as a foster home, the Director shall register the applicant as a foster parent.
(2) A person registered under paragraph (1) shall make an undertaking containing particulars set out in Form 3 and be issued with a certificate of registration as set out in Form 3 in the prescribed form and shall be entitled to receive and maintain on the premises specified in the certificate any child for the purposes of caring and nurturing him.
(3) Every registration certificate issued under paragraph (2) shall continue in force for a period of twelve months beginning on the day it is issued and shall then expire: Provided that where an application for the renewal of a certificate is made prior to the expiry of the current certificate, the current certificate shall continue in force until a decision on the application for renewal is made.
(4) Subject to paragraph (3), the Director may at any time revoke a certificate of registration issued under paragraph (2).
(5) Where it is intended to revoke a certificate of registration under paragraph (2), the Director shall give notice of the intended revocation to the foster parent.
(6) Upon the issue of a notice under paragraph (5), the Director shall make such arrangements as may be necessary for the removal of any child residing in the foster home concerned.
8.
Medical care (1) When foster placement begins the Director shall obtain and submit to the foster parent a list of immunisations carried out in respect of the child and indicate to the foster parent the list of other immunisations required to be effected in respect of the child in accordance with the Ministry of Health schedule of immunisations and the foster parent shall ensure that those immunisations are carried out.
(2) The foster parent, and the Directors office shall at all times keep a record of the immunisations in respect of the child.
(3) The Director and the voluntary childrens institution which recommends foster care placement shall ensure that a foster child is examined by a medical practitioner within one month after foster placement and thereafter at least once every year, and arrangements shall be made by the Director or voluntary childrens institution to obtain from the medical practitioner after each such examination a written report on the physical health and mental condition of the foster child.
95 [Issue 1] CAP.
141 [Rev.
2012] Children (4) The Director and a voluntary childrens institution shall provide adequate facilities for a foster child who is placed for fostering to receive medical and dental attention as required.
(5) The Director shall require a foster parent to report all cases of serious illness or accident to a foster child and to summon a medical practitioner immediately in all such cases.
9.
Power of inspection (1) An authorised officer may at any time enter any foster home or any premises in which he has reason to believe a child is being maintained contrary to the provisions of these Rules, and may inspect every part of the foster home or premises and examine the child and condition of the child therein.
(2) The authorised officer may, if upon inspection under paragraph (1), he is dissatisfied with the quality of care that a child is receiving remove the child from the foster home or other premises and place the child in a place of safety until the wishes of the parent or guardian are known, or until alternative arrangements for the care and maintenance of the child can be made.
(3) The period during which a child remains in a place of safety under this section shall not exceed three months.
10.
Notification where child leaves Where a child leaves the care of any person who has possession of him under these Rules, the person shall, within three days, report to the Director, parent or guardian of the child.
11.
Death (1) Where a child placed in foster care under this Act dies, the foster parent shall within twenty-four hours of such death, notify the Director in the prescribed form.
(2) Where the childs parents or guardians are known, the Director shall inform them of the childs death.
(3) If the foster parent dies, in the case where a child is placed with a single foster parent, the child shall be returned to the home or the children rehabilitation centre or voluntary children institution from which he was received.
12.
Records Every District Childrens Office shall maintain a register of foster parents, in which shall be set out in respect of each fostering, a record set out in Forms 2 and 5 specified in the Schedule to these Rules.
13.
Every District Childrens Office shall report within one month after each fostering effected by it, the fact of the fostering and specifying the information in Form 5 specified in the Schedule to these Rules.
[Issue 1] 96 [Rev.
2012] CAP.
141 Children FOURTH SCHEDULEcontinued FOSTER-CARE PLACEMENT RULES Form 1 (Rule 3) APPLICATION TO FOSTER A CHILD NAME OF APPLICANT.
MARRIED/SINGLE.
AGE.
ADDRESS.
.
TELEPHONE NO.
.
NUMBER OF CHILDREN.
AGE.
EMPLOYMENT OF APPLICANT.
EMPLOYMENT OF HUSBAND.
EMPLOYMENT OF WIFE.
OTHER SOURCES OF INCOME (e.g, farm).
.
HAVE YOU EVER FOSTERED A CHILD/CHILDREN BEFORE? (If so, give particulars).
.
.
REASONS TO FOSTER.
.
ARE YOU WILLING TO UNDERTAKE SHORT TERM FOSTERING.
NAMES OF 2 REFEREES AND THEIR ADDRESSES (one shall be your locational chief).
.
.
.
.
1.
.
.
.
.
AGE RANGE.
SEX OF CHILD YOU WISH TO FOSTER APPLICANTS SIGNATURE.
DATE.
97 [Issue 1] CAP.
141 [Rev.
2012] Children FOURTH SCHEDULEcontinued Form 2 (Rules 4(f) and 12) FOSTER-CARE PLACEMENT RULES PROSPECTIVE FOSTER PARENT RECORD Name of prospective foster parent (s).
.
Date of birth.
Age.
District of origin.
Religion.
Occupation.
Marital Status of prospective foster parent(s).
Date of marriage.
Is the relationship monogamous or polygamous.
Home address.
.
Village.
Parish.
Country.
Municipality.
Details of other people living in the home:.
.
.
Name Relationship to Age School/Class prospective Foster Occupation Parent.
.
.
Is there or has there been any serious illness/infection in the family? (If so, give details).
.
.
Particulars of the income and wealth of the prospective foster parents.
Give details of businesses and land owned by the family/person.
Description of the home.
.
Number of rooms.
Type of toilet.
Type of water supply.
Will the family/person need material support in order to start fostering? If the answer is yes specify what will be needed.
why does this family wish to foster children?.
.
[Issue 1] 98 [Rev.
2012] CAP.
141 Children FOURTH SCHEDULEcontinued Do they understand the temporary nature of fostering?.
Has the person/any member of the family had a criminal conviction (if YES, give details and dates and state whether in your opinion it is of such seriousness as to prevent the family/person from taking on a foster placement).
.
.
Assessment of the suitability of that family/person to foster children.
.
Recommendation.
what type of foster child would best benefit from this family/person? Baby, child, male, female, etc.) Details of foster child/(ren) already placed with foster parents.
Name Sex Date of Age at date Date of Why placement placement termination terminated.
.
Details of parents and siblings of foster children if known Name of Names of Names of brothers Sex Age Religion Address foster parents sisters of foster child.
.
.
.
.
Name of childrens officer.
Signature.
Address.
Date.
Form 3 (Rule 7(2)) FOSTER-CARE PLACEMENT RULES FORM OF UNDERTAKING (To be completed in Triplicate) I/We (names of foster parents).
who received (names of child).
into my/our home on (date).
99 [Issue 1] CAP.
141 [Rev.
2012] Children FOURTH SCHEDULEcontinued from (name of childrens officer).
undertake that 1.
I/We will care for (name of child).
As though he/she were my/our own child.
2.
I/We will bring him/her up in accordance with the (specify religious persuasion .).
.
3.
I/We will look after his/her health and allow him/her to be medically examined as required by the childrens officer.
4.
I/We will allow a childrens officer to visit my/our home, and to see the child at any time.
5.
I/We will inform the childrens Officer immediately if the child is seriously ill, or is missing, or is involved in an accident, or is in any kind of trouble.
6.
I/We will inform the childrens Officer immediately if I/We plan to change residence and address.
7.
I/We understand that a childrens Officer has the right to remove the child from my/our home in certain circumstances.
.
(Signed, Foster Father).
(Signed, Foster Mother).
(Address of Foster Parent) Form 4 (Rule 7(2)) CERTIFICATE OF REGISTRATION AS A FOSTER PARENT CERTIFICATE 1.
I.
(Title).
certify that I have explained the undertaking provided for under Rule 7(2) of the Foster Care Placement Rules in the.
language to.
and foster parent(s).
Signed.
(Childrens Officer) [Issue 1] 100 [Rev.
2012] CAP.
141 Children FOURTH SCHEDULEcontinued Signed.
(Witness).
(Address of Witness) (Address of Childrens Officer).
Date.
Form 5 (Rules 12 and 13) FOSTER-CARE PLACEMENT RULES FOSTER CHILD CARE RECORD Name of child (surname first).
Date of Birth.
Age.
District of origin.
Sex.
Religion.
Names of foster parents.
Foster Parents Home Address Change of address Village.
.
Parish.
.
Country.
.
Municipality.
.
Natural Fathers name.
Alive/dead/unknown Natural Mothers name.
Alive/dead/unknown Natural Father or Natural Mother or Guardians Address guardians Address.
.
Village.
.
Parish.
.
Country.
.
Municipality.
.
Details of Foster childs brothers, sisters and relatives Names Addresses Alive/Dead.
.
.
.
.
.
Where was the child living immediately prior to this foster placement? (Please give names and address of carers or institution).
101 [Issue 1] CAP.
141 [Rev.
2012] Children FOURTH SCHEDULEcontinued CASE HISTORY OF THE CHILD AND HIS/HER FAMILY.
.
Government what efforts have been made to trace the parents or relatives and to return the child to his/her family.
.
Details of Medical history including immunisations.
Give details of Education School.
Class.
Name of Childrens Officer.
Address.
Date.
Childrens Officers Signature.
FIFTH SCHEDULE [Section 194.] CHILD OFFENDERS RULES 1.
Citation These Rules may be cited as the Child Offenders Rules.
2.
Interpretation In these Rules Probation Officer means a probation officer as defined in the Probation of Offenders Act Childrens Officer means a childrens officer as appointed to be a childrens officer under section 37 of the Children Act (Cap.
64); Director means the Director of Childrens Services appointed under section 37(1) of the Children Act.
3.
Application of Rules These Rules shall apply to the proceedings with respect to a child who is charged with an offence.
4.
Arrest and charge of a child (1) Where a child is apprehended with or without a warrant on suspicion of having committed a criminal offence he shall be brought before the Court as soon as practicable: Provided that no child shall be held in custody for a period exceeding twenty-four hours from the time of his apprehension, without the leave of the Court.
[Issue 1] 102 [Rev.
2012] CAP.
141 Children (2) Where a child is held in police custody the officer in charge of the police station shall as soon as practicable inform (a) the parents or guardians of the child; or (b) the Directors of the arrest.
(3) The police shall ensure that the parent or guardian of the child, or an advocate appointed to represent the child is present at the time of any police interview with the child.
(4) Where a childs parent or guardian cannot immediately be contacted or cannot be contacted at all, a Childrens Officer or an authorised officer shall be informed as soon as possible after the childs arrest so that he can attend the police interview.
5.
Bail of arrested child Where a person apparently under the age of eighteen years is apprehended with or without a warrant and cannot be brought forthwith before a court, the police or officer to whom such person is brought shall inquire into the case, and may in any case, and unless (a) the charge is one of murder or manslaughter or other grave crime; or (b) it is necessary in the interests of such person to remove him or her from association with any undesirable person; or (c) such officer has reason to believe that the release of such person would defeat the ends of justice, release such person on a recognizance being entered into by his parent or guardian or other responsible person, with or without sureties, for such amount as will, in the opinion of such officer, secure the attendance of such person upon the hearing of the charge.
6.
Prevention of child associating with adult offenders (1) No child while detained in a police station or while being conveyed to any court, or while waiting to attend in or leave any court shall be detained with or be allowed to associate with any adult who is not a relative of the child.
(2) Arrangements shall be made to detain the child in a separate institution or in a separate part of the police station.
(3) A female child shall, while detained, conveyed or waiting, as described in paragraph (1) of this Rule be under the care of a woman officer.
7.
Power to clear court Where in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the Court is under eighteen years of age is called as a witness, the Court may direct that all or any persons, not being members or officers of the Court, or parties to the case or their advocates, or persons otherwise directly concerned in the case, shall be excluded from the Court during the taking of the evidence of that witness.
103 [Issue 1] CAP.
141 [Rev.
2012] Children 8.
Power to require attendance of parent Where a child is charged with any offence or is for any other reason brought before a court, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, be required to attend at the Court before which the case is heard or determined during all stages of the proceedings, unless the Court is satisfied that it would be unreasonable to require such attendance.
9.
Bail (1) Where a child is brought before a court and charged with an offence, the Court shall inquire into the case and may release the child on bail on such terms as the Court may deem appropriate.
(2) Where bail is not granted the Court shall record the reasons for such refusal and shall inform the child of his right to apply for bail to the High Court.
10.
Remand of child when bail is refused to remand home (1) Where a child is not released on bail the Court may make an order remanding the child in custody and shall order him to be detained for the period for which he is remanded to a childrens remand homes: Provided that if there is no childrens remand home within a reasonable distance of the Court, the Court shall make such order as to the childs safe custody as it deems fit.
(2) For the purposes of this section a place of safe custody shall not be a remand home or prison in which adults are detained or remanded.
(3) A remand to a childrens remand home under this section may be revoked and the child, if he is over the age of fifteen years ordered to be remanded in a borstal institution, if the child proves to be so unruly a character that he cannot safely be remanded in a childrens remand home or if the child has proved to be of so depraved a character that he is not fit to be so remanded.
(4) Remand in custody shall not exceed (a) six months in the case of an offence punishable by death; or (b) three months in the case of any other offence.
(5) A child who escapes from a remand home or other place of safe custody in which he is detained may be arrested with or without warrant and returned to that place.
(6) Whenever possible, the Court shall consider alternatives to remand such as close supervision or placement with a counsellor or a fit person determined by the Court on the recommendation of a probation officer or childrens officer.
11.
Probation and Childrens Officers report (1) If the Court, after a charge has been admitted and proved, is considering making a detention or probation order, a written social background report shall be prepared by a probation officer and a Childrens Officer and shall be taken into account by the Court before making the order.
[Issue 1] 104 [Rev.
2012] CAP.
141 Children (2) The report shall include among other things, the social and family background, the circumstances in which the child is living and the conditions under which the offence was committed.
(3) The Court shall ensure that the contents of the report are made known to the child and that a copy of the report is provided for the child or his legal representative.
(4) In all other cases, the Court may request an oral report.
12.
Duration of cases (1) Every case involving a child shall be handled expeditiously and without unnecessary delay.
(2) Where the case of a child appearing before a Childrens Court is not completed within 3 months after his plea has been taken, the case shall be dismissed and the child shall not be liable to any further proceedings for the same offence.
(3) Where, owing to its seriousness, a case is heard by a court superior to the Childrens Court, the maximum period of remand for a child shall be six months, after which the child shall be released on bail.
(4) Where a case to which paragraph (3) of this rule applies is not completed within twelve months after the plea has been taken, the case shall be dismissed and the child shall be discharged and shall not be liable to any further proceedings for the same offence.
SIXTH SCHEDULE [Section 200(1).] WRITTEN LAWS TO BE REPEALED The Children and Young Persons Act (Cap.
141) The Adoption Act (Cap.
143) The Guardianship of Infants Act (Cap.
144) SEVENTH SCHEDULE [Section 200(2).] TRANSITIONAL PROVISIONS 1.
The juvenile courts established by section 2 of the Children and Young Persons Act (Cap.
141) hereinafter referred to as the repealed Children and Young Persons Act) shall be deemed to be the Childrens Courts for the purpose the Act.
2.
The juvenile remand homes established, and the approved schools approved and established as the case may be, under Part V of the repealed Children and Young Persons Act (Cap.
141) shall be deemed to be the children remand homes and approved schools for the purposes of the Act.
105 [Issue 1] CAP.
141 [Rev.
2012] Children 3.
A person who immediately before the commencement of this Act is detained in a juvenile remand home or an approved school under the provisions of the repealed Children and Young Persons Act (Cap.
141) shall be deemed to be detained in a children remand home or approved school for the purposes of the Act.
4.
Every person in whose care and possession a child is placed under the provisions of Part VI of the repealed Children and Young Persons Act (Cap.
141) shall within 90 days after the commencement of this Act apply for appointment as a foster parent under section 148.
5.
The Chief Inspector and inspectors of children appointed under section 54 of the repealed Children and Young Persons Act (Cap.
141) shall be deemed to be the Director of Childrens Services and Childrens Officers, respectively, for the purposes of the Act.
6.
The local authorities appointed by the Minister under section 58 of the repealed Children and Young Persons Act (Cap.
141) shall continue to be appointed local authority for the purposes of this Act.
7.
A person who, immediately before the commencement of this Act is an approved officer under section 64 of the repealed Children and Young Persons Act (Cap.
141) should continue to be an approved officer for the purposes of this Act.
8.
The Adopted Children Register maintained by the Registrar-General under section 13 of the Adoption Act (hereinafter referred to as the repealed Adoption Act) shall continue to be the Adopted Childrens Register for the purposes of this Act.
9.
(1) An adoption society other than a local authority approved under section 23 of the repealed Adoption Act shall continue to be an adoption society for the purposes of this Act.
(2) The Minister shall, forthwith on the commencement of this Act arrange for the transfer of the functions of any local authority as an adoption society as appropriate adoption society.
EIGHTH SCHEDULE [Section 68.] POWERS AND FUNCTIONS OF AN INSPECTION COMMITTEE (a) Inspect rehabilitation schools, childrens remand homes and charitable childrens institutions.
(b) Visit the institutions or cause them to be visited.
(c) Interview any child in the premises or institution.
(d) Interview the manager and any staff member in the premises.
(e) Inspect the conditions and facilities provided by the institution or manager of the premises.
(f) Make recommendations on closure, improvement, and remedial requirements and relocation of children housed in the institution inspected.
[Issue 1] 106 [Rev.
2012] CAP.
