The Children Act 2022 - as Plain Text by MWakili
NATIONAL COUNCIL FOR LAW REPORTING LIPR ARV SPECIAL ISSUE Kenya Gazette Supplement No.
119 (Acts No.
29) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2022 NAIROBI, 12th July, 2022 CONTENT Act PAGE 419 The Children Act, 2022 PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI 4 19 THE CHILDREN ACT, 2022 No.
29 of 2022 Date of Assent: 6th July, 2022 Date of Commencement: 26th July, 2022 ARRANGEMENT OF SECTIONS Section PART I PRELIM INARY 1 Short title.
2Interpretation.
3Objectives of the Act.
4 Conflict of law s.
PART IISAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CHILD 5Realization of the rights of the child.
6Survival and development of the child.
7^Name and nationality.
8Best interests of the child.
9^Non-discrimination.
10Differential treatment not discrimination.
11Right to parental care.
12Right to social security.
13Right to basic education.
14Right to leisure, recreation and play.
15Right to religious education.
16Right to healthcare.
17Right to inheritance.
18Protection fr om child labour.
19 Protection from armed conflict.
20Rights of children with disabilities.
21Rights of intersex children.
420 2022 Children No.
29 22Protection fr om abuse, etc.
23Protection fr om harmful cultural practices, etc.
2AProtection fr om drugs and substance abuse.
25Right to fr eedom fr om torture, etc.
26^Detention of children in conflict with the law.
27^Privacy.
28Right to assemble, demonstrate, petition and participate in public life.
29Enforcement of rights under this Part.
PART IIIPARENTAL RESPONSIBILITY 30Rights and responsibilities of a child.
31Parental responsibility.
32Equal parental responsibility.
33Parental responsibility agreement.
34^Transmission of parental responsibility.
35^Extension of responsibility beyond eighteenth birthday.
36^Regulations and guidelines.
PART IVADMINISTRATION OF CHILDRENS SERVICES 37Offi ce of the Secretary of Children Services.
38Functions of the Secretary.
39Powers of the Secretary.
40Appointment of chief officers, children officers.
Services.
41 Establishment of the National Council for Children 42 Functions of the Council.
43 Composition of the Council.
44 Term of office.
45 Vacancy of office of chairperson and members.
46 ^Remuneration of the Council.
: ' i(.
47 Committees of the Council.
/ / ' jjI 48 Staff of the Council.
421 2022 Children No.
29 49 The common seal of the Council.
50^Protection fr om personal liability.
51Proceedings against the Council.
52 Powers of the Council.
53Regulations by the Council.
54County Children Advisory Committees.
55Sub County Children Advisory Committees.
PART V FINANCIAL PROVISIONS OF THE COUNCIL 56 Funds of the Council.
57^Annual estimates.
58Financial year of the Council.
59Accounts and Audit.
60Annual reports of the Council.
PART VI ROLE OF COUNTY GOVERNM ENTS 61The role of county governments.
62County Government Welfare Schemes.
PART VII CHILDREN INSTITUTIONS 63Establishment of Children Rescue Centres.
64 Establishment of Child Protection Units.
65Charitable Childrens Institutions, etc.
66Manager and staff of Charitable Childrens Institution.
, 67Overriding objectives of Charitable Childrens Institutions.
68 Certain institutions not deemed to be Charitable Childrens Institutions.
69Change of user of institutions.
70Criteria for approval of programmes.
71 Placement of children in a Charitable Childrens I nstitution.
72Secretary to monitor the wellbeing of children.
73Inspection of Charitable Childrens Institutions.
74Duty to notify the Council.
422 2022 Children No.
29 75Review of child welfare programs.
76Deregistration of a child welfare programme.
77 Establishment of Childrens Remand Homes.
78^^Establishment of Rehabilitation Schools.
79^Rehabilitation schools to establish separate sections.
80Managers to admit children into rehabilitation school.
81^Leave of absence from school.
82 Revocation of childs comm ittal order.
83Transfers and supervision on release.
84^Absconding children and children of different character.
85 Removal to health institution.
86Authority to confi ne a child.
87Supervision of institutions.
88Inspection committ ee.
89^Regulations.
PART VIII CHILDRENS COURT 90Designation of the Childrens Court.
91 Jurisdiction of Childrens Court.
92^Friendly environment of Childrens Court.
93Sitt ing of Childrens Court.
94Power to make orders relating to privacy in proceedings.
Childrens 95General principles with regard to proceedings in Court.
96^Provision of legal aid in certain cases.
91^Power of Court to order production of reports.
98^Appointment of guardian ad litem.
99^Appeals.
100- Rules.
I ' PART IX CUSTODY AND M AINTENANCE : f.
( ) j ' / JOii l Jc i 101Custody, care and control.
423 2022 Children No.
29 102Custody order.
103^Principles to be applied in making custody order.
has 104Restriction on removal of a child where applicant provided home for three years.
105 ^Return of child removed in breach of section 106.
106Conflict of interest of joint custodians.
107Revocation of custody order.
108Interim custody orders.
109Custody agreement not to be invalid in certain circumstances.
110 Joint maintenance of children.
111 Power to make maintenance order.
112^^Maintenance during matrimonial proceedings.
113^Financial provision for child.
guardian.
114^Financial provisions by step-parents and presumptive to 115^^Power to order maintenance monies to be paid person other than the applicant.
116Duration of fi nancial provision orders.
117 Interim orders of maintenance.
118Other maintenance provisions.
119Power to impose conditions or to vary order.
120Power to vary maintenance agreements.
121 Enforcement orders for maintenance or contribution.
PART X GUARDIANSHIP 122^Appointment of guardian.
and 123^Rights of surviving parent as to guardianship power of Court.
124Customary guardianship.
125^Appointment of testamentary guardian.
126^Appointment of guardian by the Court.
127^Extension of appointment of guardian beyond childs eighteenth birthday.
424 2022 Children No.
29 128Revocation or disclaimer of appointment.
129^Disputes between guardians.
130^Powers of guardian.
of a 131^Neglect or misapplication of assets by guardian childs estate.
132Offences by guardian of a childs estate.
133 Power of Chief Justice to make Rules.
PART XI JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN 134Power of the Court to make orders in certain proceedings.
135Orders which Court may make.
136Supervision order.
137Power to make interim supervision order.
138Discharge of supervision order.
139 Power of arrest.
140Penalty.
141Review, etc., of order.
PART XH CHILDREN IN NEED OF CARE AND PROTECTION 142Interpretation.
143 Jurisdiction of the Court.
144When a child is in need of care and protection.
care and 145^Proceedings in respect of children in need of protection.
146 Healthcare.
147^Determination as to childs home, etc.
148Parent or guardian to be heard in any application.
149^Power of Secretary to take over application.
care 150Power of Court in respect of children in need of and protection.
151^Application of trusts for maintenance of children.
152^Penalty for cruelty to, and neglect of, children.
425 Children 2022 No.
29 153Care order and grounds thereof.
154 ^Access to children in care.
155Power to make interim care order.
156Discharge of care order.
157Care on committal to a rehabilitation school, etc.
158Transmission of committal order.
159Escort of a child to a rehabilitation school.
160Harbouring or concealing a child.
161Escape from institutions, etc.
County 162Duty of charitable childrens institutions and Public Entities.
163Escape from childrens remand home or rehabilitation school.
164^Aiding escape, etc.
165Production of escaped child.
166Presumption and detennination of age.
167Contribution order not to be made in certain cases.
168Inter-country reciprocity.
169 Bonds.
PART XIIIFOSTER CARE PLACEMENT 170Objectives of foster care placement.
171Restrictions on periods of foster care.
172Conditions for foster care placement.
173Application for foster care.
174Persons qualified to foster children.
175Conditions for foster care.
176Limitation on the number of children placed under foster care in a household.
177Records of foster care placements.
178Agreement for maintenance of foster child.
179 Termination of foster care.
426 Children 2022 No.
29 180Penalty for contravening provisions of this Part.
181Regulations.
182 Rules.
PART XIVADOPTION 183Power to make adoption orders.
184Pre-requisites for Adoption.
185Children who may be adopted.
186Who may apply to adopt a child.
187Power to dispense with consent.
188Appointment of guardian ad litem for purposes of adoption.
189 Interim orders.
190Review of adoption.
191Inter-country adoptions.
192Adoption by non-resident Kenyans.
193Kinship Adoption.
194Powers of the Court in adoption proceedings.
195Power of the Court to appoint guardian.
196Adoption order in respect of children previously adopted.
197Parental responsibility when adoption is denied.
198Appeals.
199 ^V ariation of orders.
200Adopted children register.
201Registration of adoption orders.
202Rights and duties of parents and capacity to marry.
203Application of Work Injury Benefits Act.
204Orders and agreements in respect of child bom outside marriage.
205Intestacies and testamentary instmments.
206Provisions supplementary to section 196.
207Effect of inter-country adoptions.
208Restriction on adoption arrangements.
427 Children 2022 No.
29 209Certain offences relating to adoption.
210Functions of adoption societies.
211Adoption proceedings to be confidential.
212Prohibition of certain payments.
213 Restriction on advertisement.
214 Offences under this Part.
215Regulations.
216Rules of Court.
PART XV CHILDREN IN CONFLICT W ITH THE LAW 217Application of Criminal Procedure Code.
218 Assessment of a child on arrest.
219 Power to remit cases to Childrens Court.
220Rights of a child offender.
221Criminal liability of a child.
222Right of a child to be heard in proceedings.
223 Detention of children.
the law.
224Procedure in cases of children in conflict with 225 Consideration of welfare.
226Objects of diversion.
227 When to consider diversion.
228Preliminary inquiry.
229Determination of a childs age.
230 Levels of diversion.
231 Power of Court in diversion.
232Family Group Conference.
233^Assistance to child offender in court.
234 Rules.
235Guarantees to a child accused of an offence.
236Duty to provide for the welfare of a child.
428 Children 2022 No.
29 Ti lW ords conviction and sentence not to be used of child.
238Restriction on punishment.
the 239^Methods of dealing with children in conflict with l aw.
240Mental treatment.
241Power to order parent to pay fines, etc.
242Special police unit.
a 243^Proceedings in respect of offences committed by child.
PART XVI M ISCELLANEOUS 244Appeals to the Cabinet Secretary.
245 Code of conduct.
246General penalty.
247General power to make regulations.
248Grants and expenses of the Cabinet Secretary.
249Repeals.
250Consequential Amendments SCHEDULES FIRST SCHEDULE BEST INTEREST CONSIDERATIONS SECOND SCHEDULECONDUCT OF BUSINESS AND AFFAIRS OF TH E COUNCIL THIRD SCHEDULEOFFENCES DISQUALIFYING AN APPLICANT FROM ADOPTION FOURTH SCHEDULEOFFENCES REQUIRING RECORD AND PRESERVATION OFINFO RM ATIONW IT H RE GA RD TO THE CONDITION OF TH E CHILD FIFTH SCHEDULEASSESSMENT OF A CHILD WHO IS IN CONFLICT W ITH THE LAW SIXTH SCHEDULECONSEQUENTIAL AMENDMENTS SEVENTH SCHEDULETRANSITIONAL PROVISIONS 429 Children 2022 No.
29 THE CHILDREN ACT, 2022 the AN ACT of Parliament to give effect to Article 53 of Constitution; to make provision for children rights, parental responsibility, alternative care of children including guardianship, foster care placement and adoption; to make provision for care and protection of children and children in conflict with the law; to make provision for, and regulate the administration of children services; to establish the National Council for Childrens Services and for connected purposes ENACTED by the Parliament of Kenya, as follows PART I PREL IM INA RY Short T itle.
1.
This Act may be cited as the Children Act, 2022.
2.
In this Act, unless the context otherwise requires 66 Interpretation.
abandoned in relation to a child, means a child (a) who has been deserted by the parent, guardian or caregiver; or (b) whose parent, guardian or care giver has wilfully failed to make contact with the child for a period of more than six months; actual custody means the physical possession, care is and control over a child, whether or not such custody exercised independently or jointly with another person; is adoption means the process through which a child permanently placed with a legal parent or parents in accordance with Part XIV ; adoption order means an adoption order made under section 183 vesting the parental rights and responsibilities relating to a child in the adopter; 66 adopter means a person in whose favour an adoption order is made; 66 aftercare means the services offered to children who living; leave alternative care as they transit to independent age means the actual chronological age of the child fr om conception or the childs apparent age as determined of by a Medical Officer in any case where the actual age the child is unascertainable; 430 Children 2022 No.
29 alternative care means the arrangement whereby a the child is looked aft er outside the parental home under provisions of this Act; ua authorised officer includes a police officer, a chief, a childrens officer, a probation offi cer, prison officer, registered medical practitioner, a labour offi cer, a teacher, under or any other offi cer authorized by the Secretary or any other written law for the purposes of this Act; basic education has the meaning assigned to it under No.
14 of 20 13.
section 2 of the Basic Education Act, 2013; best interest of the child means the principles that prime the childs right to suiwival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution and section 8 of this Act; 46 borstal in stitution means a borstal in stitution established under section 3 of the Borstal Institutions Act; Cap.
92.
Cabinet Secretary means the Cabinet Secretary for childrens the time being responsible for matters relating to affairs; U care and control with respect to a child, means all rights and duties which relate to the making of the day-to- day decisions concerning the child, and includes actual custody of a child; Chief Executive Officer means the Chief Executive Offi cer of the Council appointed under section 48; child means an individual who has not attained the age of eighteen years; child abuse includes a (a) the infliction of physical harm by any person on child; (b) the infliction or inducement of physical harm by any person on a child by acts intended to cause harm or negligent acts or omissions that cause harm; (c) the failure by any person to protect a child from physical harm or to report a case of child abuse; (d) act or omissions that affects a childs healthy social and emotional development.
and,',! functioning including 431 Children 2022 No.
29 (i) rej ection; (ii) i solation, including depriving the child of normal social interaction with others; (iii) deprivation of affection or cognitive stimulation; or (iv) inappropriate criticism or comparison with other children, discrimination, humiliation, threats, or malicious accusations, directed at a child; (e) the exposure of a child to emotionally, traumatic and age-inappropriate content, information and photos of any kind; (f) engaging a child in child sex tourism and child trafficking; (g) the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct; (h) the use or exposure of a child in, electronic or online, platforms for purposes of prostitution, pornography or any other unlawful sexual practice; (i) the use of a childs images for purposes of pornography or sexual gratification; (j) dissemination to a child of any material, information, education or health seiwices that promotes, induces, condones, or normalizes sexual activity or behaviour among children or with children; or (k) any other similar acts calculated to cause physical, emotional, economic or psychological inj ury to the child; means a child care facility childcare facility established by a county government pursuant to paragraph 9 of Part 2 of the Fourth Schedule to the Constitution and such other facility as the Cabinet Secretary may, in consultation with a county government, approve or license as a childcare facility; 432 Children 2022 No.
29 Childrens Court means a Court designated as a Children Court under Part VIII; charitable childrens institution means a childrens alone home or institution established by any person, either or in association with others, or by a civil society the organisation and which has been duly registered with the Council for the purpose of managing programmes for or control care, protection, rehabilitation and re-integration of children; Childrens institutions means institutions established under Part VII; is child in conflict with the law means a person who above the age of twelve years, but below the age of in eighteen years, who has been dealt with or punished accordance with Part XV of this Act or any other written law for contravention of the law; child labour means work done by a child which (a) is exploitative, hazardous or otherwise inappropriate for a person of that age; and (b) places at risk the child's well-being, education, physical or mental health, or spiritual, moral, emotional or social development; child marriage means mamage or cohabitation with a child or any arrangement made for such mandage or cohabitation; child protection unit means a facility located at ona designated police stations and established to provide, temporary basis, a safe and non-threatening environment for children; children rescue centre includes any institution that is established by the Cabinet Secretaiy under this Act care and suitable for temporary care of children in need of protection, but does not include a remand home or police station.
childrens remand home means a place of safety where children in conflict with the law may be committed under an order of the Court until their matters are fi nalized; child traffi cking means the recmitrnent, child for transport ing, transfer, harbouring or receipt of a the purpose of exploitation by means of 433 Children 2022 No.
29 (a) thi'eat or use of force or other forms of coercion; (b) abduction; (c) fraud; (d) deception; (e) abuse of power or of position of vulnerability; (f) giving payment or benefit to achieve the consent of the victim; or (g) giving or receiving payments or benefits to obtain the consent of a person having control over the child: Provided that the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of even exploitation shall be considered as child trafficking paragraphs if it does not involve any of the means set out in (a) to (g); child welfare programme means a child welfare programme approved by the Council in accordance with Regulations made under this Act; competent authority has the meaning assigned to it Act; under section 2 of the Persons Deprived of Liberty corporal punislimenf means the use of physical force No.
23 of 20 14 a applied on a child by the use of any means, including pain or cane or other obj ect, with the intention of inflicting or discomfort for the purpose of con-ective discipline punishment; Council means the National Council for Childrens Services established under section 41; County Children Advisory Committee means the Advisory Committee established under section 54; County Executive Committee Member means the County Executive Committee Member for the time being responsible for matters relating to children; County Government entity includes sub-county, ward, village, city or urban area within a county; Court means the Childrens Court designated under section 90 of this A ct; custody means lawfiil custody, whether by operation of law, written agreement or order of a Court of competent jurisdiction; 434 Children 2022 No.