141 Children NINTH SCHEDULE [Section 155.] MEMBERS OF THE ADOPTION COMMITTEE (a) The Director.
(b) Four representatives from charitable childrens institutions and organizations engaged in child welfare activities, appointed by the Minister.
(c) One representative from Kenyatta National Hospital.
(d) One representative from private hospitals dealing primarily with children, appointed by the Kenya Medical Association.
(e) One representative of the Law Society of Kenya knowledgeable in the rights and welfare of children.
(f) A representative of the Ministry of Foreign Affairs.
(g) The Attorney-General.
107 [Issue 1] [Rev.
2012] CAP.
141 Children [Subsidiary] CHAPTER 141 CHILDREN ACT SUBSIDIARY LEGISLATION List of Subsidiary Legislation Page 1.
Children (Practice and Procedure Parental Responsibility) Regulations, 2002 111 2.
Guardianship of Children (Practice and Procedure) Rules.
113 3.
Children (Practice and Procedure) (Child Offender) Rules, 2002.
117 4.
General Rules and Regulations.
119 5.
Children (Adoption) Regulations, 2005.
129 6.
Children (Charitable Childrens Institutions) Regulations,2005.
159 109 [Issue 1] [Rev.
2012] CAP.
141 Children [Subsidiary] CHILDREN (PRACTICE AND PROCEDURE PARENTAL RESPONSIBILITY) REGULATIONS, 2002 [L.N.
74/2002.] 1.
These Regulations may be cited as the Children (Practice and Procedure Parental Responsibility) Regulations, 2002.
2.
In these Regulations except where the context otherwise requires Act means the Children Act, 2001; Court means the Childrens Court established under the Act; Director means the Director of Childrens Services appointed under section 37 of the Act; Magistrate means a magistrate appointed by the Chief justice under section 73(d)(ii) of the Act.
3.
All applications under this part shall be instituted by a Plaint signed by a Plaintiff or his Advocate setting out concisely the nature of the claim and the grounds upon which it is based.
4.
The plaint shall be served on the defendant who if he/she wishes to contest the claim shall file his answer within 14 days from the date of service on him of the claim.
All interlocutory applications shall be by Chamber Summons supported by an affidavit sworn by the parties or their agents or advocates.
5.
The mode of service shall, unless the Court otherwise directs, be personal and in every case an affidavit of service shall be filed as evidence of such service by a process server duly authorised to serve process under the Civil Procedure Rules.
6.
Once the defendant has filed his answer as required by regulation 4 or the time prescribed for doing so has elapsed the Court shall set the case down for hearing with notice to the parties.
7.
If a defendant who has been served does not file an answer to the claim, the Court may proceed and determine the claim ex parte.
8.
At the hearing, the evidence shall be in narrative form but the Court shall be at liberty to take down questions and answers verbatim if.
9.
A decision made ex parte under regulation 7 may, on application be set aside on such terms as may be just.
10.
The provisions of the Evidence Act shall apply to the proceedings under the Act with such exceptions as the Court may deem appropriate.
11.
The Court shall have a discretion to extend the time limited by these Regulations for doing any act or taking any step.
12.
A claim under section 25(i)(a) of the Act shall be served on the mother and the mother shall be at liberty to file an answer.
13.
A claim under section 26(2) of the Act (1) If made by the person who has parental responsibility for the child shall be served on the child.
111 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] (2) If made by the child, shall be served on the person who has parental responsibility.
(3) Where a claim under subrule (1) is made before the childs 18th birthday (a) The Court shall appoint a guardian ad litem for the purposes of the proceedings in question and he shall be served with the application; (b) The guardian ad litem shall be such person as in the opinion of the Court is capable of protecting the interest of the child in the proceedings.
14.
Where the Court makes an order under section 27(c)(ii) and (iv) of the Act, such order shall within ten (10) days be served on any known relative of the child who shall have a right within a further 10 days to make an application to set aside that order.
15.
An application under section 27(2)(c) of the Act, if made by the surviving mother or father of the child, shall be served on the testamentary guardian and, if made by the relatives of the deceased mother or father of the child shall be served on the surviving mother or father of the child as the case may be.
16.
An order for extension of parental responsibility under section 28(1) of the Act, may be made by the Court on its own motion or on the application by the (i) Director; (ii) Parent or relative of the child; (iii) Child; or (iv) Any person who has parental responsibility of the child.
17.
An application under regulation 16 herein, if not made by the parent or the person who has parental responsibility for the child shall (i) Be served on the parent or the person who has parental responsibility.
(ii) The application must state the reasons for the order sought and must be supported by an affidavit.
(iii) Where it is on the Courts own motion, the Court shall cause a notice to be served on the parent or the person who has parental responsibility.
(iv) Where the application is made by the child under regulation 16 subrule (iii), he shall be referred to in such manner as the Court may direct.
(v) If the application under subrule (iv) above is contested by the parent or the person who has parental responsibility for the child, the child shall be afforded legal representation.
(vi) Any expenses incurred in connection with the legal representation of the child shall be defrayed out of public funds set aside by Parliament.
18.
A Parental Responsibility Agreement shall be substantially in Form 4 in the First Schedule thereto.
19.
Any judgment or order given by the Court under these Regulations shall be executed and enforced in the same manner as provided under Order XXI of the Civil Procedure Rules.
20.
Any person aggrieved by the decision of the Court under these Regulations shall have a right of appeal to the High Court within 30 days from the date of the decision.
21.
All appeals under regulation 20 shall be governed by the provisions of the Civil Procedure Rules.
[Issue 1] 112 [Rev.
2012] CAP.
141 Children [Subsidiary] GUARDIANSHIP OF CHILDREN (PRACTICE AND PROCEDURE) RULES [L.N.
75/2002.] 1.
These Rules may be cited as the Guardianship of Children (Practice and Procedure) Rules.
2.
In these Rules, except where the context otherwise requires Director means the Director of Childrens Services appointed under section 37 of the Act; Magistrate means a magistrate appointed by the Chief justice under section 73(d)(ii) of the Act.
the Act means the Children Act, 2001; the Court means the Childrens Court as established under section 73 of this Act.
3.
All Applications under the Act shall be instituted by originating summons in the matter of the child supported by an affidavit sworn by the applicant or a person duly authorised to do so on his behalf.
4.
All interlocutory applications made to the Court shall be by Chamber Summons and supported by an affidavit.
5.
A party served by either Originating Summons or Chamber Summons may file a replying affidavit, but any person who desires to be heard and appears to the Court to be a proper person to be heard, may be heard, notwithstanding the fact that he has not filed an affidavit.
6.
At the hearing of the suit the evidence shall be in a narrative form but the Court shall be at liberty to take down questions and answers verbatim if it deems fit.
7.
The provisions of the Evidence Act shall apply to the proceedings under the Act with such exceptions as the Court may deem appropriate.
8.
The mode of service shall, unless the Court otherwise directs, be personal either on the child or his advocate on record, or the person who has parental responsibility for the child or the parent or the testamentary guardian or the person who has actual custody of the child or as otherwise provided herein and an affidavit of service shall be duly filed by any person authorised under the Civil Procedure Act to effect service.
9.
Proceedings under this part may be brought by (i) the child; (ii) his next friend; (iii) the Director; (iv) a person who has parental responsibility for the child; or (v) any person who in the opinion of the Court has a legitimate interest in the welfare of the child.
10.
Where a child has a guardian ad litem the child should be referred to in the title to the proceedings in such manner as the Court may direct.
113 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] 11.
It is the duty of a guardian ad litem fairly and competently to conduct proceedings on behalf of a child and he must have no interest in the proceedings adverse to that of the child and all steps and decisions he takes in the proceedings must be taken for the benefit of the child.
12.
Any person who wishes to become a guardian under this part shall swear and file an affidavit of fitness which shall be substantially in Form 6.
13.
(1) An application under section 102(5) of the Act shall state whether the guardianship is in respect of the person of the child or the childs estate or both.
(2) If the guardianship is in respect of the childs estate and the child, the guardian must file an affidavit of fitness together with a verifying affidavit set out in Form 7 in the First Schedule thereto.
(3) If it is in respect of the estate of the child only the guardian shall only file a verifying affidavit.
(4) If the guardianship is in respect of the child only, the guardian must state whether it is a male or a female child and whether the guardian intends to reside with the child.
(5) The guardian shall file the affidavit of fitness and/or verifying affidavit together with an affidavit of service when he files the application.
(6) If the application under subrule (4) states that the guardian intends to reside with the child the Court shall, in exercise of its discretion, pay special regard to the relationship between the child and the guardian and in particular the sex of the child and the guardian.
14.
The guardian shall serve the affidavit of fitness and/or verifying affidavit on the person having physical custody of the child.
15.
An application for termination of guardianship under section 106(6) if not made by the child or the guardian whose appointment is required to be terminated (i) Shall be served on the person whose appointment is required to be terminated and the child, if in the opinion of the Court he is of such age and understanding as to be able to respond to the application; (ii) The application must state the reasons for the orders sought and must be supported by an affidavit.
16.
Where any monies is payable to the child as a result of the proceedings under the Act, the money shall be deposited in an interest bearing account in the joint names of either the guardian(s) or the parent or the person who has parental responsibility for the child or guardian ad litem and the Court, and shall not be withdrawn except under a court order and upon such terms as the Court may direct.
17.
(1) Upon attaining the age of eighteen and desiring that the guardianship be determined in accordance with the provisions of section 107(1) of the Act the child may apply to the Court by Chamber Summons for an order terminating the appointment of the guardian ad litem and shall state in an affidavit the grounds upon which the order is sought.
(2) The application shall be served on the guardian ad litem and the other parties to the proceedings who will be at liberty to file any replying affidavit.
18.
Whether or not a child having reached eighteen years makes an application in accordance with the provisions of rule 17 a guardian or a guardian ad litem shall make an application to the Court and the Court shall discharge him as guardian or guardian ad litem.
[Issue 1] 114 [Rev.
2012] CAP.
141 Children [Subsidiary] 19.
Where the Court has granted an order terminating guardianship and it subsequently appears to the Court that the child was not served or that other matters have arisen which were not in existence at the time when the order was issued, the Court may vary, modify, or revoke such orders on application of the child or any person authorised under the Act.
20.
Where the child has attained the age of eighteen, unless the Court otherwise orders or directs, he shall be entitled to take personal responsibility over any money or property lawfully due to him and, in the case of any other form of investment other than money shall be transferred in his name.
21.
An application under section 104(5) of the Act if made by the surviving parent shall be served on the appointed guardian and if made by the appointed guardian shall be served on the surviving parent and the child if the Court is satisfied that he is of such age and understanding as to be able to respond to the application.
22.
An application under section 104(8) of the Act shall be served on the person in whose favour an existing custody order or residence order in respect of the child has been made.
23.
An instrument of disclaimer under section 106(5) shall be substantially in form 8 in the First Schedule thereto and shall be filed in the matter in which the person appointed a guardian was so appointed for the purposes of recording the same.
24.
Any judgment or order given under this part shall be executed and enforced in accordance with the provisions of the Civil Procedure Rules.
25.
Any person aggrieved by the decision of the Court may appeal to the High Court in accordance with the provisions of the Civil Procedure Rules governing civil appeals.
115 [Issue 1] [Rev.
2012] CAP.
141 Children [Subsidiary] CHILDREN (PRACTICE AND PROCEDURE) (CHILD OFFENDER) RULES, 2002 [L.N.
76/2002.] 1.
These Rules may be cited as the Children, (Practice and Procedure Child Offender) Rules, 2002.
2.
In these Rules, except where the context otherwise requires Act means the Children Act, 2001; Court means the Childrens Court established under the Act; Director means the Director of Childrens Services appointed under Section 37 of the Act; Magistrate means a Magistrate appointed by the Chief Justice under section 73(d)(ii) of the Act.
3.
A Childrens Court shall have original jurisdiction to try a child for any offence under this Act or under any Act, save where the offence committed is under any other law triable only by the High Court.
117 [Issue 1] [Rev.
2012] CAP.
141 Children [Subsidiary] GENERAL RULES AND REGULATIONS [L.N.
77/2002.] 1.
All civil matters under Parts III, VIII and XIII of the Act shall be conducted in accordance with these Rules and regulations but the Court shall have power and discretion to decide all matters with due speed and dispatch without undue regard to technicalities of procedure.
2.
The Court shall have power to determine the party or person to bear the costs or, out of what property and to what extent the costs shall be paid.
Provided that the cost of any action, cause or other matter or issue shall follow the event unless the Court shall for good reason otherwise order.
3.
The fees set out in the Second Schedule shall be payable in respect of matters and services set out therein and it shall be payable at the time when the document is filed or, when the action specified is taken, as the case may be.
4.
Unless otherwise provided in the Act, the forms under the Civil Procedure Act shall substantially be applicable to the Act.
5.
The following provisions of the Civil Procedure Rules shall apply to the proceedings under the Act with such exceptions, as the Court may deem appropriate.
(i) Order V Service of Summons (ii) Order VI A Amendments of Pleadings (iii) Order XI Consolidation of Suits (iv) Order XIII Production, impounding and Return of Documents (v) Order XV Summoning and Attendance of Witnesses (vi) Order XVI Prosecution of suits and Adjournments (vii) Order XVII Hearing of the Suit and Examination of Witnesses (viii) Order XVIII Affidavits (ix) Order XX Judgment and Decree (x) Order XXI Execution of Decrees and Orders (xi) Order XXII Attachment of Debts (xii) Order XXXIX Temporary Injunctions and Interlocutory Orders (xiii) Order XLIV Review (xiv) Order XLIX Time (xv) Order IX A Consequence of Non-appearance and Default of Defence (xvi) Order IX B Hearing and Consequence of Non-attendance.
6.
These Rules may be amended from time to time as the Chief Justice may direct.
7.
Nothing contained in these Rules and Regulations shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of Justice or to prevent abuse of the process of the Court.
119 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] FIRST SCHEDULE Form 1 REPUBLIC OF KENYA GENERAL TITLE IN THE CHILDRENS COURT AT.
CHILDRENS CASE NO.
.
OF.
IN THE MATTER OF.
(A CHILD) A.B (A CHILD) SUING.
GUARDIAN OR THROUGH C.D.
GUARDIAN AD LITEM VERSUS E.F.
DEFENDANT Form 2 REPUBLIC OF KENYA IN THE CHILDRENS COURT AT.
IN THE MATTER OF.
(CHILD) CHAMBER SUMMONS LET ALL PARTIES concerned attend the Honourable Court on.
day of.
20.
at.
oclock in the.
noon or so soon thereafter as an will be made by/on behalf of the Applicant for ORDERS (a).
(b).
WHICH APPLICATION is based on the general grounds that (a).
(b).
This Application is supported by the annexed Affidavit of the nature of the case, further grounds and evidence to be adduced at the hearing.
DATED AT.
THIS.
DAY OF.
20.
.
Applicant/Guardian/Advocate DRAWN & FILED BY: APPLICANT/GUARDIAN/ADVOCATE If any party served does not attend at the time and place above-mentioned.
Such orders shall be made and proceedings taken as the Honourable Court deems just and expedient.
[Issue 1] 120 [Rev.
2012] CAP.
141 Children [Subsidiary] FIRST SCHEDULEcontinued Form 3 REPUBLIC OF KENYA IN THE CHILDRENS COURT AT.
CHILDRENS CASE NO.
OF.
IN THE MATTER OF.
(CHILD) AFFIDAVIT I,.
Care of.
(Guardian/child) makes oath and state as follows 1.
.
2.
.
3.
.
4.
THAT I swear this Affidavit in support/opposition to the Summons filed herein.
5.
THAT what is stated hereinabove is true to the best of my knowledge, information and belief grounds and sources whereof are disclosed.
SWORN BY THE SAID.
THIS.
DAY OF.
20.
BEFORE ME.
.
Deponent MAGISTRATE/COMMISSIONER FOR OATHS Read the notes overleaf carefully before entering into this agreement.
Form 4 REPUBLIC OF KENYA PARENTAL RESPONSIBILITY AGREEMENT [Section 26(1).] (To be completed in Triplicate) Section 26(1) Children Act 2001 Date recorded at the Registry.
Childrens Court.
This is a Parental Responsibility Agreement regarding The Child Name.
.
.
Male/Female Date of Birth Date of 18th Birthday Between The Mother Name.
Address.
121 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] FIRST SCHEDULEcontinued And The Mother Name.
Address.
We declare that We are the mother and father of the above child and we agree that the childs father shall have parental responsibility for the child (in addition to the mother).
.
.
Signed (Mother) Signed (Father) Certificate The following evidence of identity The following evidence of identity was was produced by the person produced by The person signing signing above.
above.
Signed in the presence of: Signed in the presence of: Name of Witness.
Name of Witness.
Address.
Address.
Signature of Witness.
Signature of Witness.
.
.
Commissioner For Oaths/ Commissioner For Magistrate Oaths/Magistrate Notes about the Parental Responsibility Agreement Read these notes carefully before you sign the Agreement.
About the Parental Responsibility Agreement The making of this Agreement will affect the legal position of the mother and father.
You should both seek legal advice before you make the Agreement.
You can obtain the name and address of an Advocate from Your local Childrens Court or nearest Court Law Society of Kenya Legal Aid Centre When filling in the form, please use black ink (the Agreement form should be in triplicate, one for the Court file and the other one for each parent).
Put the name of one child only.
If the father is to have parental responsibility for more than one child, fill in a separate form for each child.