29 66 disability has the meaning assigned to it under Article 260 of the Constitution; 66 detention includes means confinement of a child in conflict with the law in a police cell, place of safety, rescue rehabilitation school, child protection unit, child in center, children remand home or other residential facility which the child is deprived of liberty; 66 .99 dif ferential tr eatm ent is preferential treatment accorded to a child who is vulnerable or who is in a precarious social-economic situation and i ncludes the affirmative action measures to protect the rights of child; 66 diversion means the intervention and programmes designed to divert children from the criminal justice system with the aim of (a) reducing stigmatization of children in conflict with the law; (b) identifying children at risk and connecting them with appropriate support services in an attempt to reduce the likelihood of the children engaging in antisocial behaviour; and (c) providing programmes and support to children who have engaged in offending conduct, prevent them progressing further into the system; and (d) reducing recidivism by children in conflict with the law; 66 domestic servitude means the exploitation of labour for domestic purposes; 66 education means the giving of intellectual, moral, spiritual instruction or other training to a child; 6699 economic exploitation means unfairly taking advantage of another person because of their vulnerability, by grossly underpaying them for their work in comparison to average market rates payable for similar work; 6699 existing Charitable Childrens Institution means aor charitable children institution registered, approved this : licensed by the Council prior to the commencement of Act; 435 Children 2022 No.
29 family time order means an order requiring a child to spend a specified number of hours with their family; family group conference means a meeting convened for purposes of section 232; female genital mutilation has the meaning assigned Genital to it under section 2 of the Prohibition of Female Mutilation Act, 2011; 66 fit person means a person in respect of whom it is No.
18 of 20 13.
moral shown to the satisfaction of the Court to be of high character and integrity, and who is capable of exercising proper care and guardianship of a child; 66 all forced male circumcision comprises male procedures involving partial or total removal of the or any genitalia or other injury to the male genital organs, harmful procedure to the male genitalia, for non-medical reasons, that is performed with or without any undue influence, i nducement, enticement, coercion, or i ntim idation on a male child (a) without consent of the childs parents or guardian; (b) belonging to a community that does not practice male circumcision and w ithout the consent of the child's parents or guardian; (c) with the intention to cause grievous harm or inj ury to a child; (d) in a manner that infringes on a childs right to privacy or subj ects a child to ridicule, embarrassment, humiliation or otherwise harms aJ io'l child; but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose; foster care placement means temporary placement is not the of a child or children in the care of a person who parent, relative or guardian of the child; 66 foster parent means a person with whom a child is : X placed in accordance with section 174; 66 grooming means establishing a relationship of trust or or emotional connection with a child, either personally 436 Children 2022 No.
29 the through electronic means, with the aim to manipulate child or adult care giver and which relationship may promotes, facilitate sexual contact or other child abuse that among, induces or normalizes sexual activity or behaviour or with children; guardian means an individual who is appointed under Part X, to exercise care and control of a child; "'guardian ad litem means an adult appointed by the court to represent the best interests of the child; home, in relation to a child, means the place where the childs parent, guardian, relative or foster parent or permanently resides or, if there is no parent, guardian the relative living, and the child has no foster parent, childs parents or guardians or relatives last pennanent residence; Provided that (a) 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 (b) where the Court is unable to deteimine the home of any such child, the child shall be deemed, for the purposes of this Act, to have his home in the local j urisdiction of the area he or she is found; Inspector General means the Inspector General of Police appointed under Article 245(2)(a) of the Constitution; intersex child means a child with a congenital c an not condition in which the biological sex characteristics f emale be exclusively categorised in the common binary of or male due to inherent and mixed anatomical, hormonal, gonadal or chromosomal patterns, which could be apparent prior to, at birth, in childhood, puberty or adulthood; kafaalah means the taking in of a child who is deprived of parental and family care and protection by a of person professing the Islamic faith who is capable looking aft er a child in accordance with this Act; 437 Children 2022 No.
29 a kinship adoption means the adoption of a child by person who is a relative of the child; legal aid has the meaning assigned to it under section 2 of the Legal Aid Act, 2016; No.
6 of 20 16.
of legal custody means the conferment, to a person, parental rights and responsibilities of a person having time lawful custody over a child for a defi ned period of under an order of a Court of competent jurisdiction; maintenance order means an order issued by a court or lump directing a specifi ed person to make such periodic sum payment for the maintenance of the child on such tenns as the Court may consider appropriate; it medical practitioner has the meaning assigned to under section 2 of the M edical Practitioners and Dentists Act; Cap.
253.
Ministry means the Ministry responsible for matters relating to children; nursery means any institution or place at which for of seven the time being, fi ve or more children under the age years are received and cared for regularly at a fee; obscene material includes any book, magazine, fi lm, media or video or audio tape or print or electronic or social to other medium which is of a kind targeted at or is likely fall into the hands of children and which consists wholly or of mainly of stories in pictures with or without addition written matter or video fi lms and cassette tapes which contains pictures or stories which portray harm&l morally repugnant or sexually explicit information, such as (a) the commission of crime; (b) acts of violence; or or (c) incidents of repulsive or indecent representation immoral characters; his orphan means a child who has lost one or both of or her parents in death; parent means the mother or father or any person who is confeiTed parental rights by law; place of safety includes any institution, school, f or feeding centre, hospital or other place that is suitable temporary care of children, but does not include a 438 Children 2022 No.
29 childrens remand home, rehabilitation school, police station or child protection unit; Principal Registrar has the meaning assigned to it under the Births and Deaths Registration Act; private sector means the non-public sector of the economy; psychological abuse means the regular and cap 149.
actions deliberate use of a range of words and non-physical used with the purpose to manipulate, hurt, weaken or fr ighten a person mentally and emotionally; and/or distort, within confuse or influence a persons thoughts and actions and their everyday lives, changing their sense of self harming their wellbeing; Public Benefi t Organizations has the meaning assigned to it under section 5 of the Public Benefi ts Organisations Act, 2013; radicalization means a process by which a person i deals comes to adopt extreme political, social, or religious No.
18 of 2013.
to and aspirations that are aimed at inciting the person to violence or into any behavior and belief that is harmful the child; rehabilitation in stitution means any institution and which provides the reception, maintenance, training a Court; rehabilitation of children pursuant to an order of rehabilitation school means a rehabilitation school established under section 78; relative means (a) in relation to a child, any person related to the child, whether of the full blood, half blood or by affi nity and, 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 defi nition if the adopted person was the child of the adopter bom inside marriage; and (b) for the purpose of adoption, a mother, father, brother or half brother, sister or half-sister, matern al or patern al uncle or aunt or grandparent or step-parent of a child; 439 2022 Children No.
29 reporting order means an order requiring a child to such order report to a specified person at a time specified in so as to enable such person to monitor the childs behaviour; residence order is an order of the Court m ade w ith respect to a childs living arrangements if the arrangements regulated by the order consist of, or include, arrangements which relate to either or more of the following (a) with whom the child is to live; (b) when the child is to live with any person; and (c) where the child is to live; residenf means a person who resides in Kenya; residential facility means any residential facility established and designated to receive sentenced children; that restorative justice means an approach to justice as focuses on the needs of the victims and the offenders, well as involving the community; Secretary means the Secretary of Children's Services appointed under section 37; spouse means (a) husband or a wife; or (b) in relation to a wife of a polygamous marriage, the wife applying for an adoption order either as the sole applicant or j ointly with the husband, or the wife into whose care a husband applying for an adoption order proposes to give the child; state has the meaning assigned to it under Article 260 of the Constitution; step parent means a parent married to a childs biological mother or father; supervision and guidance order means an order of a placing a child under the supervision and guidance mentor or peer in order to monitor and guide the child's behavior; symbolic restitution means the giving of an obj ect service owned, made or bought by a child, or the giving of by the child to a person, a group of persons or an 440 Children 2022 No.
29 caused institution, as symbolic compensation for the haiTn by an offending child; torture means any act by which severe pain or suffering, whether physical or mental, is intentionally f rom inflicted on a person for such purposes as obtaining him or a third person information or a confession, punishing him for an act which the person or a third person or has committed or is suspected of having committed, or for intimidating or coercing the person or a third person, such any reason based on discrimination of any kind, when of or pain or suffering is inflicted by or at the instigation or with the consent or acquiescence of a public official other person acting in an official capacity; and vulnerable child means a child whose safety, wellbeing or development is threatened, infringed or violated, and includes a child who is emotionally deprived or traumatized, welfare report means a document prepared by a the Children Officer to help a Court reach a decision about upbringing of a child.
Objects of the 3.
The obj ectives of this Act are to Act.
48, (a) give effect to the provisions of Articles 27, 47, 49, 50, 51 and 53 of the Constitution on matters relating to children; and (b) give effect to the States obligations concerning the wellbeing of children in accordance with the general rules of international law, treaties and conventions ratified by Kenya.
Conflict of law s.
4.
(1) This Act shall prevail in the case of any on inconsistency between this Act and any other legislation children matters.