This agreement SHALL be signed by the father and mother before a Childrens Court for certification by the Magistrate.
To the Mother: Proof of identity and motherhood shall be required (for example, birth Certificate, immunization card, baptismal card, a driving license, identity card or valid passport).
To the Father: Proof of identity and paternity shall be required.
Termination of the Agreement Once a Parental Responsibility Agreement has been made, it can only be brought to an end by an order of the Court made on the application of: (a) Any person who has parental responsibility for the Child.
(b) The Child with the leave of the Court upon attaining the age of eighteen (18).
[Issue 1] 122 [Rev.
2012] CAP.
141 Children [Subsidiary] FIRST SCHEDULEcontinued Form 5 REPUBLIC OF KENYA AFFIDAVIT OF SERVICE I,.
of P.O.
Box.
an Advocate/A Police Officer/A Process Server of the Court make oath and say as follows (1) Of.
day of.
20.
at.
(time), I served the Originating Summons/Chamber Summons etc.
dated.
in the case on.
at.
(place) by tendering a copy thereof to him/her and requiring a signature on the original.
He/She signed/refused to sign the Originating Summons/Chamber Summons etc.
He/She was personally known to me/was identified to me by.
and admitted that he/she was the Defendant/Respondent.
(2) Not being able to find.
the Defendant/Respondent on.
day of.
20.
day of.
at.
(time) I served the Originating Summons/Chamber Summons etc.
on).
(name and adult member of the family of the Defendant who resides with him.
(3) Not being able to find.
the Defendant/Respondent or any person on whose service could be made on,.
day of.
20.
at.
(time), I affixed a copy of the Originating Summons/Chamber Summons to the outer door of.
where he/she personally works for gain/resides I was accompanied by.
who identified the house to me.
SWORN BY THE SAID.
THIS.
DAY OF.
20.
.
Deponent BEFORE ME MAGISTRATE/A COMMISSIONER FOR OATHS Form 6 REPUBLIC OF KENYA IN THE CHILDRENS COURT AT.
CHILDRENS CASE NO.
.
(A CHILD) AFFIDAVIT OF FITNESS OF A GUARDIAN I,.
of.
presently residing in.
in the Republic of Kenya, make oath and state as follows 1.
THAT I am an Adult Kenyan of sound mind (if foreigner give full particulars) 2.
THAT I know and verily believe that I am qualified to act as a guardian to.
.
123 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] FIRST SCHEDULEcontinued 3.
THAT I have no interest in the matters in question in this cause adverse to that of the said.
.
4.
THAT I have consented to act as a guardian to.
5.
THAT I know and believe that.
is a child.
6.
THAT I can fairly and competently take care of the child.
7.
THAT I do solemnly swear under the penalties of perjury that the contents of this affidavit are true to the best of my knowledge, information and belief, the grounds and sources of such information and belief being disclosed.
SWORN at.
by the said.
day of.
.
Deponent BEFORE ME: A COMMISSIONER FOR OATHS Form 7 REPUBLIC OF KENYA IN THE CHILDRENS COURT AT.
CHILDRENS CASE NO.
.
(A CHILD) VERIFYING AFFIDAVIT OF A GUARDIAN IN THE CHILDRENS COURT AT.
CHILDRENS CASE NO.
.
OF.
IN THE MATTER OF.
(A CHILD) I,.
of.
presently residing in.
in the Republic of Kenya, make oath and state as follows 1.
THAT I am an Adult Kenyan of sound mind (if foreigner give full particulars) 2.
THAT I know and verily believe that I am qualified to act as guardian to.
.
3.
THAT I have no interest in the matters in question in this cause adverse to that of the said.
.
4.
THAT I have consented to act as a guardian in respect of the estate of.
.
5.
THAT I know and believe that the said.
is a child.
6.
THAT I can fairly and competently administer the estate of the said.
7.
THAT I shall take all reasonable steps to safeguard the estate of the said.
8.
THAT I shall produce and avail accounts in respect of the estate of the said child to the parents or custodian or court or to such other person as the Court may direct.
[Issue 1] 124 [Rev.
2012] CAP.
141 Children [Subsidiary] FIRST SCHEDULEcontinued 9.
THAT should the child incur any loss and/or damage as a result of my negligence I shall indemnify the child against such loss and/or damage.
SWORN at.
by the said.
day of.
.
Deponent BEFORE ME COMMISSIONER FOR OATHS/MAGISTRATE Form 8 REPUBLIC OF KENYA INSTRUMENT OF DISCLAIMER [Section 106(5).] LET IT BE KNOWN that I,.
appointed as a guardian of.
(child) by a will or Court Order dated the.
day of.
Hereby disclaim the said guardianship from the date hereof.
FOR REASONS THAT: 1.
.
2.
.
3.
.
I hereby declare that I have/have not exercised any control over any property of the child.
I hereby declare that I have rendered a true account of the Monies/and/or Properties of the child that came into my possession by virtue of the said guardianship.
I do solemnly declare under the penalties of perjury that the contents of the foregoing document are true and complete to the best of my knowledge.
MADE AT.
THIS.
DAY OF.
2002 GUARDIAN I, Magistrate/Commissioner for oaths, hereby Certify that the above named.
.
appeared before me on the.
day of.
20.
and acknowledged the above Marks/Signature as his.
At the time of the said acknowledgement CD was known to me/identified to me by.
.
Magistrate/Commissioner for Oaths 125 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] SECOND SCHEDULE COURT FEES This schedule shall be applicable to all matters under the Children Act No.
8 of 2001, and proceedings connected therewith.
For purposes of this Act, the GUIDE TO ASSESSMENT OF COURT FEES (REVISED EDITION 1995) shall be excluded and only this schedule shall apply.
1.
On Plaint (a) Filing Fee Ksh.
150.00 (b) Fees for Service Ksh.
50.00 2.
On Originating Summons (a) Filing Fee Ksh.
150.00 (b) Fees for service Ksh.
50.00 3.
On Chamber Summons (a) Filing fee Ksh.
100.00 (b) Fees for Service Ksh.
50.00 4.
On Filing of Affidavit Ksh.
50.00 5.
On Swearing of Affidavit Ksh.
50.00 6.
Notice (includes but not limited to) (a) Notice of Appointment of Advocates Ksh.
150.00 (b) Notice of change of Advocates Ksh.
150.00 (c) Notice of Preliminary Objection Ksh.
100.00 (d) Notice to produce documents Ksh.
50.00 (e) Notice of withdrawal Ksh.
100.00 (f) Notice to cease acting as guardian or guardian ad litem Ksh.
100.00 7.
Purchasing Instrument of Disclaimer Ksh.
100.00 8.
Filing instrument of disclaimer Ksh.
100.00 9.
Parental Responsibility Agreement/Certificate Ksh.
100.00 10.
On Application to set aside Ksh.
100.00 11.
Applications for review of Judgment Ksh.
100.00 12.
Application for execution of Decree on notice to show cause Ksh.
100.00 13.
Application for attachment of property Ksh.
100.00 14.
Salary Attachment Order Ksh.
50.00 15.
Warrant of Arrest Ksh.
20.00 16.
Reissue of warrant of Attachment Ksh.
50.00 17.
Certification or attestation of Documents Ksh.
50.00 18.
Injunctions Order Ksh.
50.00 19.
Transfer of Decrees to another court for Ksh.
50.00 Execution 20.
Substituted Service Ksh.
150.00 21.
Summary Judgment Ksh.
50.00 22.
Stay of execution Ksh.
150.00 23.
Applications for variation, revocation or Modification of orders Ksh.
100.00 [Issue 1] 126 [Rev.
2012] CAP.
141 Children [Subsidiary] SECOND SCHEDULEcontinued 24.
For every exhibit attached to Affidavit Ksh.
20.00 25.
Filing for entering ex parte Judgment Ksh.
50.00 26.
Filing of consent between parties Ksh.
50.00 27.
On filing any other document where no special fee is prescribed under this schedule Ksh.
50.00 127 [Issue 1] [Rev.
2012] CAP.
141 Children [Subsidiary] CHILDREN (ADOPTION) REGULATIONS, 2005 ARRANGEMENT OF REGULATIONS Preliminary Regulation 1.
Citation.
2.
Establishment of Committee.
3.
Membership of Committee.
4.
Officials of the Committee.
5.
Functions of the Committee.
6.
Meetings of the Committee.
7.
Signing authority.
Adoption 8.
Application for Registration of adoption society form.
9.
Director to acknowledge application.
10.
Requirements for registration.
11.
Certificate of Registration - form.
12.
Renewal of registration.
13.
Cancellation.
14.
Notification of refusal or cancellation.
15.
Appeal against refusal or cancellation of registration.
16.
Case committee.
17.
Giving up child to an adoption society.
18.
Social inquiry and medical reports.
19.
Placing a child with adopter.
20.
Report and accounts of the adoption society.
21.
Care and supervision of children.
International Adoptions 22.
Interpretation.
23.
Approval of foreign adoption society.
24.
Application for international adoption.
25.
Approval or rejection of application.
26.
International adoptions - procedure and undertaking.
27.
Consequences of the grant of an adoption order.
28.
Stoppage of adoption, arrangements and transfer of files.
29.
Registration of local adoption society for international adoption.
Miscellaneous 30.
Notification of placement of child.
31.
Visits to a child delivered for adoption.
32.
Visits upon a conditional adoption order.
33.
Stoppage of adoption arrangements general.
34.
Transition.
129 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] Regulation 35.
Offences.
36.
Penalties.
37.
Fees.
38.
Repeal.
SCHEDULES FIRST SCHEDULE FORM OF APPLICATION FOR REGISTRATION OF AN ADOPTION SOCIETY SECOND SCHEDULE MINISTRY OF HOME AFFAIRS CERTIFICATE OF REGISTRATION FOR AN ADOPTION SOCIETY THIRD SCHEDULE FORM OF RENEWAL FOR REGISTRATION OF AN ADOPTION SOCIETY FOURTH SCHEDULE FORM OF APPEAL AGAINST REJECTION OF APPLICATION FOR REGISTRATION AS AN ADOPTION SOCIETY FIFTH SCHEDULE ADOPTION OF CHILDREN - EXPLANATORY MEMORANDUM FOR BIOLOGICAL PARENT/GUARDIAN SIXTH SCHEDULE FORM FOR SOCIAL INQUIRY SEVENTH SCHEDULE EXPLANATORY MEMORANDUM FOR ADOPTERS EIGHTH SCHEDULE PART A - MEDICAL PARTICULARS OF CHILD PART B - MEDICAL PARTICULARS OF PROSPECTIVE ADOPTER NINTH SCHEDULE FORM OF ANNUAL REPORT TENTH SCHEDULE REQUIREMENTS FOR FOREIGN ADOPTION ELEVENTH SCHEDULE UNDERTAKING BY ADOPTERS - FOREIGN ADOPTION TWELFTH SCHEDULE UNDERTAKING BY FOREIGN ADOPTION SOCIETY THIRTEENTH SCHEDULE FEES FOURTEENTH SCHEDULE CERTIFICATE OF CONFORMITY [Issue 1] 130 [Rev.
2012] CAP.
141 Children [Subsidiary] CHILDREN (ADOPTION) REGULATIONS, 2005 [L.N.
43/2005, L.N.
27/2011.] Preliminary 1.
Citation These Regulations may be cited as the Children (Adoption) Regulations, 2005.
2.
Establishment of Committee The Adoption Committee is established under section 155(1) of the Act.
[L.N.
16/2004.] 3.
Membership of Committee (1) The Adoption Committee shall comprise the members set out in the Ninth Schedule to the Act.
(2) The members appointed by the Minister under paragraph (b) of the Ninth Schedule to the Act shall be appointed by Gazette Notice.
(3) The members appointed under paragraphs (c) to (f) of the Ninth Schedule to the Act shall be appointed by letter from the organizations referred to in those paragraphs.
[L.N.
16/2004.] 4.
Officials of the Committee (1) The Adoption Committee shall appoint one of its members to serve as chairman for a period of three years, and such an appointment may be renewed for one more term.
(2) The Director shall be the secretary of the Adoption Committee.
5.
Functions of the Committee The Adoption Committee shall, in addition to the functions provided for under section 155 of the Act, perform the following functions (a) regulate fees for registration of adoption societies; (b) consider, review and either approve or reject applications for registration for both international and local adoption societies; (c) manage and maintain a secretariat and offices provided by the Director; (d) co-ordinate international adoptions and approve foreign agencies wishing to conduct adoption in Kenya; (e) maintain and update from time to time a register of approved local and international adoption societies; (f) regulate fees charged by adoption societies for the processing of applications for adoption.
6.
Meetings of the Committee (1) The Adoption Committee shall hold at least twelve ordinary meetings in any given calendar year.
(2) The Secretary shall issue a fourteen days notice convening a meeting of the Adoption Committee and such notice shall set out in sufficient details matters to be discussed in the meeting.
131 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] (3) The Chairman shall preside at every meeting of the Adoption Committee and in his absence, the members present shall appoint one of them to preside over the particular meeting.
(4) Proceedings of the meeting of the Adoption Committee shall not be void only by reason of the absence of the Chairman from the meeting.
(5) The quorum of a meeting of the Adoption Committee shall be six members.
(6) The Chairman may, at any time and on his own motion, or upon a written request duly signed by at least two members, convene a special meeting of the Adoption Committee.
(7) All provisions of these Regulations pertaining to ordinary meetings, save for the giving of notice, shall apply to special meetings as if they were ordinary meetings.
7.
Signing authority All letters and instruments written or made by the Adoption Committee, or on the authority of the Adoption Committee, and all decisions of the Adoption Committee, shall be signed under the hand of the Chairman and the Secretary.
Adoption Societies 8.
Application for Registration of adoption society form An application under section 177(2) of the Act, for registration of an adoption society shall be made in the form set out in the First Schedule.
9.
Director to acknowledge application The Director shall acknowledge receipt of every application for registration within fourteen days after the date of receipt.
10.
Requirements for registration (1) The Adoption Committee shall not accept an application under section 177(3)(a) of the Act unless the body seeking registration has satisfied the following conditions (a) the body must be registered as a non-profit making organization, and such registration must have subsisted for a period of not less than twelve months preceding the date of application; (b) the body must have been involved in child-welfare activities or programmes recognised by the Director for a period of at least twelve months preceding the date of application; (c) the body must have the capacity and adequate resources to carry out adoption arrangements, which includes the following (i) an office and waiting room set in such a way that guarantees the privacy of the biological parents or guardians, child and the prospective adoptive parents; (ii) holding facilities where a child offered for adoption can be best taken care of; (iii) a fixed physical address and a fixed telephone number listed in the directory ordinarily compiled and/or issued by, or on the authority of, the telephone service provider or its agents, in the name of the body; any changes to these details shall be communicated to the Adoption Committee within thirty days from the date of change.
[Issue 1] 132 [Rev.
2012] CAP.
141 Children [Subsidiary] (2) The body seeking registration shall have a competent administrative team comprising of (a) a qualified administrator with knowledge and experience in matters relating to children; (b) a qualified social worker with at least a bachelors degree in social work, social sciences or a diploma in social work from a recognised institution of learning; (c) such support staff as may be necessary and adequate in the carrying out of the duties and functions of an adoption society.
(3) The body must have access to the services of a qualified medical practitioner duly registered as such under the Medical Practitioners and Dentists Act (Cap.
253).
11.
Certificate of Registration - form The form set out in the Second Schedule is prescribed as the form of Certificate of Registration for the purposes of section 177(5) of the Act.
12.
Renewal of registration (1) Every registered adoption society shall apply for renewal of registration every twelve months after the date of initial registration or the date of the last renewal of registration, whichever is the case.
(2) An application for renewal of registration shall be made in the form set out in the Third Schedule.
13.
Cancellation (1) Without prejudice to the annual review of registration of an adoption society under section 177(5) of the Act, the Adoption Committee may, in any other case where it becomes reasonably expedient for the better carrying out of the objects of the Act, and shall, where there is manifest failure or refusal to comply with the provisions of the Act or these Regulations, cancel the registration of an adoption society, subject to sub-rule (2).
(2) An adoption society shall not have its registration cancelled unless it has been accorded a reasonable opportunity to make representations to the Adoption Committee regarding the intended cancellation.
(3) The Adoption Committee shall give to an adoption society a written notice of intention to cancel the registration of the society, and shall accordingly invite the society to make its representations within thirty days from the date of notice.
14.
Notification of refusal or cancellation The Director shall give to an adoption society a written notice of refusal of registration under section 177(3)(b), or cancellation of registration under regulation 12 above, within fourteen days after the date of such refusal or cancellation.
15.
Appeal against refusal or cancellation of registration (1) An appeal against a decision of the Adoption Committee to refuse or cancel the registration of an adoption society shall be made in the form set out in the Fourth Schedule.
(2) The appeal shall be delivered to the Minister within thirty days after the appellant is notified of the decision to refuse or cancel the registration.
133 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] 16.
Case committee (1) Upon registration, an adoption society shall set up a committee (called a case committee), which shall comprise of not less than three and not more than five persons, one of whom shall be a trained social worker, and a list of members proposed for appointment to the case committee shall be submitted to the Adoption Committee for prior approval.
(2) Employees of the adoption society shall not be eligible to be appointed as members of the case committee.
(3) The adoption society shall provide a secretariat for the case committee.
17.
Giving up child to an adoption society Where the parent or guardian offers to place a child at the disposal of a registered society with a view to the child being adopted, the society (a) shall furnish the parent or guardian with an explanatory memorandum in the form set out in the Fifth Schedule; and (b) shall not accept the child unless the parent or guardian has signed and delivered to the society a certificate of acknowledgement, which the society shall retain, in the form set out in the Fifth Schedule that he has read and understood the memorandum.
18.
Social inquiry and medical reports (1) In the case of a child offered to be delivered by or on behalf of a registered adoption society into the care and possession of an adopter, the society shall (a) make enquiries and obtain a social workers report on the matters set out in the Sixth Schedule; and (b) obtain a medical report on the health of both the child and the adopter in the form set out in the Eighth Schedule.
(2) The reports obtained under this regulation shall be retained by the adoption society until the child attains the age of majority.
19.
Placing a child with adopter No child shall be delivered into the care and possession of an adopter by or on behalf of an adoption society until (a) the case committee has considered the reports required under regulation 18; (b) the adopter has been approved by the case committee; (c) the adoptive parent has read and understood the explanatory memorandum for adopters set out in the Seventh Schedule, and has duly signed the certificate of acknowledgement attached to the memorandum; (d) the adopters, in the case of joint applicants, have been married for at least three years prior to the date of commencement of adoption arrangements.
20.
Report and accounts of the adoption society (1) Every adoption society shall, within twelve months after the date of its registration and thereafter at least once in every period of twelve months, furnish to the Director (a) duly audited accounts and a balance sheet; and (b) an annual report in the form set out in the Ninth Schedule to these Regulations.
[Issue 1] 134 [Rev.
2012] CAP.
141 Children [Subsidiary] (2) For the purposes of subparagraph (a) of paragraph (1), the auditor shall be an independent person who is the holder of a practising certificate issued pursuant to section 21 of the Accountants Act (Cap.
531).
21.
Care and supervision of children (1) Every adoption society shall make adequate arrangements for the care and supervision of children who have been placed by their parents or guardians in the care of the society.
(2) Every child who is available for adoption and is not living under the direct control of the society shall, unless and until such child has been adopted, or the Director otherwise directs, be visited in the first month and at least once in every three months thereafter by a representative of the society, who shall report upon the case to the case committee, who may recommend appropriate action to be taken in the event that the child is not being taken care of properly.
International Adoptions 22.
Interpretation In this Part, unless the context otherwise requires foreign adoption society means a society other than a local adoption society, and which has been approved by the government of the receiving country; Hague Convention means the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption of 29th May, 1993; local adoption society means a society approved under section 177 of the Act; receiving country means the country where the adopted child will ordinarily reside and gain citizenship, and which are signatories to the Hague Convention.
23.
Approval of foreign adoption society (1) A foreign adoption society shall not initiate adoption arrangements in Kenya unless it has been approved by the Adoption Committee.
(2) An application for approval shall be made to the Adoption Committee and shall be accompanied by (a) a certificate of approval by a competent authority of the receiving country; and (b) an undertaking to respect the applicable law of Kenya.
24.
Application for international adoption (1) An application for adoption by a foreign adoption society shall be made through a local adoption society and shall be accompanied by the documents set out in the Tenth Schedule.
(2) All documents submitted by a foreign adoption society shall be notarised or authenticated by the Ministry responsible for foreign affairs in the receiving country.
(3) Upon receipt of an application for adoption from a foreign adoption society, a local adoption society shall forward the same to the Adoption Committee within thirty days from the date of receipt.
135 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] 25.
Approval or rejection of application (1) The Adoption Committee shall consider an application for international adoption and shall either approve or reject the same; a decision of the Adoption Committee shall be communicated to the local adoption committee within thirty days from the date such a decision is made.
(2) Where an approval is granted, a local adoption society shall communicate the same to the foreign adoption society within sixty days from the date of receipt of such approval, and such a communication shall be accompanied by (a) a brief report on the children, if any, available for adoption at the time, who are matching the adopters preferences; (b) information about the approximate length of time the adoption process may take, court filing fees, advocates fees, administrative and accommodation charges, and any other relevant information; and (c) a copy of the undertaking in the Twelfth Schedule to these Regulations to be signed by the foreign adoption society before conclusion of the adoption process.
(3) Where an application for adoption is rejected, a local adoption society shall communicate the rejection to the foreign adoption society within sixty days from the date of receipt of such rejection, detailing the reasons for the same.
(4) Where an application for adoption has been rejected by the Adoption Committee, a foreign adoption society may submit another application for adoption within six months from the date of rejection of the previous application.
26.
International adoptions - procedure and undertaking (1) Where an application for international adoption is approved, the foreign adoption society shall arrange for the prospective adopter to travel to Kenya within three months from the date the foreign adoption society received the notification of approval.
(2) The local adoption society shall, when the prospective adopter arrives in Kenya, introduce the adopter to the children available for adoption who match the adopters preference, and the adopter shall, where the adopter is willing to proceed with the adoption process, sign the undertaking set out in the Eleventh Schedule before commencement of adoption arrangements.
(3) The child intended for adoption shall be placed in the care of the adopter in Kenya for three continuous months, and the local adoption society shall accordingly supervise the placement.
(4) Where an adopter completes the placement period to the satisfaction of the local adoption society, the local adoption society may assist the adopter in making an application to the High Court for an adoption order, and the approval of the Adoption Committee to the adoption arrangements shall form part of the bundle to be submitted in court: Provided that an application to the High Court for an adoption order shall be made by the adopter or his advocate.
(5) Where the local adoption society is not satisfied with the conduct of the adopter during the placement period, it shall inform the Adoption Committee, which shall carry out investigations as to the suitability of the adopter (including making inquiries with the foreign adoption society) and shall communicate the result of such investigations to both the local and foreign adoption societies.
[Issue 1] 136 [Rev.
2012] CAP.
141 Children [Subsidiary] (6) If, upon conclusion of investigations conducted under paragraph (5) of this regulation the Adoption Committee decides to stop the adoption arrangements, it shall inform both the local and foreign adoption societies of the decision within a reasonable period.
27.
Consequences of the grant of an adoption order (1) Where the High Court grants an adoption order following an application by the adopter, the local adoption society shall notify the foreign adoption society accordingly within seven days from the date of the making of the order, and may assist the adopter to obtain the necessary travel documents for the child to facilitate departure from Kenya.
(2) A foreign adoption society shall send to the local adoption society reports on the progress being made by the adopted child in the receiving country (hereinafter referred to as the progress report) once every three months during the first two years from the date of making of an adoption order, and annually thereafter, and shall continue sending such reports until the third annual progress report has been given or the child attains the age of majority, whichever comes earlier.
(3) Upon the grant of an adoption order, the file in respect of the case in which the order is made shall be closed and retained by the local adoption society upon receipt of the third annual progress report from the foreign adoption society on the adopted child.
28.
Stoppage of adoption, arrangements and transfer of files (1) The Adoption Committee shall stop ongoing adoption arrangements of any stage where a foreign adoption society breaches any of the provisions of the undertaking in the Twelfth Schedule, and shall bar the foreign adoption society from engaging in other adoption arrangements in Kenya for such period as the Adoption Committee may deem appropriate.
(2) Where a foreign adoption society is stopped or barred from engaging in adoption arrangements, it shall transfer all files relating to ongoing adoption arrangements in Kenya to another approved foreign adoption society and shall notify the local adoption society of such transfer within a reasonable time.
(3) Where there is no other approved foreign adoption society to which adoption files of a foreign adoption society that has been stopped or barred from engaging in adoption arrangements can be transferred, all ongoing adoption arrangements being undertaken by the deregistered society shall lapse and shall accordingly be stopped.
29.
Registration of local adoption society for international adoption (1) A local adoption society may apply to the Director for registration to undertake international adoptions.
(2) Form 1 of the Tenth Schedule is prescribed as the form of application for registration to undertake international adoptions.
(3) A local adoption society registered to carry out international adoptions shall submit an application for international adoption as if it is an application for local adoption but all provisions of these Regulations pertaining to suitability of adopters, travel arrangements for adopters, placement of children with adopters, the signing of undertakings, applying for and making of adoption orders and furnishing of progress reports (save that its progress reports shall be furnished to the Adoption Committee), which applies to adoption arrangements by a foreign adoption society, shall apply to such local adoption society as if it was a foreign adoption society.
137 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] Miscellaneous 30.
Notification of placement of child Every prospective adopter shall, forthwith upon a child being placed with him by any party other than an adoption society, notify the Director of such placement and of the date thereof.
31.
Visits to a child delivered for adoption (1) Where a child has been delivered into the care and possession of a prospective adopter, visits shall be made to the child at least once in every month (a) in the case of a child so delivered by an adoption society, by a representative of that society; or (b) in any other case, by the Director or his authorized representative and for that purpose the prospective adopter shall allow access by such person to the child at any reasonable time.
(2) The representative of the adoption society or the Director shall report on such visits to the guardian ad litem, unless he is himself the guardian ad litem of the child.
(3) The provisions of this regulation are additional to and not in substitution for the provisions of regulation 21.
32.
Visits upon a conditional adoption order Where the court makes an adoption order conditional on the adopter accepting supervision and advice from an adoption society, a representative of such society shall visit the child at least once in every month during the continuance in force of the condition and for that purpose the adopter shall allow access by such person to the child at any reasonable time.
33.
Stoppage of adoption arrangements general Without prejudice to the powers of the Adoption Committee under regulations 13 and 28, the Adoption Committee shall stop ongoing adoption arrangements at any stage where there is a breach of the provisions of the Act, regulations made thereunder or any other law pertaining to adoption, and such arrangements shall only be commenced with again only where there is full compliance with the relevant statutory provisions, and only at the discretion of the Adoption Committee.
34.
Transition (1) Every adoption society that had been registered under the Adoption Act (Cap.
143) (now repealed) and that was deemed to continue as an adoption society by the Seventh Schedule to the Act shall be required to comply with these Regulations before renewal of its registration under regulation 12.
(2) The Adoption Committee established by the Children (Adoption) Regulations, 2004 (L.N.
16/2004) (now repealed) shall be deemed to continue as if it was established under these Regulations.
35.
Offences A contravention or failure to comply with any of the matters provided in these Regulations shall constitute an offence.
[Issue 1] 138 [Rev.
2012] CAP.
141 Children [Subsidiary] 36.
Penalties Any person convicted of an offence under these Regulations shall be liable to imprisonment for a term not exceeding ten months, or to a fine not exceeding fifty thousand shillings, or to both such imprisonment and such fine.
37.
Fees The fees payable under subsection (3) of section 169 of the Act shall be as set out in the Thirteenth Schedule.
38.
Repeal The Children (Adoption) Regulations, 2004 (L.N.
16/2004) are repealed.
FIRST SCHEDULE [Rule 8.] FORM OF APPLICATION FOR REGISTRATION OF AN ADOPTION SOCIETY To: The Director of Childrens Services I/We.
.
the undersigned being (a person) (persons) duly authorized on behalf of a society called.
.
hereby apply to have the said society registered as an adoption society under section 177 of the Act.
The following are particulars of the society 1.
Date of establishment.
2.
Full physical and postal address of the societys administrative centre.
3.
(a) For what object(s) does the society exist?.
(b) Does it exist only for the above object(s)?.
(c) Does it apply the whole of its income in promoting the above objects?.
[A copy of the instrument governing the societys activities should be attached] *4.
Full names, addresses and occupations or descriptions of all members of the committee controlling the activities of the society.
*5.
Full names, addresses, occupations or descriptions and qualifications of members of the proposed case committee.
6.
Has any person taking part in the management or control of the society or any member of the society been convicted of an offence under the Children Act, or of a breach of any regulations made thereunder? (If so, give particulars.).
.
*7.
Full names, addresses and qualifications of all persons employed by the society, whether voluntary or paid, for the purpose of making any arrangement for the adoption of children.
.
8.
Copies should be attached of the societys latest annual report and audited statement of accounts.
139 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] FIRST SCHEDULEcontinued I/We hereby declare that the above particulars are correct in every respect.
Signature:.
Office held under the society:.
Address:.
Date:.
SECOND SCHEDULE [Rule 11.] MINISTRY OF HOME AFFAIRS CERTIFICATE Of REGISTRATION FOR AN ADOPTION SOCIETY This is to certify that.
of P.O Box.
situated in.
has been granted registration *Attach separate list if necessary.
As an adoption society under section 177(5) of the Children Act, No.
8 of 2001, for the period.
.
to.
Issued on the.
day of.
20.
Registration number.
.
Chairman, Director, Adoption Committee Childrens Services THIRD SCHEDULE [Rule 12.] FORM OF RENEWAL FOR REGISTRATION OF AN ADOPTION SOCIETY To: The Director, Childrens Services I/We.
the undersigned being (a person) (persons) duly authorized on behalf of a society called.
.
hereby apply to have the said societys registration renewed under the Adoption Regulations.
The following are particulars of the society/body 1.
Date of registration.
Registration number.
2.
Full physical and postal address of the societys administrative centre.
.
3.
(a) For what object(s) does the society exist?.
(b) Does it exist only for the above object(s)?.
(c) Does it apply the whole of its income in promoting the above object(s)?.
[A copy of the instrument governing the societys activities should be attached] *4.
Full names, addresses and occupations or descriptions of all members of the committee controlling the activities of the society.
*5.
Full names, addresses, occupations or descriptions and qualifications of members of the case committee.
[Issue 1] 140 [Rev.
2012] CAP.
141 Children [Subsidiary] THIRD SCHEDULEcontinued *6.
Has any person taking part in the management or control of the society or any member of the society been convicted of an offence under the Children Act, or of a breach of any regulations made thereunder? (If so, give particulars.).
*7.
Full names, addresses and qualifications of all persons employed by the society, whether voluntary or paid, for the purpose of making any arrangement for the adoption of children.
8.
Cases dealt with by the society during the year ended+.
(a) Number of applications from persons wishing to adopt a child.
(b) Number of children offered to the society with a view to adoption.
(c) Number of children taken into childrens homes under the direct control of the society pending adoption.
(d) Number of children placed by the society pending adoption in foster homes or childrens homes not under the direct control of the society.
(e) Number of children placed with a view to adoption.
(f) Number of adoption orders made in respect of children placed by the society.
(g) Number of children dying from the time they have been identified to be suitable for adoption.
9.
(a) Number of children placed for adoption by the society and awaiting adoption orders at the end of the year.
.
(b) Number of children in childrens homes under the direct control of the society at the end of the year.
.
(c) Number of children at the end of the year in foster homes or in childrens homes in which they had been placed by the society but which are not under societys direct control.
.
10.
Copies should be attached of the societys latest annual report and audited statement of accounts.
I/We hereby declare that the above particulars are correct in every respect.
Signature:.
Office held under the society.
Address:.
Signature:.
.
Office held under the society: Address:.
*Attach separate list if necessary.
+ Insert date on which last financial year ended.
FOURTH SCHEDULE [Rule15.] FORM OF APPEAL AGAINST REJECTION OF APPLICATION FOR REGISTRATION AS AN ADOPTION SOCIETY To: The Minister for Home Affairs, Nairobi.
I/We the undersigned, on behalf of a society called ., wish to appeal against the decision of the Adoption Committee rejecting our application for registration as an adoption society (attach copy of application) communicated to us by their letter attached herein dated.
on the following grounds: (State grounds for appeal) 141 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] FOURTH SCHEDULEcontinued Name:.
Signature:.
Office held under the society:.
Address:.
.
Name:.
.
Signature:.
Office held under the society:.
Address:.
Date:.
FIFTH SCHEDULE [Rule 17.] ADOPTION OF CHILDREN - EXPLANATORY MEMORANDUM FOR BIOLOGICAL PARENT/GUARDIAN 1.
If the court makes an adoption order, all your rights and duties with regard to the child will be transferred permanently to the adopters and in law the child will no longer be yours.
2.
The court cannot make an adoption order without the consent of each parent or guardian of the child, unless that parent or guardian has abandoned, persistently failed to maintain or persistently ill-treated or neglected the child, or is incapable of giving consent (for instance, by reason of being insane), or is unreasonably withholding consent or cannot be found (written evidence should be given by an authorized officer that parents can not be traced or are unreasonably withholding consent.) Therefore, unless one of these things applies to you, an order cannot be made without your consent.
3.
The court cannot make an adoption order without the consent of a child who has attained the age of 14 years.
4.
Your consent shall be given in writing and signed in the presence of a witness and cannot be given until the child is six weeks old.
5.
You may either consent to adoption by specific applicants, or to adoption by any persons whom the adoption society finds to be suitable either locally or internationally.
6.
You may if you wish stipulate that your consent is given on condition that the child is brought up in a particular religious persuasion.
7.
Where specific applicants have applied to adopt, either their names must appear on the form or, if they have stated that they do not want you to know who they are (as they are entitled to do), the form must refer to them by a number identifying them in the records of the adoption society or the Director of Childrens Services, as the case may be.
8.
Where the applicants are referred to by a number you are not allowed to be told who they are, but you are entitled to be given information as to what sort of people they are.
9.
If you have given your consent but change your mind and want to get the child back, you will have to apply to the court for leave to remove the child from the care of the would be adopters; but you are not allowed to change your mind and withdraw your consent merely on the ground that you do not know the identity of the would be adopters.
[Issue 1] 142 [Rev.
2012] CAP.
141 Children [Subsidiary] FIFTH SCHEDULEcontinued 10.
You are not allowed to change your mind and withdraw your consent once the court has made a final adoption order.
11.
You are not allowed to receive or pay any money for the adoption unless the court agrees.