(2) Despite subsection (1), a provision in another a legislation on children matters may prevail if it offers greater benefit in law to a child.
(3) A judicial or administrative institution or any person making an interpretation as to conflict of any of a provision or laws shall have regard to the best interests child.
441 Children 2022 No.
29 PART IISAFEGUARDS FOR THE RIGHTS AND BEST INTERESTS OF THE CH ILD Realization of the 5.
(1) The State shall take measures to progressively rights of the child.
set out achieve the full realization of the rights of the child in this Part.
(2) The Cabinet Secretary shall ensure development, and review and implementation of relevant policies, laws programs to give effect to subsection (1).
Survival and 6.
(1) Every child shall have the right to life, survival, development of the child.
wellbeing, protection and development.
(2) For the purposes of subsection (1), no court shall a child.
pass a death sentence for any offence committed by Name and 7.
(1) Every child shall have a right to a name and nationality.
and be nationality and, as far as possible, the right to know cared for by their parents.
(2) Every child has the right to be registered in the Register of Births immediately aft er birth in accordance Cap.
149.
with the Births and Deaths Registration Act.
(3) The Principal Registrar shall take measures to ensure correct documentation and registration of intersex children at birth.
(4) A child found in Kenya who is or appears to be and less than eight years of age, and whose nationality by parents are not known, shall be presumed to be a citizen birth.
Best interests of 8.
(1) In all actions concern ing children, whether the child.
undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies t.
.
(a) the best interests of the child shall be the primary consideration; but (b) the best interests of the child shall include, shall not be limited to the considerations set out in the First Schedule.
all (2) All judicial and administrative institutions, and persons acting in the name of such institutions, when exercising any powers confeired under this Act or any child as the other written law, shall treat the interests of the this is first and paramount consideration to the extent that to consistent with adopting a course of action calculated 442 Children 2022 No.
29 (a) safeguard and promote the rights and welfare of the child; and (b) conseiwe 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.
be (3) In any matters affecting a child, the child shall that accorded an opportunity to express their opinion, and opinion shall be taken into account in appropriate cases, having regard to the childs age and degree of maturity.
(4) The Cabinet Secretary shall issue guidelines to give effect to this section.
Non on9.
(1) No person shall discriminate against a child discrimination.
the grounds of age, origin, sex, religion, creed, custom, status, language, opinion, conscience, colour, birth, health pregnancy, social, political, economic or other status, r ace, disability, tribe, residence or local connection or any other status.
(2) A person who contravenes sub-section (1) commits an offence and shall, on conviction, be l iable to orto imprisonment for a tenn not exceeding twelve months ortoa fine not exceeding two hundred thousand shillings both.
Differential 10.
(1) Notwithstanding sections 8 and 9, differential tre at m en tnot best treatment of a child which is intended to protect the discriminatory.
interest of t he child shall not be deemed to be discrimination against the child.
of (2) No differential treatment shall limit any rights the child under this A ct or under the Constitution.
Right to parental and 11.
(1) Every child has the right to parental care care.
protection.
(2) Except as is othei-wise provided under this Act, every child has the right to live with his or her parents.
(3) Despite subsection (2), a child may be separated from his or her parents where the Court or the Secretary of the determines that the separation is in the best interest child.
(4) Where a child is separated fr om his or her parents the under subsection (3), the child shall be provided with this A ct best altern ative care available, in accordance with 443 Children 2022 No.
29 based or any other written law, giving priority to family alternative care.
(5) Where an order made under subsection (3) applies the to two or more siblings, the order shall provide that and siblings be placed under care and protection together that they may not be separated, except for such compelling reasons as the Court shall record.
(6) Subj ect to subsection (3), evei^ child who is to separated from one or both parents shall have the right the maintain personal relations and direct contact with shown to parent or parents on a regular basis, unless it is not in the the satisfaction of the Court that such contact is best interest of the child.
(7) Where a child is separated from his or her parent and or parents otherwise than under an order of the Court , without the consent of the parent or parents, the Secretary the shall, on request by the parent or parents, facilitate or tracing and reunification of the child with the parent parents.
12.
(1) Eveiy child whose parent or guardian is unable as to maintain the child has the right to social security guaranteed by Art icle 43(3) of the Constitution.
(2) Without prejudice to the generality of subsection (1), social security includes altern ative care seiwices provided under this Act, and in part icular (a) kinship care; (b) guardianship; (c) foster care; (d) adoption; (e) kafaalah; .r ( (f) care in emergency situations; (g) temporary shelter; (h) support ed independent living; (i) support ed child-headed households; (j) i nstitutional care; and (k) aft ercare.
(3) The objectives of altern ative care under subsection (2) are to- 444 Children 2022 No.
29 (a) facilitate the provision of parental care and protection of a child in accordance with the best interest and wellbeing of the child; her (b) place the child as close as possible to his or usual place of residence; (c) provide a stable, loving and protective home for the child with permanency as the long-term goal; and (d) safeguard the child from abuse, violence or exploitation.
(4) The following principles shall be considered when placing a child in alternative care that (a) the family is the fundamental group in society provides the care and protection for a child; child (b) the process of providing altern ative care to a the shall be participatory, and in the best interest of child; (c) poverty, disability or provision of education shall not be the driving factor for removing a child from his or her family and placing him or her in alternative care; (d) the removal of a child from his or her family for the purpose of placement in alternative care shall be temporary and a last resort, and shall be carefully monitored in accordance with this Act; and (e) siblings shall be kept together during removal to placement in alternative care, unless it is unsafe do so, or not in the best interest of the siblings; be (f) the placement of a child in alternative care shall appropriate to the childs individual needs; (g) the provision of alternative care shall not be carried out for the primary purpose of advancing the religious, political, economic or any other personal goals of the caregiver; and and (h) the use of institutional care shall be limited provided under strict standards and regulations, and children under thi'ee years of age shall be placed in family-based care settings.
445 Children 2022 No.
29 be (5) A child under the age of three years shall not in plaeed in alternative eare in an institution, except compelling cireumstances and, in any event, for a period not exceeding three months.
(6) A child may be placed in alternative care away from the parental home under a formal or informal arrangement pursuant to either (a) a deeision of the Court or of the Secretaiy ; or or (b) the initiative of the child, his or her parents primary caregivers, or independently by a care provider in the absenee of the childs biological parents.
(7) The Cabinet Secretary responsible for matters Publie relating to fi nance shall establish a fi ind under the No.
18 of 20I2.
Finance Management Act to be known as the Child Welfare Fund to facilitate the realisation of the right respeet guaranteed by Article 43(3) of the Constitution in alternative of all reasonable expenses incurred in relation to to eare and other soeial seeurity programmes designed f acilitate the realisation of the w elfare of the child.
Right to basic 13.
(1) Every child has the right to free and education.
53 compulsory basic education in accordance with Art iele (1) (b) of the Constitution.
or (2) It shall be the responsibility of every parent guardian to present for admission or cause to be admitted his or her ehild, as the case may be, to a basie education i nstitution.
(3) The Cabinet Secretary shall, in eonsultation with f or the Cabinet Secretary for the time being responsible edueation develop and implement policies f or the to b asic realization by every ehild of the constitutional right education.
Right to 14.
(1) In addition to the right to basic education leisure, to recreation and guaranteed under seetion 13, every child shall be entitled play.
and leisure, play and participation in non-hamiful cultural artistic activ ities.
and (2) It shall be the responsibility of the govern ment the of every parent or guardian to permit and faeilitate and enj oyment by his or her child of the right to leisure play at any public recreational facility.
446 Children 2022 No.
29 (3) Eveiy county govern ment shall appoint and public designate specific areas in estates and villages as be child play and recreational f acilities, which shall accessible to all children, including children with disabilities.
of 15.
(1) Eveiy child shall have the right to freedom educa^oii.
thought, conscience, religion and religious education best subject to appropriate parental guidance, and in the i nterest of the child.
a (2) The religious guidance and education provided to or hinder child under this section shall not in any way limit the childs access to and enj oyment of any of the basic rights and fundamental freedoms guaranteed by the Constitution, this Act or any other law.
to 16.
(1) Every child shall have the right to the highest attainable standard of healthcare services in accordance with Article 43 of the Constitution: Provided that the provisions of reproductive health con sen t services to children shall be subject to the express of the parent or guardian.
(2) Without prejudice to the generality of subsection (1), every child has the right to enj oy the best attainable state of physical, mental and psychological health.
(3) In pursuance of the right to healtheare services and a under this section, every child has the right to privacy child-friendly environment.
(4) Every child has the right to (a) access to age-appropriate information on health promotion and the prevention and treatment of ill- health and disease, mental health and reproductive health; (b) aecess to infomiation regarding their health status; (c) access to information regarding the causes and treatment of his or her sickness; and (d) eonfidentiality regarding his or her health status and the health status of a parent, care-giver or family member, except when maintaining such confidentiality is not in the best interests of the child; 447 Children 2022 No.