This does not apply to a weekly payment to an adoption society for the maintenance of your child before the child goes to the adopters.
An official receipt should be issued to you for any payment made.
12.
If you have taken out an insurance policy for your child, the insurer will be able to tell you whether after the adoption order is made, the policy can be transferred to the adopters should they wish to continue it.
FORM OF CERTIFICATE OF ACKNOWLEDGEMENT To: (insert name and address of adoption society.) I/WE HEREBY CERTIFY that I/We have received from you a memorandum headed Adoption of Children-Explanatory Memorandum for Biological Parent/guardian, from which I/we have detached this certificate of acknowledgement; and I/we further certify that I/we have read the memorandum and understood it as explained to me/us.
Name.
ID No.
Address.
Telephone.
Email.
Signature.
Date.
In the presence of mother/guardian in the case of a minor parent: Name.
ID No.
Signature.
Date.
SIXTH SCHEDULE [Rule 18.] FORM FOR SOCIAL INQUIRY Particulars of the child Full Names:.
Date of Birth:.
Place of birth:.
Name of hospital.
If other specify:.
Nationality:.
Race.
Religion:.
Level of education: Class:.
Name of school:.
143 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] SIXTH SCHEDULEcontinued Any rights or interest in property: Yes/No .If yes, give particulars.
Any insurance effected in respect of the child: Yes/No.
If yes give particulars.
Particulars of the parents/guardian: MOTHER Full Names.
Date of birth.
Place of birth.
ID/Passport No.
.
Marital status.
(Indicate if married to the childs father) Nationality.
Race.
Religion.
Address.
Telephone.
Email.
Residence.
Level of education.
Occupation.
Home District.
Division.
Location.
Sub-location.
Village.
Nearest landmark.
Next of kin.
Relationship.
Contact Address.
Details of other children, (if any): Full Names Age Sex Occupation 1.
.
.
.
.
2.
.
.
.
.
3.
.
.
.
.
Any history of hereditary or other diseases in the family? Yes/No.
.
If yes state:.
.
Why is the child being offered for adoption?.
Do you consent to the adoption? Yes/No.
.
If no why.
Signature.
Date.
FATHER Full Names.
Date of Birth.
Place of birth.
.
ID/Passport No.
.
Marital Status.
Do you consent to the adoption?.
If no, give reasons.
Nationality.
Race.
Religion.
Address.
Telephone.
Email.
Residence.
[Issue 1] 144 [Rev.
2012] CAP.
141 Children [Subsidiary] SIXTH SCHEDULEcontinued Level of education.
Occupation.
Home district.
Division.
Location.
Sub-location.
Village.
Nearest landmark.
Details of other children (if any) Full Names Age Sex Occupation 1.
.
.
.
.
2.
.
.
.
.
3.
.
.
.
.
Any history of hereditary or other disease in your family? Yes/No.
If yes state:.
Why is the child being offered for adoption ?.
.
If you are married to the mother or if.
you have.
acquired parental.
responsibility under the provisions of section 25(1) of the Children Act, do you consent to the adoption?.
If you dont consent, give reasons.
.
.
Fathers Signature Date GUARDIAN Full Names.
Date of Birth.
Place of Birth.
.
ID/Passport No.
.
Marital Status.
Nationality.
Race.
Religion.
Address.
Telephone.
Email.
Residence.
Education level.
Occupation.
Home district.
Division.
Location.
Sub-location.
Village.
Nearest landmark.
By whom were you appointed guardian?.
How were you appointed guardian?.
Do you consent to adoption? Yes/No.
If you dont consent give reasons:.
Why is the child being offered for adoption?.
RELATIVES Are there any relatives who have offered to provide a home for the child? Yes/No.
If yes give details Full Names Relationship Contact address 1.
.
.
.
2.
.
.
.
3.
.
.
.
Have they been informed of the proposed adoption? Yes/No.
.
If no, give reasons.
.
145 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] SIXTH SCHEDULEcontinued OTHER PERSONS Other persons liable to contribute to the support of the child Full Names Relationship Contact address Full Names Relationship Contact address 1.
.
.
.
2.
.
.
.
3.
.
.
.
Do they agree to adoption? Yes/No.
If no, give reasons.
.
.
.
Guardians signature Date SEVENTH SCHEDULE [Rule 19.] EXPLANATORY MEMORANDUM FOR ADOPTERS 1.
Once the court makes an adoption order in, your favour, you shall acquire all rights, duties, obligations and liabilities of a parent over the child, permanently, as if the child were a child born to you.
2.
All such rights, duties, obligations and liabilities of the natural parent shall be extinguished permanently.
3.
The adoption order is absolute and is irreversible.
4.
For purposes of the jurisdiction of any court to make orders as to the legal custody, maintenance of, and the right of contact with the child, both you and your spouse shall stand to each other and to the child in the same relation as the lawful father and mother of the child, and the child shall stand to you in the same relation as to a lawful mother and father respectively.
5.
An adopted child has all the inheritance rights as if he or she was born to you.
6.
For purposes of any written law relating to marriage for the time being in Kenya, you, your children (if any) and the adopted child shall be deemed to be within the prohibited degree of consanguinity and therefore cannot enter into a marriage relationship.
7.
Often the child may have been through traumatic experiences and will need you to provide a caring and secure family environment.
8.
The child has a right to know that he is adopted, and has a right to know about his origin as soon as the child is able to understand.
9.
You may also be asked to provide other forms such as medical forms, marriage and divorce certificate, citizenship certificate, police record authorization and previous assessment for placement of children, birth certificate and other information.
You shall be [Issue 1] 146 [Rev.
2012] CAP.
141 Children [Subsidiary] SEVENTH SCHEDULEcontinued required to furnish the adoption society with a full size photograph taken three months prior to the making of the application.
For joint applicants, a photograph of the couple shall be required.
10.
An application to the adoption society does not guarantee placement.
11.
The child placed with you pending adoption order may be withdrawn from you.
12.
Periodic home visits and supervision will be carried out by a representative of the adoption society while the child is placed with you pending an adoption order, and that you shall inform the adoption society in case of change of address, serious illness, or death of the child within 24 hours of the occurrence of the event.
13.
You shall inform the adoption society in the event of death of a spouse, or change of marital status in case of joint application.
14.
In the case of a joint application, the applicants must` be married and such marriage must have subsisted for at least four years preceding the date of application.
Form 1 FORM OF CERTIFICATE OF ACKNOWLEDGEMENT To:- (insert name and address of adoption society.) I/We HEREBY CERTIFY that I/we have received from you a memorandum headed Explanatory Memorandum for Adopters from which I/we have detached this certificate of acknowledgement; and I/we further certify that I/we have read the memorandum and understood it.
Signature.
Date.
Address.
Telephone.
Email.
Form 2 FORM FOR ENQUIRY ON PROSPECTIVE ADOPTER(S) PARTICULARS OF FEMALE PROSPECTIVE ADOPTER Full names.
Physical Address.
(attach map) Email address.
Telephone No.
Postal address.
Nearest landmark.
Date of birth.
Place of birth.
ID/Passport No.
.
Occupation.
Marital status.
Type of marriage (Christian, Islamic customary or other specify).
Form of marriage (polygamous, monogamous).
Date of marriage.
Place of marriage.
If married, do you intend to make a joint application for an adoption order?.
If no, give reasons.
147 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] SEVENTH SCHEDULEcontinued Country of domicile.
Nationality.
Race.
Religion.
Immigration status.
Length of previous residence in Kenya.
Intended length of future residence in Kenya.
Income per month/other sources of income.
How far is the earning of the children living in the home included in this income? PARTICULARS OF MALE PROSPECTIVE ADOPTOR Full names.
Physical Address.
(attach map) Email address.
Telephone No.
Postal address.
Nearest landmark.
Date of birth.
Place of birth.
ID/Passport No.
.
Occupation.
Marital status.
Type of marriage (Christian, Islamic customary or other specify).
Form of marriage (polygamous, monogamous).
Date of marriage.
Place of marriage.
If married, do you intend to make a joint application for an adoption order?.
If no, give reasons.
Country of domicile.
Nationality.
Race.
Religion.
Immigration status.
Length of previous residence in Kenya.
Intended length of future residence in Kenya.
Income per month/other sources of income.
How far is the earning of the children living in the home included in the income?.
OTHER CHILDREN IN THE PROSPECTIVE ADOPTIVE FAMILY Full Names Date of birth Sex Occupation 1.
.
.
.
.
2.
.
.
.
.
3.
.
.
.
.
How many of the children are living at home?.
What is the opinion of the children on the proposed adoption?.
.
Have you adopted a child(ren) before? Yes.
No.
If yes, give details Full Names Date of birth Sex Occupation 1.
.
.
.
.
2.
.
.
.
.
3.
.
.
.
.
[Issue 1] 148 [Rev.
2012] CAP.
141 Children [Subsidiary] SEVENTH SCHEDULEcontinued Details of their health status.
Name and address of the adoption society that arranged the adoption.
Has any previous application for adoption been rejected.
Yes/No.
If yes give reasons.
ACCOMMODATION AND CONDITION OF THE HOME Description of the home.
Number of bedrooms.
Source of water.
Type of toilet/bathroom.
Type of house (permanent/semi-permanent/traditional).
Owner occupier/rented.
Assets/property.
Liabilities (loan, mortgage etc).
Details of other people living in the home Full Names Age Sex Relationship Occupation 1.
.
.
.
.
.
2.
.
.
.
.
.
3.
.
.
.
.
.
Are the people living in the home in apparent good health? What child do you wish to adopt? Age.
Sex.
Race.
Other (specify).
Would you welcome periodical visits by a representative of an adoption society for a limited period after the adoption order is made? Yes/No.
If no, give reasons.
Give names of responsible persons who can vouch for.
your character and.
means Names Title/occupation Address Telephone/email 1.
.
.
.
.
2.
.
.
.
.
3.
.
.
.
.
I certify that the information given above is true to the best of my knowledge Name.
Signature.
Date.
Form 3 REFEREE INFORMATION ON PROSPECTIVE ADOPTERS CONFIDENTIAL Dear.
(name of referee) RE:.
, (name of applicant) The above named person(s) has/have applied to adopt a child under the care of this society and have given your name(s) as a referee.
Any information you care to give will be treated with strictest confidentiality.
Kindly answer the questions below and return the form to us either personally or by post at your earliest convenience.
Yours faithfully, (Name & Signature).
Director, Adoption Society.
149 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] SEVENTH SCHEDULEcontinued 1.
How long have you known the applicant(s)?.
2.
Are you in any way related to them?.
If yes, specify.
3.
Do you consider the applicant(s) suitable to undertake the care of a child not their own? If no give reasons.
4.
Is the relationship within the home happy (harmonious) as far as you are able to judge?.
If no give details.
5.
Do you know the religious persuasion of the applicant(s)?.
If yes, specify.
6.
Have the applicant(s) been convicted of any criminal offence?.
If yes, give details.
7.
Do you know whether the applicant(s) have a history of abusing children?.
If yes give details.
8.
You consider that a child placed in this home will be brought up against the background of stability and affection?.
9.
In your opinion, do you think theres adequate income in this household to bring up a child? Give details.
10.
Are the members of the household of good character?.
If no, give details.
11.
Are the adopters and members of the household in apparent good health?.
12.
Any other remarks that would be relevant to considering this application.
Name.
Occupation.
Signature.
Date.
VERIFICATION OF APPLICATION 1.
(a) Have the particulars given under the Sixth Schedule above been verified so far as possible? (b) Have the particulars of the birth of the child, and of the death, marriage or separation of the parents, and of the marriage of theadopter(s) been confirmed by inspection of certificate of birth, death or marriage or the separation order? 2.
Has the social worker of the adoption society interviewed the adopter(s)? 3.
Has the home of the adopter(s) been inspected by the social worker? 4.
Are the adopters and the members of their household of good character, have their references been taken? 5.
(a) Are the adopters and the members of the household in good health? (b) In case of the adopters is this supported by medical evidence as set out in Eighth Schedule? 6.
(a) Has the child been seen by the adopters? (b) Has the child been accepted by the adopter(s) with a view to adoption? 7.
Has the desirability of maintaining contact with an adoption society and seeking its guidance been fully explained to the adopters? [Issue 1] 150 [Rev.
2012] CAP.
141 Children [Subsidiary] EIGHTH SCHEDULE [Rule 18.] PART A - MEDICAL PARTICULARS OF CHILD (The medical report must be signed by a medical practitioner) 1.
(a) Date of birth.
(b) Has the child suffered from neonatal jaundice? (c) Weight at birth (state if premature).
(d) Present weight.
(e) Was the mothers confinement normal or instrumental? 2.
State of nutrition (good, fair, poor).
3.
(a) When did the child begin to walk? (b) When did the child begin to talk? 4.
Has the child any infection of bones, muscles or joints? 5.
Are there any evidences of paralysis? 6.
What is the HIV status of the child and any other diseases such as hepatitis B and tuberculosis? 7.
Has the child had fits? If so, state nature.
8.
Is there, or has there been, any infection of the skin? 9.
Is there, or has there been any infection of the eyes? Is the sight normal? 10.
Has the child had any discharge from the ears, or any serious ear trouble, and can it hear well? 11.
Are the nose and throat in healthy condition? 12.
Is there any evidence of disease of heart, lungs, kidneys or liver? 13.
Has the child normal control of bowels and bladder for its age? 14.
Has the child had measles, chicken pox, whooping cough, mumps or poliomyelitis? 15.
Has the child received the following immunizations B.C.G (against tuberculosis).
Pentavelant vaccination (against whooping cough, diphtheria and tetanus).
Tetanus toxoid.
Measles.
Other (state which).
16.
Is the childs mental and physical development normal for its age? 17.
Are behaviour, speech and articulation normal for its age? 18.
If the child has been neglected or improperly fed, do you consider its constitution such that good nursing and proper care would make it suitable for adoption? 19.
Give particulars of any condition not mentioned above about which you consider an adopter should be informed.
PART B - MEDICAL PARTICULARS OF PROSPECTIVE ADOPTER (The medical report must be signed by a medical practitioner) 1.
(a) Name of prospective adopter; (b) Date of birth; (c) Sex; (d) Address.
2.
What is the HIV status of the prospective adopter? 3.
Is the prospective adopter able to have natural children of his/her own and if not is the reason why he/she is unable to have such children known? 4.
If any fertility tests have been made to the prospective adopter what were the results of such? 151 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] EIGHTH SCHEDULEcontinued 5.
Has the prospective adopter suffered/suffering from any of the following? (a) tuberculosis; (b) chronic bronchitis or recurrent chest illness; (c) cardiovascular disease; (d) any form of rheumatism; (e) any form of neurosis or mental disorder; (f) epilepsy; (g) genito-urinary disease; (h) diabetes; (i) any neurological disorder; (j) leprosy; (k) any illness which might shorten the expectation of life or cause recurrent disability.
6.
Has the prospective adopter undergone any major surgical procedure? 7.
Is there any relevant family history of mental or physical disease? 8.
Is there any relevant abnormality in the following? (a) cardiovascular system (blood pressure should be stated); (b) respiratory system (if a chest x-ray is taken state date and result of such); (c) urogenital system (state quantity of albumin and sugar in urine); (d) abdomen and alimentary system; (e) central nervous system; (f) eyes and vision; (g) ears and hearing; (h) skin.
9.
Is there normal use of limbs? 10.
Does the prospective adopter appear mentally balanced and emotionally secure? 11.
Are there any other facts, medical or otherwise, about the prospective adopter which should be known? NINTH SCHEDULE [Rule 20.] FORM OF ANNUAL REPORT Report to the Director, Childrens Services, From the adoption society called.
for the financial year ended *.
1.
Full postal address of the societys administrative centre.
2.
Has there been any change in the objects for which the society exists? Does it still apply the whole of its income in promoting those objects? +3.
Full names, addresses and occupations or descriptions of all members of the committee controlling the activities of the society.
+4.
Full names, addresses, occupations or descriptions and qualifications of members of the case committee.
5.
Has any person taking part in the management or control of the society or any member of the society been convicted of an offence under the Children Act, or of a breach of any regulations made thereunder? (If so, give particulars.) [Issue 1] 152 [Rev.
2012] CAP.
141 Children [Subsidiary] NINTH SCHEDULEcontinued +6.
Full names, addresses and qualifications of all persons employed by the society whether voluntary or paid, for the purpose of making any arrangements for the adoption of children.
7.
Cases dealt with by the society during the year ended *.
(a) Number of applications from persons wishing to adopt a child.
(b) Number of children offered to the society with a view to adoption.
(c) Number of children taken into hostels under the direct control of the society or in a charitable childrens institution pending adoption.
(d) Number of children placed by the society pending adoption in foster homes or hostels not under the direct control of the society.
(e) Number of children placed with a view to adoption.
(f) Number of adoption orders made in respect of children placed by the society.
8.
(a) Number of children placed for adoption by the society and awaiting adoption orders at the end of the year.
(b) Number of children in hostels under the direct control of the society or in a charitable childrens institution at the end of the year.
(c) Number of children at the end of the year in foster homes or in hostels in which they had been placed by the society but which are not under the societys direct control 9.
A copy of the societys latest annual report is attached.
We hereby declare that the above particulars are correct in every respect.
Signature:.
Office held under the society:.
Address:.
Signature:.
Office held under the society:.
Address:.
Date:.
* Insert date on which last financial year ended.
+ Attach separate list if necessary.
TENTH SCHEDULE [Rule 24.] REQUIREMENTS FOR FOREIGN ADOPTION An application for adoption by a foreign adoption society should be accompanied by the following information on prospective adopter(s) and certified copies of his/their documents 1.
Passports.
2.
Full size colour photographs.
3.
Full size colour photographs of his/their children (if any).
4.
Religion.
5.
Occupation(s).
153 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] TENTH SCHEDULEcontinued 6.
Birth certificate(s).
7.
Birth certificates of their children (if any).
8.
Marriage certificate (if any).
10.
Medical certificates (including information on the fertility of adopter(s).) 11.
Social enquiry report from an official agency detailing preferences of the child to be adopted.
12.
Two (2) references from responsible persons preferably the local religious leader, Commissioner for Oaths, Notary Public or relevant government department.
13.
Affidavit from a reliable person(s) to take charge of the child in case of accident or death of the adoptive parents.
14.
A report on financial means supported by official documents.
15.
A report on fixed assets.
16.
Record of convictions (if any).
17.
Certificate of good conduct.
18.
Consent from competent court or government authority permitting adopter(s) to adopt a foreign child.
19.
Undertaking by a foreign adopter in the manner prescribed in the Eleventh Schedule.
20.
Undertaking by foreign adoption society in the manner prescribed in the Twelfth Schedule Form 1 FORM OF APPLICATION BY LOCAL ADOPTION SOCIETY FOR REGISTRATION TO UNDERTAKE FOREIGN ADOPTIONS To: The Director of Childrens Services, Nairobi.
I/We the undersigned, being (a person) (persons) duly authorized on behalf of the adoption society named.
hereby apply to have the said society licensed to undertake international adoptions.
The following are the particulars of the society 1.
Serial number and date of registration.
2.
Number of adoptions processed annually.
3.
Names, addresses and qualifications of persons who will arrange for international adoptions in the society.
4.
Reasons for intending to engage in international adoption.
1.
Name:.
Signature:.
Office held under the society:.
Address:.
2.
Name:.
Signature:.
Office held under the society:.
Address:.
Date:.
[Issue 1] 154 [Rev.
2012] CAP.
141 Children [Subsidiary] ELEVENTH SCHEDULE [Rule 26.] UNDERTAKING BY ADOPTERS - FOREIGN ADOPTION 1.
If the Kenyan court makes an adoption order, all the parental rights and duties of the biological parents in respect of the adopted child shall be transferred to us permanently.
2.
We shall be required to treat the adopted child(ren) as if they were born to us in our marriage.
3.
An adoption order is final and is binding during the lifetime of the child(ren) we shall adopt.
4.
The adopted child(ren) shall have the right to inherit our property.
5.
An adoption order cannot be recanted and we cannot thereafter give up the child(ren) owing to subsequent unforeseen behavioral or other changes in the child(ren).
6.
The adoption society in our country (foreign adoption society) will provide annual follow up reports on the progress of the child to the adoption society in Kenya (local adoption society) for a period of three years from the date of arrival in the receiving country.
7.
In order to accomplish the task in (6) above, we shall allow the representatives of the foreign adoption society to access the child(ren) at our home at any reasonable time.
WE HEREBY CERTIFY that we have read and understood the above undertaking and affix our signatures hereunder.
1.
Full names.
.
Address.
Signature.
Date.
2.
Full names.
.
Address.
.
Signature.
Date.
TWELFTH SCHEDULE [Rule 25.] UNDERTAKING BY FOREIGN ADOPTION SOCIETY We.
(insert name of society) undertake to do the following 1.
Carry out all activities pertaining to this adoption to its conclusion.
2.
Explain the requirements and legal implications of adoption of a child.
3.
Investigate the prospective adopters and prepare a Social Enquiry Report.
4.
Collect and collate all the requisite information for transmission to the local adoption society.
5.
Prepare the prospective adopter by sharing all the materials that shall have been sent by the local adoption society on the process of adoption in Kenya together with the details of what will be required of the adopters during their stay in Kenya.
6.
Confirm that the Kenyan adoption order will be respected and recognized in the receiving country and that the adopted child will gain resident status.
7.
Conduct visits to the adopters family and to furnish the local adoption society with annual progress reports on the child for a period of three years from the date of arrival in the receiving country.
155 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] TWELFTH SCHEDULEcontinued 9.
In the event of death or a breakdown of the adopters marriage, to ensure that the child enters into the care and possession of the named guardian or appointed fit person or authority.
Name of authorized official.
Designation.
Signed.
In the presence of: NOTARY PUBLIC THIRTEENTH SCHEDULE [Rule 35.] FEES Sh.
(a) To search the index of the Adopted Children Register.
200.00 (b) For a certified copy of an entry in that register.
200.00 FOURTEENTH SCHEDULE [L.N.
27/2011, Rule 27.] CERTIFICATE OF CONFORMITY This is to certify that the application for the adoption of the child whose particulars are stated below was made in accordance with the Hague Convention and the final adoption order was subsequently granted by a Judge of the High Court of Kenya sitting at.
Kenya on the date indicated: 1.
Full Names of child.
Sex: Male [ ] Female [ ] Date of birth: day.
month.
year.
Place of birth:.
Habitual residence:.
2.
Date of approval or agreement by Central Authority of the receiving State or State of origin that the adoption may proceed:.
.
3.
Date of approval or agreement by Adoption Committee, Kenya that the adoption may proceed:.
.
4.
(a) Full Names of the adoptive father:.
Date of birth: day.
month.
year.
Place of birth:.
Habitual residence:.
(b) Full names of the adoptive mother:.
Date of birth: day.
month.
year.
Place of birth:.
Habitual residence:.
[Issue 1] 156 [Rev.
2012] CAP.
141 Children [Subsidiary] FOURTEENTH SCHEDULEcontinued 5.
Date of adoption order granted by Court:.
6.
This adoption has the effect of terminating the pre-existing legal parent-child relationship.
7.
Certificate of Conformity No.
.
Issued at.
this.
day of.
20.
Chairman, Adoption Committee: Secretary, Adoption Committee: Name.
Name.
Signature.
Signature.
Note.This Certificate is not valid without the Official Seal of the Director of Children Services.
157 [Issue 1] [Rev.
2012] CAP.
141 Children [Subsidiary] CHILDREN (CHARITABLE CHILDRENS INSTITUTIONS) REGULATIONS, 2005 ARRANGEMENT OF REGULATIONS Preliminary Regulation 1.
Citation.
2.
Interpretation.
Registration 3.
Registration of institutions.
3A.
Duration and renewal of registration.
3B.
Cancellation of registration.
4.
Implementation of child welfare programmes.
Mission and Policy Statement and Childrens Guide 5.
Mission and policy statement.
6.
Review of mission and policy statement and childrens guide.
Welfare of Children 7.
Promotion of welfare.
8.
Child placement plan.
9.
Food provided to the children.
10.
Provision of clothing and personal necessities.
11.
Contact and access to information.
12.
Education, leisure activity and employment.
13.
Religious observance.
14.
Health needs of children.
15.
Hazard and safety.
16.
Complaints and representation.
17.
Behaviour management policy.
Staffing 18.
Appointment of person in charge.
19.
Staffing of institutions.
20.
Fitness of workers.
21.
Employment of staff.
Records 22.
Childrens case records.
23.
Other records.
24.
Notable events.
Premises 25.
Fitness of premises.
26.
Fire outbreak precautions.
159 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] Management of Institutions Regulation 27.
Visits by authorised persons.
28.
Inspection by Area Advisory Council, inspection committee, etc.
29.
Review of quality of care.
30.
Regulations and guidance.
31.
Financial position.
Miscellaneous 32.
Notice of absence.
33.
Notice of changes.
34.
Offences.
35.
Penalties.
SCHEDULES FIRST SCHEDULE FORM OF APPLICATION FOR REGISTRATION OF A CHARITABLE CHILDRENS INSTITUTION SECOND SCHEDULE ACKNOWLEDGEMENT OF RECEIPT OF APPLICATION THIRD SCHEDULE CRITERIA FOR APPROVAL OF CHARITABLE CHILDRENS INSTITUTIONS FOURTH SCHEDULE FORM OF APPEAL AGAINST REJECTION OF APPLICATION FOR REGISTRATION AS A CHARITABLE CHILDRENS INSTITUTION FIFTH SCHEDULE CERTIFICATE OF REGISTRATION OF A CHARITABLE CHILDRENS INSTITUTION SIXTH SCHEDULE FORM FOR NOTIFICATION OF ESTABLISHMENT OF A CHILD WELFARE PROGRAMME SEVENTH SCHEDULE CRITERIA FOR ESTABLISHMENT OF CHILD WELFARE PROGRAMMES EIGHTH SCHEDULE CERTIFICATE OF APPROVAL OF CHILD WELFARE PROGRAMME NINTH SCHEDULE MATTERS FOR INCLUSION IN THE MISSION AND POLICY STATEMENT TENTH SCHEDULE INFORMATION REQUIRED IN RESPECT OF PERSONS SEEKING TO CARRY ON, MANAGE OR WORK AT AN INSTITUTION ELEVENTH SCHEDULE INFORMATION TO BE INCLUDED IN THE CASE RECORDS OF CHILDREN ACCOMMODATED IN INSTITUTIONS TWELFTH SCHEDULE OTHER RECORDS WITH RESPECT TO INSTITUTIONS [Issue 1] 160 [Rev.
2012] CAP.
141 Children [Subsidiary] THIRTEENTH SCHEDULE EVENTS AND NOTIFICATION FOURTEENTH SCHEDULE MATTERS TO BE MONITORED BY ADMINISTERING AUTHORITY 161 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] CHILDREN (CHARITABLE CHILDRENS INSTITUTIONS) REGULATIONS, 2005 [L.N.
145/2005, L.N.
27/2007.] Preliminary 1.
Citation These Regulations may be cited as the Children (Charitable Childrens Institutions) Regulations, 2005 and shall come into force on such date as the Minister may, by notice in the Gazette, appoint.
2.
Interpretation (1) In these Regulations, unless the context otherwise requires administering authority means a person or body of persons registered to run an institution; institution means a charitable childrens institution as defined in sections 58 and 59 of the Act; placing authority means a Childrens Court or the Department of Childrens Services, and includes authorised officers as defined in the Act.
(2) Institutions shall be run in a way consistent with the guiding and overriding rights contained in the Convention on the Rights of the Child, 1989, and the African Charter for the Rights and Welfare of the Child, to ensure maximum survival and development of children, non-discrimination of children, respecting of childrens right to air opinions and securing of the best interests of children.
Registration 3.
Registration of institutions (1) Any person or body of persons that intends to operate an institution shall apply for registration of the institution to the Council through the Area Advisory Council operating in their area in the form set out in the First Schedule, and where such a person or body of persons wish to operate more than one institution, it shall present separate applications for each institution.
(2) An application for registration shall be accompanied by the following (a) in the case of an unincorporated body of persons, a list of trustees of that body; (b) in the case of a body corporate or any other body which is by law required to be registered, a certificate of registration; (c) copy of the proposed mission or policy statement of the institution, which shall comprise of matters set out in the Ninth Schedule.
(3) The Area Advisory Council shall acknowledge receipt of every application for registration in the form set out in the Second Schedule, within thirty days after the date of receipt, and shall indicate the date (which shall not be later than thirty days from the date of receipt) when the Area Advisory Council shall inspect the premises of the institution to ascertain whether it meets the requirement set out in the Third Schedule.
(4) The Area Advisory Council shall (a) if it finds that the requirements of the Third Schedule have been complied with after inspection, place the application for registration before the Director, together with its recommendations, within fourteen days from the date of inspection; [Issue 1] 162 [Rev.
2012] CAP.
141 Children [Subsidiary] (b) if after inspection it finds that the requirements of the Third Schedule have not been complied with, undertake the following (i) make recommendations for improvement to the administering authority, for implementation before the next inspection, if the continued operation of the institution does not pose a danger to the welfare of the children; or (ii) recommend to the Director for the immediate closure of the institution and make arrangements for placing the children accommodated in the institution in other institutions: Provided that if a decision is made under subparagraph (ii), the administering authority may within thirty days from the date of closure, appeal to the Minister.
(5) The appeal to the Minister shall be made in the form set out in the Fourth Schedule.
(6) The Director shall, when all the requirements for registration have been complied with and after consultation with the Council recommend to the Minister to issue a Certificate of Registration to the successful applicant.
(7) The form set out in the Fifth Schedule is prescribed as the form of Certificate of Registration for the purposes of subregulation (6).
(8) No organisation shall operate as an institution unless it has been registered under these Regulations.
(9) Without prejudice to the generality of the foregoing, every institution that had been registered under the Children and Young Persons Act (Cap.
141) (now repealed) shall be deemed to continue as if it had been registered under these Regulations but shall be required to comply with the Regulations and renew its registration accordingly within one year of coming into force of the Regulations.
3A.
Duration and renewal of registration (1) Without prejudice to the provisions of regulation 3B, the registration of an institution under regulation 3 shall be for a period of three years.
(2) Every institution registered under these Regulations shall apply for renewal of registration in a prescribed manner upon expiry of three years from the date of initial registration, or the date of the last renewal of registration, whichever is the case.
[L.N.
27/2007, s.
2.] 3B.
Cancellation of registration (1) The Minister may, upon recommendation of the Council, cancel the registration of an institution (a) if a programme undertaken by such institution is cancelled in accordance with section 71 of the Act; (b) when there is manifest failure or refusal to comply with the provisions of the Act or these Regulations; (c) in any other case where it becomes reasonably expedient for the better carrying out of the objects of the Act and Regulations made thereunder.
(2) An institution shall not have its registration cancelled under subregulation (1)(b) or (c) unless it has been accorded a reasonable opportunity to make representations to the Council on the intended cancellation of registration.
163 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] (3) The Council shall give to an institution a written notice of its intention to have the registration of such an institution cancelled, and shall accordingly invite the institution to make its representations within thirty days from the date of such notice.
(4) The Director shall give to an institution a written notice of cancellation of registration within fourteen days from the date of cancellation.
(5) An institution whose registration has been cancelled under this regulation may make a fresh application for registration in accordance with regulation 3.
[L.N.
27/2007, s.
2.] 4.
Implementation of child welfare programmes (1) For purposes of section 69 of the Act, any registered institution that wishes to implement a child welfare programme shall notify the Area Advisory Council in the form prescribed in the Sixth Schedule.
(2) The Area Advisory Council shall acknowledge receipt of such notification in writing indicating to the institution the time of inspection by the Area Advisory Council, if necessary, within fourteen days from the date of notification.
(3) The Area Advisory Council shall submit to the Director details (with recommendations) of the proposed child welfare programme within fourteen days of the date of notification, and the Director shall then place the same before the Council.
(4) The Council shall either (a) approve the whole or part of the programme if it complies with the requirements set out in the Seventh Schedule, and shall issue the institution with a Certificate of Approval prescribed in the Eighth Schedule; or (b) disapprove the whole or part of the programme if it does not comply with the requirements set forth in the Seventh Schedule.
Mission and Policy Statement and Childrens Guide 5.
Mission and policy statement (1) The administering authority shall compile in relation to an institution a written statement (hereinafter referred to as the mission and policy statement) which shall comprise of matters set out in the Ninth Schedule.
(2) The administering authority shall provide a copy of the mission and policy statement to the Area Advisory Council and shall make a copy of it available upon request for inspection by (a) any person who works at the institution; (b) any child accommodated in the institution; (c) the parent of any child accommodated in the institution; (d) the placing authority of any child accommodated in the institution; (e) any other person who may be authorised by law.
In this regulation, references to a child who is being accommodated in the institution include a child who is being considered for accommodation in the institution.
(3) The administering authority shall produce a guide to the institution (hereinafter referred to as the childrens guide) which shall include (a) a summary of the institutions mission and policy statement; (b) a summary of the complaints procedure; and [Issue 1] 164 [Rev.
2012] CAP.
141 Children [Subsidiary] (c) postal and physical addresses of the Area Advisory Council, the areas District Childrens Officer and any other agency that offer services to children.
(4) The childrens guide shall be produced in a form appropriate to the age, understanding and common needs of the children to be accommodated at the institution.
(5) The administering authority shall provide a copy of the childrens guide to the Area Advisory Council and to each child accommodated in the institution upon admission.
(6) The administering authority shall ensure that the institution is at all times run in a manner consistent with its mission and policy statement.
6.
Review of mission and policy statement and childrens guide (1) The administering authority shall keep the childrens guide and mission and policy statement under review from time to time and where appropriate, make such revisions as it deems necessary.
(2) Where revisions are made to the childrens guide and mission and policy statement, the administering authority shall notify the Area Advisory Council of such revisions within thirty days of making the revisions, and shall accordingly furnish the Area Advisory Council with a copy of the revised childrens guide and mission and policy statement.
(3) Where the childrens guide is revised, the administering authority shall provide a copy of the revised copy to each child accommodated in the institution.
Welfare of Children 7.
Promotion of welfare (1) The administering authority shall make suitable arrangements to ensure that an institution is operated so as to (a) promote and make proper provision for the welfare of children accommodated there; and (b) make proper provision for the holistic care, education, supervision and treatment of children hosted there.
(2) The administering authority shall make suitable arrangements to ensure that an institution is managed (a) in a manner which respects the privacy and dignity of children accommodated there; and (b) with due regard to gender, religious beliefs, racial origin, tribal, cultural and other background, and any special needs including disability of children accommodated there.
8.