29 (e) access to age-appropriate infomiation that affirms human dignity in human relationships and promotes sexual risk avoidance.
(5) The infonnation provided to a child pursuant to this section shall be in a fom i at accessible to the child, having regard to the special needs of children with disabilities.
or (6) It shall be the responsibility of every parent of health guardian to present his or her child who is in need that the care to a suitable health care facility and to ensure child receives appropriate health care seiwices.
(7) Any parent or guardian who willfully neglects, of health fails or refuses to present his or her child in need care to a health care facility for purposes of treatment toa eommits an offence and shall, on conviction, be liable default, to fi ne not exceeding fi fty thousand shillings or, in imprisonment for a term not exceeding thirty days.
(8) No charge preferred under subsection (7) shall Penal operate as a bar to any relevant charges under the Cap.
63.
Code.
(9) Nothing in this section shall be presumed to children.
abrogate parental obligation to education of their Right to 17.
(1) Every child shall have the right to inherit i nheritance.
property in aceordance with the Law of Succession Act.
Cap.
160.
(2) Subj ect to the Law of Succession Act Cap.
160.
and (a) evei7 child shall be entitled to equal treatment protection, and to the benefi t of the law; and be (b) no person shall disinherit or cause a child to disinherited on any grounds, including age, origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, health status, pregnancy, social, political, economic or other status, race, disability, tribe, residence or local connection.
(3) A person who contravenes subsection (2) or otherwise deprives a child of any propeity or benefi t relating aeeruing to the child under or by virtue of the law to inheritanee eommits an offence and shall, on convietion, two be liable to imprisonment for a term not exceeding or to years or to a fi ne not exceeding fi ve million shillings, both.
448 Children 2022 No.
29 (4) In addition to the penal sanctions prescribed in restitution subsection (3), the child shall be entitled to flill or the propert y of benefit accming to the child.
(5) The provisions of subsections (3) and (4) shall 45 of apply without prejudice to the provisions of section the L aw of Succession A ct.
Cap 160.
(6) The action contemplated in subsection (4) may be other brought by a duly constituted next friend or by any person in accordance with Art icle 22 of the Constitution.
Protection from 18.
(1) No person shall subj ect a child to child labour, child labour.
or domestic seiwitude, economic exploitation or any work childs employment which is hazardous, interferes with the health or education or is likely to be harmful to the childs physical, mental, moral or social development.
(2) For the purposes of subsection (1) (a) employment has the meaning assigned to it No.
11 of 2007.
under section 52 of the Employment Act; No.
11 of 2007.
(b) the provisions of Part VII of the Employment Act shall apply with necessary modifications in addition to, and not in substitution f or, t he provisions of this Act relating to the employment of children or subj ection of children to child l abour.
(3) No person shall use, procure or offer a child for slavery or practices similar to slavery, including begging, or debt bondage, servitude, or forced or compulsory labour provision of personal services, whether or not for gain.
(4) The Cabinet Secretary responsible for matters relating to labour shall, within one year of the commencement of this Act, in consultation with the to Cabinet Secretaries responsible for matters relating children affairs and education, make Regulations kind prescribing the terms and conditions of work and the of work that may be engaged in by children in the following age categories but (a) children who have attained the age of thirt een have not attained the age of sixteen years; and (b) children who have attained the age of sixteen but have not attained the age of eighteen years.
449 2022 Children No.
29 the Provided that the regulations shall take aeeount of best interest of the ehild.
Protection fr om 19.
(1) No person shall subjeet a child to hostilities, armed conflicts.
social strife or recruitment in armed conflict, whether internal or cross border.
(2) In situations of armed conflict, the state shall of establish mechanisms for the protection, care and respect the rights of the child recognized under the Constitution, this Act or any other written law.
(3) The State shall establish mechanisms to facilitate re the protection, rehabilitation, care, recovery and integration into normal social life, of any child who may be or natural a recmit or victim of armed conflict, social strife disaster.
(4) No person shall subj ect a child to armed conflict, and w here hostilities or recruit a child in armed conflicts, care armed conflict occurs, respect for and protection and of children shall be maintained in accordance with t he law.
to the Rights oMhiidren 20.
(1) A child with disability shall, in addition rights guaranteed under the Constitution, have the right to be treated with dignity, and to be accorded appropriate f ree medical treatment, special care, education and training of charge.
a (2) In addition to the right under subsection (1), child with disability shall have the rights and privileges No.
14 of 2003.
provided under the Persons with Disabilities Act.
(3) The State shall establish such institutions orf acilities and facilities including child care facilities, health the educational institutions as may be necessary to ensure progressive realization of the right under this section.
Rights of imersex 21.
An intersex child shall have the right to be treated children.
with dignity, and to be accorded appropriate medical treatment, special care, education, training and consideration as a special need category in social protection services.
Protection fr om 22.
(1) No person shall subj ect a child to abuse, etc.
(a) psychological abuse; or (b) child abuse.
450 2022 Children No.
29 (2) Any person who contravenes subsection (1) to coirunits an offence and shall, on conviction, be liable toa imprisonment for a term not exceeding five years or fine not exceeding two million shillings, or to both.
(3) Without prejudice to the generality of subsection (1), any person who, through any electronic system, network, or other communication technology (a) proposes or solicits to meet a child for the purpose of engaging in sexual activities contrary to the No.
3 of 2006.
provisions of the Sexual Offences Act; (b) transmits or causes to be transmitted any obscene material, or otherwise makes such material accessible to children; or (c) in any other way, subjects a child to online abuse, harassment or exploitation, whether through social networks, playing online games or by use of mobile phones or other electronic devices, commits an offence and shall, on conviction, be liable or to a to imprisonment for a term not exceeiiing ten years fi ne not exceeding two million shillings, or to both.
(4) The reference in subsection (3)(c) to online abuse cyber includes cyber bullying, grooming and solicitation, enticement, cyber harassment and cyber stalking.
the (5) A person who intentionally transmits or causes transmission of any communication through a computer system or network to bhlly a child, and such or communication places the child in fear of death, violence bodily harm, commits an offence and shall, on conviction, t en be liable to imprisonment for a term not exceeding or to years or to a fi ne not exceeding two million shillings, both.
(6) In this section bullying includes cyber bullying or the use of i nformation communication technology calculated to harm a victim or victims in deliberate, Misuse repeated and hostile ways contrary to the Computer No.
5 of 20 18.
and Cybercrimes Act.
Protection fr om 23.
(1) No person shall subject a child to harmful cultural * ' (a) in the ease of a male child, forced circunicision^ r , - cnr.! 2 '.
451 2022 Children No.
29 (b) female genital mutilation; (c) child marri age; (d) virginity testing; (e) girl child beading; (f)except with the advice of a medical geneticist, organ change or removal in case of an intersex child; or (g) any other cultural or religious ri te, custom or practice that is likely to negatively affect the child's life, health, social wellbeing, dignity, physical, emotional or psychological development.
(2) A person who contravenes the provisions of subsection (1) commits an offence and shall, on conviction, three be liable to impri sonment for a term of not less than years or to a fi ne of not less than fi ve hundred thousand shillings, or to both.
(3) A person who causes death to a child, whklier directly or indirectly, in consequence of other related an procedure in contravention of subsection'(1) (a) commits offence, and shall, on conviction, be liable to imprisonment f or life.
Protection fr om 24.
(1) No person shall subj ect a child to drugs and substance abuse.
(a) the use of hallucinogens, narcotics, alcohol, tobacco products, glue, psychotrq^ic drugs or any other drugs that may be declared harmful by the tt Cabinet Secretary responsible for matters relating } o : to health; or y \ (b) involvement in the production, traffi cking, sale, storage or distri bution of the any of the drugs or substances referred to in paragraph (a).
(2) A person who contravenes the provisions of subsection (1) commits an offence and shall, on conviction, fi ve be liable to impri sonment for a term not exceeding years or to a fi ne not less than fi ve hundred thousand shillings, or to both.
I.
i ! IJ Right to fr eedom 25.
'(!)' Every^ child, [has, j:he right to freedom frprn fr om torture etc.
torture and cruel, inhuman or degrading treatment or 452 2022 Children No.
29 punishment as provided under Article 25 (a) of the Constitution.
(2) The assignment of any task or infliction of punishment by way of penalty for any offence committed a by a child under any law shall not be construed as (1) contravention of the right specified in subsection Provided that any such punishment shall be humane with and preserve the childs dignity , and be commensurate the evolving capacity of the child.
(3) Any person who (a) unlawfully deprives a child of his or her liberty ; (b) subjects the child to (c) torture or other cruel and inhuman or degrading treatment, including corporal punishment, (d) any cultural or religious practice which dehumanizesrpr^is injurious to the physical, mental and emotional wellbeing of the child, no.
12 of 20 17.
commits an offence and shallj on conviction, be liable to the offence under the Prevention of Torture Act.
Detention of 26.
(1) A child shall not be deprived of his or her children in Articles conflict w ith the liberty or otherwise treated in a manner contrary to with 'w- 29 (f) and 51 of the Constitution, except in accordance the Persons Deprived of Liberty Act.
No.
23 of 20 14.
in (2) Children deprived of liberty , detained or held custody or committed to an institution shall be held separate fr om adults in facilities, including transportation age.
facilities, appropriate to their special needs and (3) Male, female and intersex children deprived of liberty shall be accommodated in separate facilities.
(4) Where children with disabilities are deprived of onan liberty under any legal process, they shall be treated equal basis with others and shall be entitled to such this guarantees as are in accordance with the Constitution, No.
14 of 2003.
Act and the Persons with Disabilities Act.
( , (5) Children with disabilities depriyed of libeity jipr accommodated in child protection units shall be accommodated in facilities that adequately meet their 453 2022 Children No.
29 personal needs, taking into account the condition and nature of the disability.
(6) The competent authorities shall take appropriate f or the measures to facilitate humane treatment and respect of privacy, legal capacity and inherent human dignity children deprived of liberty, including children with disabilities.
other (7) The detention of a child under this Act or any written law shall be a matter of l ast resort and in conformity with Article 53 (f) of the Constitution.
(8) A child who is apprehended and detained shall be well as accorded legal and other assistance by the State as contact with his or her family.
Privacy.
or 27.
(1) No person shall subj ect a child to arbitrary or unlawful interference with his or her privacy, family his or private affairs, or correspondence, or to attacks upon her honour or reputation.
(2) Without prejudice to the generality of subsection to (1), parents or legal guardians shall have the right their exercise reasonable supervision over the conduct of children.
(3) The personal data concerning a child shall be the processed only in accordance with the provisions of Data Protection A ct.
No.24 of 20 19 K to assemble, 28.
(1) Every child has the right, peaceably and Right to petTt^n and unarmed, to assemble, demonstrate or prpsent petitions participate in public authorities, and to freely participate in matters public life.
.J.I affecting children through lawfully established forums, Xl'M associations, and assemblies at the national and county il ev els.
and (2) The right of a child to assemble, demonstrate, of others.
to present petitions, shall be subj ect to the rights (3) In addition to the rights guaranteed under subsections (1) and (2), every child shall have the right to and have express their views in all matters affecting them, with those views heard and given due weight in accordance the child's age and maturity.
be (4) The right -guaranteed Under subsection (3) shall iHy exercised h 'l) 454 2022 Children No.
29 (a) in accordance with the national values and principles of governance prescribed in Article 10 (2) of the Constitution, (b) voluntarily by a child and without any undue influence, coercion, inducement or enticement by any person.
(5) The Cabinet Secretary may issue guidelines to give effect to this section.
Enforcement of 29.
(1) Any person may institute court proceedings rights under this child Part.
claiming that any right or fundamental freedom of the or protected under this Part has been denied, violated infringed, or is threatened.
(2) Without prejudice to the generality of subsection (1), court proceedings may be instituted by their (a) a parent or guardian acting in the interest of child; (b) a person acting on behalf of a parent or guardian who cannot a6t on behalf of their child or children; (c) a person acting as a member of, or in the interest of, a group or class of children; (d) a person acting in the public interest; or (e) a duly registered association acting in the interest of one or more of its members, whose primary object is the promotion and protection of childrens rights.
1I (3) The High Court shall hear and determine an application under subsection (1), and may make such it may orders, issue such writs and give such directions as consider appropriate for the purpose of enforcing or this securing the enforcement of any of the provisions of Part.
at a (4) Any court cost under this section shall be kept minimum.
(5) The Chief Justice may mak( of (a) rules with respect to the practice and procedure the High Court in relation to the jurisdictipn^ and ^ powers conferred on it or un^er this,_ spcUoii,|, ,.
I including rules with respect to the lim^'^ Witnin 455 2022 Children No.
29 which applications may be brought, and references shall be made to the High Court; (b) rules for the enforcement of human rights and fundamental jfr eedoms of the child; and (c) practice guidelines for the Childrens Court.
(6) The Cabinet Secretary may make regulations for Part, the better carrying into effect the provisions of this of including regulations for the effective implementation alternative care arrangements.
PART IIIPARENTAL RESPONSIBILITY Duties and 30.
In the applications of the provisions of this Act responsibilities of and in any matter before a court of law concerning a child, a child.
of due regard shall be had to the duties and responsibilities 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 |)rovided that the childs best i nterest shall reniain paramount; (c) serve his national community by placing his physical and intellectual abilities at its service; (d) preserve and strengthen social and national solidarity; (e) preserve and strengthen the positive cultural values of his community in his relations with other members of that community; ,qn (f) attend school unless prevented by factors beyond > - f -l their ability; (g) not discriminate against other children on account of ethnicity, race, disability, gender, social status or other grounds; (h) protect the environment; (i) not abuse or harm other children; and (j) not destroy any property.
Equal parental all 31.
(1) In this Act, parental responsibility means responsibility.
the duties, rigli|s,'powers, responsibilities and authority the child which by law a parent of a child has in relation to 456 2022 Children No.
29 the and the childs property in a manner consistent with evolving capacities of the child.
but (2) The duties referred to in subsection (1) include, are not lim ited to to (a) the duty to maintain the child and, in particular, provide the child with (i) basic nutrition; (ii) shelter; (iii) water and sanitation facilities; (iv) clothing; (v) medical care, including immunization; (vi) basic education; and (vii) general guidance, social conduct and moral values; (b) the duty to protect the child fr om neglect, abuse, discrimination or other dif ferential treatment; (c) the duty to (i) provide parental guidance in religious, moral, social, cultural and other values that are not harmfi jl to the child; (ii) determine the name of the child; (iii) procure registration of the birt h of his or her child; (iv) appoint a legal guardian in respect of the child; (v) receive, recover and otherwise deal with the property of the child for the benefit, and in the best interests, of the child; (vi) facilitate or restrict the migration of the child from or within Kenya; (vii) upon the death of the child, to arrange for the burial, cremation of the child or any other acceptable method of interment; and (d) the duty to ensure that, during the temporary absence of the parent or guardian, the child shall be committed to the care of a fit person.
457 Childr en 2022 No.
29 (3) Whether or not a person has parental responsibility over a child 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 may have in relation to the administration of the childs estate in accordance Cap.
160.
with the Law of Succession Act.
(4) A person who does not have parental responsibility the over a particular child, but has care and control over do w hat is child, may, subj ect to the provisions of this Act, the reasonable in all the circumstances of the case for purpose of safeguarding or promoting the childs welfare.
(5) The Cabinet Secretary may make regulations to give effect to the provisions of this section.
32.
(1) Subject to the provisions of this Act, the over the parents of a child shall have parental responsibility thfe child on an equal basis, and neither the father nor claim mother of the child shall have a superior right or against the other in exercise of such parental responsibility whether or not the child is bom within or outside wedlock.
(2) A person who has parental responsibility over a child shall at all times have the duties, powers and other responsibilities as are prescribed in this Act or any written law.
(3) A person with parental responsibility over a child of a shall not act in any way that contravenes any order the court of competent jurisdiction made with respect to child under this Act or any other written law.
(4) A person who has parental responsibility over ato child may not relinquish or assign such responsibilities another person.
(5) Nothing in subsection (4) prevents a person from making temporary arrangements, during his or her absence, to allow a fit person to exercise his or her parental behalf.
responsibilities over a child for and on his or her (6) The making of the temporary arrangements affect or referred to in subsection (4) by a person shall not 458 Children No.
29 2022 f ailure to limit that persons liability arising from his or her exercise his or her responsibility under this section.
Parental 33.
(1) Parents of a child and who are not married to responsibility each other may enter into a parental responsibility agreement.
the agreement, in the prescribed form, whereby both, in clear best interests of the child, designate and agree on individual responsibilities towards the child (2) An agreement under subsection (1) may be in the nature of a parenting plan in which the parents specify (a) how the child or children shall spend time with each parent; (b) how the parents shall make joint decisions on matters relating to their respective parenting responsibilities, including religious upbringing; (c) contact information; (d) visitation schedule; (e) holiday and school break schedule; (f) transport and travel within and outside Kenya; (g) responsibility for health insurance and healthcare services; in (h) the need for notification of parental movement or cases where either or both parents relocate change residence; (i) the manner in which decisions relating to the education of the child shall be made; and f or (j) the j oint and several responsibilities expenses extra-curricular activities of the child.
(3) A parental responsibility agreement may only be revoked or terminated by an order of the Court made on application by (a) a person who has parental responsibility over the child; or (b) a child, with the leave of the Court.
(4) The Court may only grant leave under subsection (3) (b) if it is satisfied that the child sufficiently made to understands the nature and effect of the application the Court.