Child placement plan (1) The administering authority shall, before providing accommodation to a child in an institution, or if that is not possible, as soon as possible thereafter, prepare, after conducting a needs assessment of the child, a written plan (hereinafter referred to as the placement plan) for the child, setting out in particular (a) how, on a day to day basis, he will be cared for, and his welfare safeguarded and promoted by the institution; (b) the arrangement for his healthcare and education; (c) any arrangements made for contact with his parents, relatives and friends; and 165 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] (d) arrangements for the childs care after the child leaves the institution, which shall include his home environment adjustment plan.
(2) The administering authority shall review the placement plan annually, and where appropriate revise it as it deems necessary.
(3) In preparing or reviewing the placement plan, the administering authority shall so as far as practicable, having regard to the childs age and understanding, seek and take account of the childs views.
(4) The administering authority shall so far as is practicable (a) ensure that the placement plan is consistent with any plan for the care of the child prepared by his placing authority; and (b) comply with requests made by the childs placing authority to (i) provide it with information concerning the child; and (ii) provide a suitable representative to attend any meetings it may hold concerning the child.
(5) The administering authority shall at all times ensure that all children accommodated at the institution have the requisite court orders.
9.
Food provided to the children (1) The administering authority shall ensure that children accommodated in the institution are provided with (a) food which (i) is served in adequate quantities and at appropriate intervals; (ii) is properly prepared, wholesome, balanced and nutritious; (iii) is suitable for their needs; and (iv) is sufficiently varied; (b) access to fresh, clean, drinking water at all times.
(2) The administering authority shall ensure that any special dietary needs of a child accommodated in the institution, which is due to health, religion, race, tribe or cultural background is met.
10.
Provision of clothing and personal necessities (1) The administering authority shall ensure that children accommodated in the institution are appropriately and adequately clothed and shall ensure the clothing meets their needs.
(2) The administering authority shall provide all necessary facilities and resources to ensure that the personal necessities of each child accommodated in the institution are met paying due regard to the childs age, gender and any other special needs.
11.
Contact and access to information (1) The administering authority shall (a) promote the contact of each child with his parents, relatives and friends in accordance with the arrangements set out in his placement plan; and (b) ensure that suitable facilities are provided within the institution for any child accommodated there to meet privately at any reasonable time, giving due regard to the institutions programme of activities, with his parents, relatives, or any person authorised by law.
[Issue 1] 166 [Rev.
2012] CAP.
141 Children [Subsidiary] (2) The administering authority shall ensure that children accommodated at an institution are provided at all reasonable times and as far as practicable, with access to relevant facilities for their communication with the outside world.
(3) Subject to regulation 17(6)(c), the administering authority may impose such restrictions, prohibitions or conditions upon a childs contact and communication if it is satisfied it is necessary for the purpose of safeguarding or promoting the welfare of the child in question, and where this is done the reasons thereof shall be recorded in the childs case records.
12.
Education, leisure activity and employment (1) The administering authority shall promote the educational attainment of children accommodated in an institution, in particular by ensuring that (a) the children make use of educational facilities appropriate to their age, aptitude, needs, interests and potential; (b) the routine of the institution is organised so as to further childrens participation in education, including private study; and (c) effective links are maintained with any schools attended by children accommodated in the institution.
(2) The administering authority shall promote extra-curricular activities and ensure that children accommodated in the institution are (a) encouraged to develop and pursue appropriate leisure activities; and (b) provided with appropriate play, recreational, and leisure facilities.
(3) Where any child in an institution has attained the age where he is no longer required to receive compulsory full-time education, the administering authority shall assist with the making of, and giving effect to, the arrangements made for his education, training and employment with due regard to the childs views.
13.
Religious observance The administering authority shall ensure that each child accommodated in an institution, so far as practicable (a) attend the services of; (b) receive instruction in; and (c) observe any requirement (whether as to dress, diet or otherwise) of, the religious persuasion to which he belongs: Provided that no child shall be forced to observe or participate in religious activities which are not of the childs persuasion.
14.
Health needs of children (1) The administering authority shall promote and protect the health of the children accommodated in an institution.
(2) In particular the administering authority shall ensure that (a) each child has access to such medical, dental, nursing, psychological and psychiatric advice, treatment and other services as he may require; (b) each child is provided with such individual support, aids and equipment as the child may require as a result of any particular health or special needs he may have; 167 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] (c) each child is provided with such individual support and advice on health and personal care issues appropriate to his needs and wishes, and that female children are provided with appropriate and adequate sanitary facilities; (d) at all times and depending on the number of children, at least one person on duty at the childrens institution has a suitable first aid qualification; (e) any person appointed to the position of nurse at the institution is a registered nurse.
15.
Hazard and safety The administering authority shall ensure that (a) all parts of the institution to which children have access are free from hazards to their safety; (b) activities in which children participate are so far as reasonably practicable free from avoidable risks; (c) unnecessary risks to the health or safety of children accommodated in the home are eliminated, and shall make suitable arrangements for all children, and persons working at the institution to be trained in first aid and disaster preparedness and management.
16.
Complaints and representation (1) The administering authority shall establish a written procedure for considering complaints made by or on behalf of children accommodated in the institution.
(2) The procedure shall, in particular, provide (a) for an opportunity for informal resolution of the complaint at an early stage; (b) that no person who is a subject of a complaint takes any part in its consideration other than, if the administering authority considers it appropriate, at the informal resolution stage only; (c) for dealing with complaints about the person in charge and/or persons in authority; (d) for complaints made by person acting on behalf of a child; (e) for arrangements for the procedure to be known and copies be availed to (i) children accommodated in the institution; (ii) their parents; (iii) placing authority; and (iv) persons working in the institution.
(3) The administering authority shall ensure that a written record is made of any complaint, the action taken in response, and the outcome of investigation (if any).
(4) The administering authority shall ensure that (a) children accommodated in the institution are enabled to make a complaint or representation; and (b) no child is subject to any reprisal for making a complaint or representation.
17.
Behaviour management policy (1) The administering authority shall develop a policy (hereinafter referred to as the behaviour management policy) for the maintenance of good behaviour of children accommodated in the institution.
[Issue 1] 168 [Rev.
2012] CAP.
141 Children [Subsidiary] (2) The behaviour management policy shall outline (a) measures of control, restraint and discipline; (b) reward measures for the childrens good behaviour; (c) persons other than the person in charge authorised to use the measures; (d) events, occasions, acts or omission that would invite the use of such measures; (e) the procedures to be undertaken, giving a child a chance to be heard, before the measures are undertaken.
(3) The administering authority shall provide a copy of the behaviour management policy to (a) the child upon admission to the institution; (b) the parents or guardians of the child; and (c) the Area Advisory Council.
(4) The administering authority shall (a) keep the behaviour management policy under review, and where appropriate revise it as it deems necessary; and (b) notify the Council of any such revisions within twenty-eight days from the date of revision.
(5) The administering authority shall ensure that within twenty-four hours of the use of any measure of control, restraint or discipline in an institution, a written record is made in a volume kept for the purpose which shall include (a) the name of the child concerned; (b) details of the childs behaviour leading to the use of the measure; (c) a description of the measure used; (d) the date, time and location of the use of the measure, and in the case of any form of restraint, the duration of the restraint; (e) the name of the person using the restraint; (f) the effectiveness and any consequences of the use of the measure; and (g) the signature of the person authorised to make the record.
(6) The following shall not be used as a disciplinary measure on children accommodated in an institution (a) any form of corporal punishment; (b) any punishment relating to the consumption or deprivation of food or drink; (c) any restriction, other than one imposed by a court or in accordance with regulation 11(3) on (i) a childs contact with his parents, relatives or friends; (ii) visits to him by his parents, relatives or friends; (iii) a childs communication with any persons authorised by law to contact the child in accordance with regulation 11(1)(b); (d) any requirement that a child wear any distinctive or inappropriate clothes; (e) the use or withholding of medication or medical or dental treatment; (f) the intentional deprivation of sleep; 169 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] (g) the imposition of any financial penalty, other than a requirement for the payment of a reasonable sum (which may be by instalments) by way of reparation; (h) any intimate physical examination of the child; (i) the withholding of any aids or equipment needed by a disabled child; (j) any measure which involves (i) any child in the imposition of any measure against any other child; or (ii) the punishment of a group of children for the behaviour of an individual child; (k) any measures which are degrading, dehumanising or cruel.
Staffing 18.
Appointment of person in charge (1) The administering authority shall appoint a person (to be known as the person in charge) to manage an institution.
(2) A person shall not manage an institution unless he is fit to do so and shall be deemed as such if (a) he is of integrity and good character; (b) having regard to the size of the institution, its mission and policy statement, and the number and needs (including any needs from any disability) of the children accommodated there (i) he has the qualifications, skills and experience necessary for managing the institution; and (ii) he is physically and mentally fit to manage the institution; (c) full and satisfactory information is available in relation to him on matters specified in the Tenth Schedule.
19.
Staffing of institutions (1) The administering authority shall ensure that there is at all times, having regard to (a) the size of an institution, the mission and policy statement, the number and the needs (including any needs arising from disability) of the children accommodated there; and (b) the need to safeguard and promote the health and welfare of the children accommodated in the institution, a sufficient number of suitably qualified, competent and experienced persons working at an institution and shall at all times ensure the following persons are employed (i) qualified social worker(s); (ii) person in charge of preparation of food as per regulation 9; (iii) person in charge of the health of children accommodated in the institution.
(2) The administering authority shall ensure that the employment of any person on voluntary or temporary basis at the institution will not prevent children from receiving such continuity of care as is reasonable to meet their needs.
[Issue 1] 170 [Rev.
2012] CAP.
141 Children [Subsidiary] 20.
Fitness of workers (1) The administering authority shall not (a) employ a person to work at an institution unless the person is fit to work at an institution; or (b) allow a person who is employed by another person (other than the administering authority of the institution) working at the institution in close and regular contact with the children accommodated there, to work in the institution if he is not fit to do so.
(2) For the purposes of subregulation (1), a person is not fit to work at an institution unless (a) he is of integrity and good character; (b) he has the qualifications, skills and experience necessary for the work he is to perform; (c) he is physically and mentally fit for the purposes of the work he is to perform; and (d) full and satisfactory information is available in relation to him in respect of matters outlined in the Tenth Schedule.
(3) The administering authority shall ensure that (a) any offer of employment to a person is subject to subregulation (2)(d) being complied with in relation to that person; and (b) unless subregulation (4) applies, no person starts work at an institution until such time that subregulation (2)(d) has been complied with in relation to him.
(4) Where the following conditions apply, the administering authority may permit a person to start work at an institution notwithstanding subregulation (3)(b) (a) the administering authority has taken all reasonable steps to obtain full information in respect of all the matters listed in the Tenth Schedule in respect of that person, but the inquiries in relation to any of the matters listed in subregulations (3) to (6) of the Tenth Schedule are incomplete; (b) full and satisfactory information in respect of that person has been obtained in relation to the following (i) subregulation (1) of the Tenth Schedule; (ii) except where subregulation (4) above applies, subregulation (2) of the Tenth Schedule; (iii) where subregulation (4) above applies, subregulation (7) of the Tenth Schedule; (c) the administering authority considers that the circumstances are exceptional; (d) pending receipt of, and satisfying himself with regard to, any outstanding information, the administering authority ensures that the person is appropriately supervised while carrying out his duties.
21.
Employment of staff (1) The administering authority shall employ staff in accordance with the prevailing labour regulations and shall (a) ensure that all permanent appointments are subject to the satisfactory completion of a period of probation; and (b) provide all employees with a job description outlining their responsibilities.
171 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] (2) The administering authority shall operate a disciplinary procedure which shall, in particular (a) provide for the suspension of an employee where necessary in the interest of the safety or welfare of children accommodated in the institution; and (b) provide that failure on the part of an employee to report an incident of abuse, or suspected abuse, of a child accommodated in the institution is a ground on which disciplinary proceedings may be instituted.
(3) The administering authority shall ensure that all persons employed by it (a) receive appropriate training, supervision and appraisal; and (b) are enabled from time to time to obtain further qualifications appropriate to the work they perform.
Records 22.
Childrens case records (1) The administering authority shall maintain in respect of each child who is accommodated in an institution a record in permanent form which shall (a) include the information, documents and records specified in the Eleventh Schedule relating to that child; (b) be kept up to date; and (c) be signed and dated by the author of each written record.
(2) The record mentioned in subregulation (1) shall not be disclosed to any person except in accordance with (a) any provision of, or under, or by virtue of, any law authorising such access; or (b) any court order authorising access to such records.
(3) The record mentioned in subregulation (1) shall be (a) kept securely in the institution so long as the child to whom it relates is accommodated there; and (b) thereafter retained in a secure place.
23.
Other records The administering authority shall maintain in an institution such records as are specified in the Twelfth Schedule and shall ensure that they are kept up to date at all times.
24.
Notable events (1) If, in relation to an institution, any of the events listed in column 1 of the table in the Thirteenth Schedule takes place, the person in charge shall without delay notify the persons indicated in respect of the event in column 2 of the table.
(2) The administering authority shall, without delay, notify the parent of any child accommodated in an institution of any incident affecting the childs welfare, unless to do so is not reasonably practicable or would place the childs welfare at risk.
(3) Any notification made orally in accordance with this regulation shall be confirmed in writing within a reasonable period.
[Issue 1] 172 [Rev.
2012] CAP.
141 Children [Subsidiary] Premises 25.
Fitness of premises (1) The administering authority shall not use premises for purposes of an institution unless they are in a location, and of physical design and layout, which are suitable for the purpose of achieving the aims and objectives set out in the institutions mission and policy statement.
(2) The administering authority shall ensure that all parts of the institution used by children are (a) well lit, ventilated and adequately heated or cooled if necessary; (b) secure from unauthorised access; (c) suitably furnished and equipped; (d) kept clean and decorated in a child-friendly manner and reasonably maintained; (e) of good construction and kept in good structural repair externally and internally as per laid down standards of building and construction; and (f) equipped with what is reasonably necessary, and adapted as necessary, in order to meet the needs arising from the disability of any child with disability accommodated in the institution so as to enable him to live as normal a life as possible.
(3) The administering authority shall ensure the environment around the institution is clean and shall make suitable arrangements for the disposal of general and clinical waste: Provided that children shall not be used in the disposal of clinical waste or in any manner that exploits them.
(4) The administering authority shall ensure that there are, within the institution for use by children accommodated there in conditions of appropriate privacy (a) a sufficient number of wash basins, showers or baths with a constant supply of clean water; and (b) a sufficient number of toilets or ablutions, for the number, age and gender of children accommodated there.
(5) The administering authority shall provide for the number and needs of children accommodated in the institution (a) sufficient and suitable kitchen, kitchen equipment and utensils; (b) adequate facilities for preparation and storage of food.
(6) The administering authority shall as far as is practicable ensure that there are, within an institution, adequate facilities for laundering linen and clothing, and, for children wishing to do so, to wash, dry and iron their own clothes.
(7) The administering authority shall ensure that there is provided within an institution (a) adequate communal space for sitting, playing, recreation and dining; and (b) such facilities for private study as are appropriate to the age and educational needs of the children accommodated.
(8) The administering authority shall ensure that each child is provided with sleeping accommodation which is (a) suitable to his needs, including his need for privacy; and 173 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] (b) equipped with furniture, storage facilities, lighting, bedding and other furnishings including windows suitable to his needs.
(9) The administering authority shall ensure that no child shares a bedroom or sleeping quarters with an adult, nor a child who is of the opposite gender or of a significantly different age to him.
(10) The administering authority shall provide persons working at the institution with (a) suitable facilities and accommodation, other than sleeping accommodation, including (i) facilities for the purposes of changing clothes; (ii) storage facilities; (b) sleeping accommodation where the provision of such accommodation is needed in connection with their work at the home.
26.
Fire outbreak precautions (1) The administering authority shall (a) take adequate precautions against the risk of fire outbreaks, including the provision of suitable fire fighting equipment; (b) provide adequate means of escape in the event of a fire outbreak; (c) make adequate arrangements for (i) detecting, containing and extinguishing fire outbreaks; (ii) for giving warnings of a fire outbreak; (iii) for evacuation in the event of a fire outbreak; (iv) for the maintenance of all fire fighting equipment; and (v) for reviewing fire outbreak precautions, and testing fire fighting equipment at suitable intervals; (d) make arrangements for persons working at the institution to receive suitable training in fire outbreak prevention; (e) ensure, by means of fire drills and practices at suitable intervals, that persons working at the institution and, so far as practicable, children accommodated there, are aware of the procedure to be followed in the case of a fire outbreak.
(2) To achieve the requirements in subregulation (1), the person in charge shall, where possible, consult with the relevant fire fighting authorities.
Management of Institutions 27.
Visits by authorised persons (1) Where the administering authority is not itself carrying on the day to day running of the institution, it shall make arrangements for the institution to be visited at least once every month by an authorised person who shall satisfy himself that the institution is managed in the best interests of the children accommodated there.
(2) The person authorised to make a visit to an institution shall furnish a report to the administering authority after every visit he makes, and the administering authority shall forward the report to the Area Advisory Council.
28.
Inspection by Area Advisory Council, inspection committee, etc.
For purposes of sections 67 and 68 of the Act, the administering authority shall ensure at all times that inspection of an institution by an Area Advisory Council, inspection [Issue 1] 174 [Rev.
2012] CAP.
141 Children [Subsidiary] committee or an authorised officer is carried out smoothly, and shall provide all the relevant information required and ensure that all areas are accessible, and that all persons required for interviewing purposes are available.
29.
Review of quality of care (1) The administering authority shall establish and maintain a system for (a) monitoring the matters set out in the Fourteenth Schedule at appropriate intervals; and (b) improving on the quality of care provided in the institution.
(2) The administering authority shall provide the Area Advisory Council with a report in respect of any review conducted by it for the purposes of subregulation (1) and make a copy of the report available on request to children accommodated in the institution, their parents and placing authority.
(3) The system referred to in subregulation (1) shall provide for consultation with children accommodated in the home, their parents and placing authority.
30.
Regulations and guidance The administering authority shall ensure that a copy of these Regulations (and of any amendments thereof) are kept in the institution and made available on request to (a) any person working in the institution; (b) any child accommodated in the institution; and (c) the parent or guardian of any child accommodated in the institution.
31.
Financial position (1) The administering authority shall run an institution in such manner as is likely to ensure that the institution will be financially viable for the purpose of achieving the aims and objectives set out in its mission and policy statement: Provided that the administering authority shall notify the Area Advisory Council of any intention of winding up the institution or any foreseeable circumstances that may lead to the winding up of the institution.
(2) It shall be an offence for the administering authority to use children accommodated at an institution in any exploitative way in the name of raising funds for the institution.
(3) The administering authority shall (a) ensure that adequate accounts are maintained and kept up to date in respect of an institution; (b) provide a copy of the audited accounts to the Council at its request.
(4) The administering authority shall provide the Area Advisory Council with such information as it may require for the purpose of considering the financial viability of the institution, including (a) the annual audited accounts of the institution certified by a person who is a holder of a practising certificate issued pursuant to section 21 of the Accountants Act (Cap.
531); (b) information as to the financing and financial resources of the institution; (c) a statement from the bank expressing an opinion as to the institutions financial standing.
175 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] Miscellaneous 32.
Notice of absence (1) Where the person in charge or any other person involved in the day to day running of an institution proposes to be absent from the institution for a period of twenty-eight days or more, the administering authority shall give notice in writing to the Area Advisory Council through the District Childrens Officer of the proposed absence.
(2) Except in the case of an emergency, the notice referred to in subregulation (1) shall be given not later than thirty days before the proposed absence commences, or within such shorter period as may be agreed with the Area Advisory Council, and the notice shall specify with respect to the proposed absence (a) its length or expected length; (b) the reason for it; (c) the arrangements which have been made for running the institution; and (d) the name, address and qualifications of the person who will be responsible for the home during the absence.
(3) Where the absence arises as a result of an emergency, the registered person shall give notice of the absence within seven days from the date of such absence specifying the matters mentioned in subregulation (2)(a) to (d).
(4) Where the person in charge has been absent from an institution for a continuous period of twenty eight days or more, and the Area Advisory Council has not been informed of such absence, the administering authority shall without delay give notice in writing to the Area Advisory Council specifying the matter mentioned in subregulation (2)(a) to (d).
(5) Upon return to duty, the person in charge shall notify the Area Advisory Council of his return to duty not later than seven days from the date of return.
33.
Notice of changes The administering authority shall give notice in writing to the Area Advisory Council as soon as it is practicable to do so if any of the following events take place or are proposed to take place (a) change of management of the institution; (b) where the administering authority is an organisation (non-governmental or religious), if (i) the name of the organisation is changed; (ii) there is any change of director, manager or other similar office in the organisation; (iii) there is to be any change in the identity of any individual; (c) where the administering authority is an individual, if a trustee in bankruptcy is appointed, or he makes a composition or arrangement with his creditors; (d) the premises of the institution are significantly changed or extended, or additional changes are made.
34.
Offences A contravention or failure to comply with any of the matters provided in these Regulations shall constitute an offence.
[Issue 1] 176 [Rev.
2012] CAP.
141 Children [Subsidiary] 35.
Penalties Any person convicted of an offence under these Regulations shall be liable to imprisonment for a term not exceeding twelve months, or to a fine not exceeding fifty thousand shillings, or to both such imprisonment and such fine.
SCHEDULES FIRST SCHEDULE [Regulation 3.] FORM OF APPLICATION FOR REGISTRATION OF A CHARITABLE CHILDRENS INSTITUTION Type of organisation (NGO, religious, etc.):.
Year of inception:.
Name of institution:.
Physical address:.
Postal address:.
Telephone No.:.
E-mail:.
Name of Chairman (or person of similar office):.
Postal address: .Telephone No.:.
E-mail:.
Name of person in charge:.
Postal address:.
Telephone No.
.
E-mail:.
Does the institution already host children? Yes.
No.
If yes, what is the present capacity? (List total number of children):.
Boys.
Girls.
If no, what is the intended capacity? (List total number of children):.
Boys.
Girls.
I/We hereby make application for registration as a charitable childrens institution.
I/We have attached all relevant documents and information hereto.
Name:.
Designation:.
Signature:.
Date:.
FOR OFFICIAL USE ONLY Received by:.
Date:.
.
(Name, designation, signature) Application approved: Yes.
No.
177 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] SECOND SCHEDULE [Regulation 3.] ACKNOWLEDGEMENT OF RECEIPT OF APPLICATION (Insert name of Area Advisory Council) c/o District Childrens Officer (Insert District) Date.
This is to acknowledge and notify.
(name of organisation) of P.O.
Box.
that we are in receipt of your application for registration as a childrens charitable institution and we will be inspecting the institution on.
.
Thank you Yours faithfully.
.
District Childrens Officer THIRD SCHEDULE [Regulation 3.] CRITERIA FOR APPROVAL OF CHARITABLE CHILDRENS INSTITUTIONS 1.
Show proof of financial stability and sustainability.
2.
Must have a mission and policy statement.
3.
Adequate premises to meet objectives set out in the mission and policy statement.
4.
Adequate staffing to meet needs and objectives of the institution.
5.
If it is a non-governmental or religious organisation, it must show proof of registration.
6.
If it is an individual or body unincorporated, it must show a list of trustees.
7.
Must accommodate or have capacity to accommodate at least twenty children.
FOURTH SCHEDULE [Regulation 3.] FORM OF APPEAL AGAINST REJECTION OF APPLICATION FOR REGISTRATION AS A CHARITABLE CHILDRENS INSTITUTION To: The Minister for Home Affairs, Nairobi.
I/We the undersigned, on behalf of.
(name of organisation), wish to appeal against the decision of the Director rejecting our application for registration as a charitable childrens institution (attach copy of application) communicated to me/us by a letter attached herein dated.
on the following grounds: (State grounds for appeal) [Issue 1] 178 [Rev.
2012] CAP.
141 Children [Subsidiary] FOURTH SCHEDULEcontinued Name of Chairman (or person of similar office).
Signature.
Address.
Name of person in charge.
Signature.
Address.
Date.
FIFTH SCHEDULE [Regulation 3, L.N.
27/2007.] CERTIFICATE OF REGISTRATION OF A CHARITABLE CHILDRENS INSTITUTION This is to certify that.
(name of organisation) of P.O.
Box.
(registered office or location) has been granted registration as a charitable childrens institution under regulation 3(1) of the Children (Charitable Childrens Institutions) Regulations, 2005 for a period of three years from.
.
to.
Issued on the.
day of.
20.
Registration No.
.
.
Minister for Home Affairs SIXTH SCHEDULE FORM FOR NOTIFICATION OF ESTABLISHMENT OF A CHILD WELFARE PROGRAMME M/s.
of P.O.
Box.
duly registered as a charitable childrens institution do hereby notify the.
Area Advisory Council of our intention to implement a child welfare programme whose details are given hereunder.
Name/title of intended programme(s):.
Objectives Main objective:.
.
Specific objectives:.
.
179 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] SIXTH SCHEDULEcontinued Mode of Operation Area(s) of operations:.
Target group(s):.
Intended period of operation:.
Name of Chairman (or person of similar office):.
Signature:.
Date:.
Name of person in charge:.
Signature:.
Date:.
SEVENTH SCHEDULE [Regulation 4.] CRITERIA FOR ESTABLISHMENT OF CHILD WELFARE PROGRAMMES 1.
Must be established by a registered charitable childrens institution.
2.
Must show proof of resources, financial, human and otherwise, for running the programme.
3.
The programme must be relevant to the institutions mission and policy objectives, and must satisfy specific needs and be in the best interest of children accommodated in the institution.
EIGHTH SCHEDULE [Regulation 4.] CERTIFICATE OF APPROVAL OF CHILD WELFARE PROGRAMME National Council for Childrens Services P.O.
Box.
Nairobi This is to certify that.
(name of organisation) has been approved to implement whole/part(s) of child welfare programme as indicated hereunder, in accordance with section 69(1) of the Children Act (No.
8 of 2001).
Part(s) of Child Welfare Programme approved:.
.
.
.
.
Chairperson of Council Date [Issue 1] 180 [Rev.
2012] CAP.
141 Children [Subsidiary] NINTH SCHEDULE [Regulation 5.] MATTERS FOR INCLUSION IN THE MISSION AND POLICY STATEMENT 1.
A statement of the overall aims of the institution, and the objectives to be attained with regard to children accommodated in the institution.
2.
A statement of the facilities and services to be provided to children accommodated in the institution.
3.
The name and address of the person in charge.
4.
The relevant qualifications and experience of the person in charge.
5.
The number, relevant qualifications and experience of persons working in the institution, and if the workers are of the same gender, a description of the means whereby the home will promote appropriate role models of both genders.
6.
The arrangements for the supervision, training and development of employees.
7.
The organisational structure of the institution.
8.
The following details (a) the age-range, gender and number of children for whom it is intended that accommodation should be provided; (b) whether it is intended to accommodate children who are disabled, have special needs or any other special characteristics; and (c) the range of needs (other than those mentioned in subparagraph (b)).
9.
Any criteria used for admission to the institution, including the institutions policy and procedures for emergency admissions, if the institution provides for emergency admissions.
10.
If the institution provides or is intended to provide accommodation for more than twenty children, a description of positive outcomes intended for children in an institution of such size, and of the institutions strategy for counteracting any adverse effects arising from its size on the children accommodated there.
11.
The arrangements made to protect and promote the health of the children accommodated in the institution.
12.
The arrangements for the promotion of the education of the children accommodated in the institution, including facilities for private study.
13.
The arrangements to promote childrens participation in recreational, sporting and cultural activities.
14.
The arrangements made, for the consultation with the children accommodated, about the operation of the institution.
15.
The arrangements for the prevention and protection of children against abuse.
16.
The fire precautions and any other emergency procedures in the institution.
17.
The arrangements for the childrens religious instructions and observance.
18.
The arrangements for contact between a child and his parents, relatives and friends.
181 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] 19.
The arrangements for dealing with complaints.
20.
The arrangements for dealing with reviews of placement plans.
21.
The type of accommodation, including the sleeping accommodation, provided, and, where applicable, how children are to be grouped, and in what circumstances they are to share bedrooms.
22.
A description of the institutions policy in relation to anti-discriminatory practice as respects children and their rights.
TENTH SCHEDULE [Regulation 18.] INFORMATION REQUIRED IN RESPECT OF PERSONS SEEKING TO CARRY ON, MANAGE OR WORK AT AN INSTITUTION 1.
Proof of identity including a recent photo.
2.
A certificate of good conduct from the police and details of any criminal offences a person may have been charged with in a court of law, particularly those outlined in the Third Schedule to the Act.
3.
Three written references, including a reference from the persons most recent employer, if applicable.
4.
Where a person has previously worked in a position whose duties involved work with children or vulnerable adults, so far as reasonably practicable, verification of the reason why the employment or position ended.
5.
Documentary evidence of any qualifications.
6.
A full employment history, together with a satisfactory written explanation of any gaps in employment.
ELEVENTH SCHEDULE [Regulation 22.] INFORMATION TO BE INCLUDED IN THE CASE RECORDS OF CHILDREN ACCOMMODATED IN INSTITUTIONS 1.
The childs name and any name by which the child has previously been known, other than a name used by the child prior to adoption.
2.
The childs date of birth and gender.
3.
The childs religious persuasion, if any.
4.
The childs background information and home particulars immediately before entering the institution.
5.
The statutory provisions under which he is provided with accommodation.
[Issue 1] 182 [Rev.
2012] CAP.
141 Children [Subsidiary] 6.
The date and circumstances of all absences of the child from the institution, including whether the absence was authorised and any information relating to the childs whereabouts during the period of absence.
7.
The date of, and reason for, any visit to the child whilst in the institution and reasons for the prohibition, control, restrictions or conditions placed upon a childs contact with parents, friends or any other person authorised by law.
8.
A copy of any statement of special educational needs maintained in relation to the child.
9.
The date and circumstances of any measure of control, restraint or discipline used on the child.
10.
Any special dietary or health need of the child.
11.
The name, address and telephone number of any school or learning institution attended by the child.
12.
Every school or learning institutions report received in respect of the child while accommodated in the institution.
13.
Arrangements for, including any restrictions on, contact between the child, his parents and any other person.
14.
A copy of any plan for the care of the child prepared by his placing authority, and of the placement plan.
15.
The date and result of any review of the placing authoritys plan for the care of the child, or of his placement plan.
16.
Details of any accident or serious illness involving the child while accommodated in the institution.
17.
Details of any immunisation, allergy, or medical examination of the child and of any medical or dental need or treatment of the child.
18.
Details of any health examination or development test conducted with respect to the child or in connection with his school.
19.
Details of any medicines kept for the child in the institution, including any medicines which the child is permitted to take himself, and details of the administration of any medicine to the child.
20.
The dates on which any money or valuables are deposited by or on behalf of a child for safekeeping, and the dates on which any money is withdrawn, and any other valuables are returned.
21.
The address, and the type of any establishment or accommodation, to which the child goes when he ceases to be accommodated in the institution.
183 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] TWELFTH SCHEDULE [Regulation 23.] OTHER RECORDS WITH RESPECT TO INSTITUTIONS 1.
A record in the form of a register showing in respect of each child accommodated in an institution (a) date of his admission to the institution; (b) date on which he ceased to be accommodated there; (c) address prior to being accommodated in the institution; (d) address on leaving the institution; (e) his placing authority; (f) the statutory provision under which he is accommodated.
2.
A record showing in respect of each person working at the institution (a) full name; (b) gender; (c) date of birth; (d) home address; (e) qualifications relevant to, and experience of, work involving children; (f) whether he works at the home full-time or part-time (whether paid or not), and if part-time, the average number of hours worked per week; and (g) whether he resides at the institution.
3.
A record of any persons who reside or work at any time at the institution, who are not mentioned in the records kept in accordance with paragraph 1 or 2.
4.
A record of all deaths and requisite documents, and accidents occurring in the institution, or to children whilst accommodated at the institution.
5.
A record of the receipt, disposal and administration of any medicine to any child.
6.
A record of every fire drill or fire alarm test conducted, with details of any deficiency noted.
7.
A record of all money deposited by a child for safekeeping, together with date on which that money was withdrawn, or the date of its return.
8.
A record of all valuables deposited by a child and the date of their return.
9.
A record of all accounts kept in the institution.
10.
A record of menus served.
11.
A copy of the staff duty roster for persons working at the institution and a record of the actual rosters worked.
12.
A daily programme of events occurring in the institution.
13.
A record of all visitors to the institution and to the children accommodated in the institution, including the names of visitors and reasons for the visit.
[Issue 1] 184 [Rev.
2012] CAP.
141 Children [Subsidiary] THIRTEENTH SCHEDULE [Regulation 24.] EVENTS AND NOTIFICATION Column 1 Column 2 Event: To be notified to: Director/District Placing Police Health Parent Childrens Authority Authority Officer Death of a child accommodated in the yes yes yes yes yes institution.
Serious injury or accident sustained by a child in the yes yes yes institution.
Outbreak of any infectious disease which in the opinion of the medical practitioner yes yes yes yes attending to the children at the institution is serious enough to be notifiable.
Allegation that a child has yes yes committed a serious offence.
Serious incident necessitating yes yes calling the police.
Absconding/escape by a yes yes child.
Any serious complaint about the home or persons working yes yes there.
Investigation and outcome of any child protection enquiry of yes yes a child.
FOURTHEENTH SCHEDULE [Regulation 29.] MATTERS TO BE MONITORED BY ADMINISTERING AUTHORITY 1.
In respect of each child accommodated in the institution, compliance with the placing authoritys plan for the care of the child (where applicable) and the placement plan.
2.
The deposit and issue of money and other valuables handed in for safekeeping.
3.
All accidents and injuries sustained in the institution or by children accommodated there.
4.
All illnesses of children accommodated in the institution.
5.
All allegations or suspicions of abuse in respect of children accommodated in the institution and the outcome of any investigation.
6.
Staff recruitment records and conduct of required checks for new workers in the institution.
185 [Issue 1] CAP.
141 [Rev.
2012] Children [Subsidiary] 7.
Visitors to the institution and to children in the institution.
8.
Notifications to the events in the Thirteenth Schedule.
9.
Any unauthorised absence from the institution of a child accommodated there.
10.
The use of measures of control, restraint and discipline in respect of children accommodated in the institution.
11.
Risk assessment for health and safety purposes and subsequent action taken.
12.
Medicines, medical treatment and first aid administered to any child accommodated in the institution.
13.
In the case of qualifying school, the standards of educational provisions.
14.
Duty rosters of persons working at the institution, and the rosters actually worked.
15.
The institutions daily programme of events.
16.
Fire drills and tests of fire equipment.
17.
Records of appraisal of employees.
18.
Minutes of staff meetings.
[Issue 1] 186.
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