459 Children 2022 No.
29 (5) A person who, in breach of a parental responsibility agreement or any order of the Court (a) hinders another person who has access to a child, or who has parental responsibility in respect of that child in accordance with such order or agreement, from exercising such access or responsibilities; or (b) abducts the child or otherwise prevents that other person from exercising such access or responsibilities in respect of the child, commits an offence and shall, on conviction, be liable toa to imprisonment for a term not exceeding one year or orto fi ne not exceeding fi ve hundred thousand shillings, both.
in (6) A person who, having care or custody of a child respect of whom another person has access or parental responsibility pursuant to a parental responsibility that agreement or to an order of the court , fails to notify other person in writing of the change in his or her an residential address at which the child resides, commits offence and shall, on conviction, be liable to imprisonment exceeding for a term not exceeding one year or to a fi ne not two hundred thousand shillings, or to both.
Transmission of 34.
(1) On the death of the mother of the child, the parental father of the child, if still living, shall have parental responsibility.
responsibility for the child either alone or with the testamentary guardian (if any) appointed by the mother.
of (2) On the death of the father of a child, the mother in the child, if living, shall exercise parental responsibility respect of the child either alone or with the testamentary guardian (if any) appointed by the father.
(3) The surviving parent of the child shall be entitled either to object to any testamentary guardian appointed by of them acting, and may apply to the court for the revocation of the appointment of the testamentary guardian.
(4) Where both the mother and the father of the child 1) are deceased, any of the following persons may exercise parental responsibility over the child the (a) a testam9^tary guardian appointed by either of parents; 460 Children 2022 No.
29 in (b) a guardian appointed by the court on application the prescribed form; (c) the person in whose power a residence order was made prior to the death of the childs father and mother, and which is for the time being in force; (d) a fi t person appointed by the Court on application in the prescribed form; (e) in the absence of the persons specified in paragraphs (a), (b) (c) and (d), a relative of the child; or (f) failing arrangement under paragraph (e), by any other fi t person on placement of the child in alternative family-based care.
(5) The relatives of the deceased parent of the child, to be may, if they consider the surviving parent of the child unfi t to exercise parental responsibility for the child, apply be to the court to make such appropriate orders as may the necessary in the circumstances of the case to safeguard best interests of the child.
(6) Where the parent of a child marries, the parents the spouse shall exercise parental responsibility under has provisions of this Act, whether or not that spouse legally adopted the child.
35.
(1) Parental responsibility in respect of a child may Extension of be extended by an order of the Court aft er the date on b?yond eighLnth the binhday.
which the child attains the age of eighteen years if Court is satisfi ed, either of its own motion or on application by any person, that special circumstances exist with regard to the welfare of the child that would necessitate the making of such extension.
(2) The special circumstances referred to in subsection (1) include cases where the child is in need of extended parental responsibility by reason of special needs arising from severe disability or developmental disorder.
(3) An application under this section may be made of either before or aft er the child has attained the age eighteen years by (a) the parent; (b) any person who has parental responsibility'over! the child or by a relative of a child; " 46 1 Children 2022 No.
29 (c) the Secretary; or (d) the child.
Regulations and 36.
The Cabinet Secretary shall prescribe regulations guidelines.
guide the to give effect to this Part and, in particular, to formulation and implementation of programmes and of actions to promote the preservation and strengthening f amilies.
PART IVADMINISTRATION OF CHILDRENS SERVICES Offi ce of the 37.
(1) There is established the Office of the Secretaty Secretary of Children Services.
public of Children Seivices which shall be an office in the service.
(2) The Secretaiy shall be recruited through a competitive process and appointed by the Public Service Commission.
(3) A person may be appointed as the Secretary of Children Services if the person (a) is a citizen of Kenya; in (b) holds a relevant bachelors and masters degree social sciences from a university recognized in Kenya; (c) has at least ten years experience in social work, education, administration and management, public administration, human resource or f inance management; and (d) meets the requirements of Chapter Six of the Constitution.
Functions of the 38.
The Secretary shall Secretary (a) regulate, coordinate, manage, and supervise childrens officers in delivery of the welfare and administration of children services; and (b) be responsible for establishing, administering maintaining ehild protection centres, rehabilitation schools and a remand homes in every county; (c) maintain up-to-date records and data on management of ehildren services including access to welfare ainenities for children; 462 Children 2022 No.
29 (d) investigate, monitor and report cases of children facing hardship; (e) identify, formulate and develop programmes to mitigate children facing hardship for the consideration of the Council; with (f) assist children in hardship, including children disabilities, children living in the street, orphaned and destitute children, children who abuse drugs, children who are sexually abused and children who are affected by domestic violence; in (g) inquire, investigate, assess and prepare reports accordance with this Act or any other written law in accordance with any direction of a court; (h) implement any direction of court including providing social or administrative support; (i) safeguard the welfare of a child placed under care by virtue of a care order or interim order; (j) procure accommodation for a child who is abandoned, in need of refuge, safety or appropriate custody; a (k) provide services to trace, reintegrate or restore lost or an abandoned child with parent or a guardian; need (1) intervene and secure the removal of a child in of care and protection'to a place of safety; (m)promote family reconciliation and mediate in disputes involving children, parents, guardians or persons who have parental responsibility in the manner provided under this Act; care (n) provide services to assess a child placed under and support services to counsel, and guide children and families; (o) facilitate medical treatment for a child in police custody or in a childrens remand home; (p) provide guidance and assistance for a child during a proceeding in court; (q) supei-vise administration of children institutipns : r ' t.
including childrens rehabilitation centres,' charitable childrens i nstitutions and' f ^mdnd'''" ' ' 463 Children 2022 No.
29 homes in order to safeguard and promote the welfare of a children; (r) provide quarterly reports relating to management of childrens rehabilitation centres, charitable childrens institutions and remand homes; (s) safeguard the welfare of children in foster care; and (t) perform any other function as may be prescribed under this A ct.
Powers of the 39.
(1) The Secretary shall have the power to do all Secretary.
to such acts as the Secretary may deeip to be necessary carry out the functions of the Secretary and may appoint, to assign or delegate a function to an officer or a person carry out a function assigned under this Act.
of (2) Without prejudice to the powers of the Director to Public Prosecution, the Secretary shall have the power relating institute proceeding in respect of any contravention to child maintenance, child neglect and abuse.
shall Appointment of 40.
The Public Service Commission chief offi cers, children off icers competitively recruit and appoint chief offi cers, children to offi cers and such other officers as may be necessary under assist the Secretary in the performance of their duties this A ct.
Establishment of as 41.
(1) There is established a Council to be known National Council shall f or Childrens the National Council for Childrens Services, which Services.
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) entering into contracts; (d) receiving grants and gift s in support of projects, programmes and actions designed to promote and protect the rights of the child; and doing or performing all such other things or acts necessary 464 Children 2022 No.
29 for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate.
of the 42.
The National Council for Children Services Functions Council.
shall- (a) be the central authority for the purposes of the Hague Convention on Inter-Country Adoptions; (b) advise the Cabinet Secretary on matters relating to child protection; (c) collaborate with relevant state departments, state and non-state agencies to monitor and evaluate the efficiency and effectiveness of all social programmes established in the interests of children; (d) facilitate, monitor and evaluate the enforcement of the principles of international law and treaty instruments binding on Kenya in respect of matters relating to children; (e) develop policy, codes of conduct regulating good practice relating to child protection and child welfare; (f) monitor and evaluate implementation of public education programs on the rights and welfare of children; (g) advice on technical and support services to state and non-state agencies part icipating in child welfare programmes; (h) prescribe training needs and requirements for authorized officers; (i) formulate, approve, evaluate and monitor implementation of programmes to facilitate the full implementation of Kenyas international and regional obligations relating to children and support the formulation of appropriate report s under such obligations; G) formulate, approve, evaluate and monitor implementation of policies to regulate family empowerment and social security that are designed to alleviate the hardships which impair the social welfare of children; 465 Children 2022 No.
29 (k) regulate, register, approve, evaluate and monitor implementation of child welfare programmes proposed by charitable childrens institutions in accordance with this Act; (1) advice the Cabinet Secretary on establishment of children rescue centers or designation of childrens institutions to operate as children rescue centers; (m) foiTnulate, approve, evaluate and monitor implementation of programmes to create public awareness in all matters relating to the rights and welfare of children; (n) f oiTnulate, approve, evaluate and monitor implementation of programmes for the alleviation of the plight of children with special needs or requiring special attention; (o) promote , cany out and disseminate research relating to welfare and protection of children matters; (p) establish panels of persons from whom guardians ad litem appointed by the court in matters relating to children including adoption regulated under this A ct; (q) maintain and update a register of guardians ad l item; (r) establish, regulate and manage the activities of County Children Advisory Committees to advise on matters relating to the rights, welfare and protection of children; (s) promote linkages and exchange programmes with organisations in and outside Kenya; (t) establish, maintain and update a database of children in Kenya; (u) advise the Cabinet Secretary on matters relating to the formulation of national policy on domestic and inter-country adoptions; (v) accredit and license duly registered adoption and child protection agencies in order to facilitate domestic and inter-country adoptions; 466 Children 2022 No.
29 (w) establish, update and maintain a database for domestic and inter-country adoptions; (x) advise the Cabinet Secretary on matters relating to adoption practice and procedure; (y) provide professional and technical advice and support services to licensed adoption agencies on matters relating to adoption and to individuals who intend to undertake domestic and inter country adoption; (z) receive, record and report from Charitable Children Institutions, adoption societies, parents and guardians, authorised officers and other relevant persons particulars of children available for adoption; (aa) consult with Charitable Children Institutions and adoption societies on matters relating to adoption; (bb) establish, maintain and update a register of children fr ee for adoption and prospective adoptive parents; (cc) certify and declare a child free for adoption; (dd) establish, maintain and update a database of adopted children in consultation with the Registrar; (ee) promote co-operation between state agencies, local and non-state agencies concerned with matters relating to adoption with central adoption authorities in other countries including tracing and repatriation of children in need of care and protection; (ff) review and make recommendations to the Cabinet Secretary for approval of fees chargeable by adoption societies for the processing of applications for adoption; (gg) make recommendations to the Cabinet Secretary on matters relating to the fees chargeable for registration and licensing of adoption societies; (hh) monitor, prepare and submit to the Cabinet.
I Secretary annual reports on matters relating to' ur ii.
adoption; and 467 Children 2022 No.
29 (ii) any other functions as maybe conferred on this Act.
Composition of 43.
(1) The Council shall consist of the Council (a) a Chairperson appointed by the President; (b) the Principal Secretary in the Ministry for the time being responsible for matters relating to children services or a representative; (c) the Principal Secretary for the time being responsible for matters relating to finance or a representative; (d) the Attorney-General or a representative; (e) one person representing the Council of Governors; (f) the following three persons, not being public officers, appointed by the Cabinet Secretary- (i) one person representing Public Benefits Organisations concerned in matters related to children activities; (ii) one person representing faith based organisations; (iii) one person representing the private sector; (g) the Secretary of childrens services; and (h) the Chief Executive Officer of the Council, who shall be the secretary to the Council.
(2) In constituting the Council, the appointing authorities shall ensure that (a) not more than two thirds of the Council shall be comprised of one gender; (b) persons with disabilities, vulnerable and marginalised groups shall be accorded equal opportunity; and (c) the appointments reflect the ethnic and regional diversity of the country.
the (3) A person shall be qualified for appointment to offi ce of Chairperson of the Council if the person (a) is a citizen of Kenya; 468 Children 2022 No.
29 (b) holds a relevant post graduate degree in social sciences from a university recognized in Kenya; (c) has at least fift een years experience in corporate governance, administration and management, public administration, human resource or finance management; to (d) is knowledgeable in or has actively contributed the promotion of the rights and welfare of children; and (e) meets the requirements of Chapter Six of the Constitution.
(4) The conduct of business and affairs of the Council A ct.
shall be as set out in the Second Schedule to this Term of Office.
44.
(1) The Members of the Council appointed under term of section 43 (1) (a), (e) and (f) shall hold office for f or one three years, and shall be eligible for reappointment further term of three years.
(2) The Members, other than the Chief Executive Office, shall serve on a part-time basis.
the v acancy of office 45.
(1) The offi ce of the Chaii-person or member of Council shall become vacant if the holder (a) dies; (b) resigns from offi ce by notice in writing addressed to the respective appointing Authority specified in section 41; or (c) is removed from office under any of the circumstances specified in Chapter Six of the Constitution.
(2) Where a vacancy occurs in the office of Chairperson or member of the Council, the appointing n ex t authority shall fi ll the vacancy within sixty days following the notification of vacancy referred to in subsection (1).
a (3) A member appointed under subsection (2) to fi ll in vacancy shall serve for the respective term specified section 44.
Remuneration of 46.
The Council shall pay its members suph members of the remuneration or allowances as the Cabinet Secretary shall.
council.
469 Children 2022 No.
29 in consultation w ith t he Salari es and R emuneration Commission, determine.
c ommitt ees of the 47.
(1) The Council may, from time to time, establish committees for the better carrying out of its functions.
(2) The Council may engage such experts or the consultants as the Council may consider necessary for or any effective discharge of its functions under this Act other w ri tten law.
staff of the the 48.
(1) There shall be a Chief Executive Officer of Council.
Council who shall be competitively recruited and appointed by the Council and whose terms and conditions of service shall be determined by the Council on advice of the Salaries and Remuneration Commission.
(2) A person shall be qualified for appointment as Chief Executive Officer if he or she (a) is a citizen of Kenya; (b) holds a relevant post graduate degree from a university recognized in Kenya; (c) has at least ten years experience in social work, administration and management, public administration, human resource or f inance management; and (d) meets the requirements of Chapter Six of the Constitution.
a (3) The Chief Executive Offi cer shall hold office for fi ve term of fi ve years renewable for one further term of y ears.
(4) The Chief Executive Officer shall, in the office, performance of the fi mctions and duties of his or her be responsible to the Council.
(5) The Chief Executive Officer shall be (a) the secretary to the Council; (b) the head of the secretariat of the Council; (c) the accounting officer of the Council; (d) the custodian of all records of the Council; and (e), responsible for 470 Children 2022 No.
29 (i) executing decisions of the Council; (ii) assigning duties to and supervising the staff of the Council, and for co-ordinating and regulating their work in the execution of the functions of the Council; (iii) facilitating, co-ordinating and ensuring the effective discharge of the function of the Council; and (iv) the performance of such other duties as may be assigned by the Council under this Act or any other written law.
(6) The Chief Executive Officer may be removed from office Council in accordance with the terms and conditions of service, for (a) inability to perform the functions of his or her office; (b) gross misconduct or misbehavior; (c) incompetence or neglect of duty; or (d) any other ground that would justify removal from office under his or her terms and conditions of service.
(7) The removal of the Chief Executive Officer fr om his or her office shall be in accordance with the principles 47 of the of fair administrative action prescribed in Article Constitution and the law relating to fair administrative action.
(8) The staff appointed under subsection (1) shall the represent the ethnic, gender and social diversity of country and serve on such terms and conditions as the Council may, in consultation with the Salaries and Remuneration Commission, determine.
(9) The national government may, upon request by the Council, second to the Council such number of public offi cers as the Council may require.
(10) A public officer seconded to the Council shall, during the period of secondment, be deemed to be an the offi cer of the Council, and shall be subject only to direction and control of the Council.
Vii 47 1 Children 2022 No.
29 (11) In the appointment of its staff, the Council shall t he ensure that not more than tw o thirds of the staff of of Council shall be of the same gender, taking account (a) persons with disabilities; and (b) regional and ethnic diversity of the people of Kenya.
The common seal as 49.
(1) The seal of the Council shall be such device of the Council.
in the may be determined by the Council and shall be kept be custody of the Chief Executive Officer, and shall not used except on the order of the Council.
by (2) The affixing of the seal shall be authenticated any the chairperson and the Chief Executive Officer or other person authorized in that behalf by a written resolution of the Council.
a (3) The common seal of the Council, when affixed to and document and duly authenticated, shall be judicially any officially noticed and, unless the contrary is proved, this necessary order or authorization of the Council under section shall be presumed to have been duly given.
Protection fr om 50.
(1) A matter or thing done by a member of the personal liability.
shall Council or any officer, staff or agent of the Council not render such member, officer, staff or agent personally the liable for any action, claim or demand whatsoever if the matter or thing is done in good faith for executing functions, powers or duties of the Council.
(2) The provisions of subsection (1) shall not relieve the Council from liability to pay compensation or damages to any person for any injury suffered by them, their or property or any of their interests and arising directly under indirectly from the exercise of any power confeired Ui dJO 'J this Act or any other written law.
in I 51.
(1) Any proceedings against the Council shall be Council.
deemed to be proceedings against the national government, A ct and shall be subj ect to the Govern ment Proceedings Cap.
40.
and the Public A uthorities L im itations A ct.
Cap.
39.
(2) Any notice or other processes in respect of legal served proceedings contemplated in subsection (1) shall be upon the Chief Executive Officer.
Powers of the out 52.
The Council shall, for the purpose of carrying Council.
as its functions, have power to do all such acts and things 472 Children 2022 No.
29f or appear to it to be requisite, advantageous or convenient or or in connection with the carrying out of its functions incidental to their proper discharge, and may carry out any activities in that behalf either alone or in association with other persons or bodies.
Regulations by the 53.
The Council may, with the approval of the Cabinet of Secretary, make regulations for the effective discharge i ts functions.
County Children 54.
(1) The Council may, for the better perfonnance Advisory Committees.
of its functions, establish such County Children Advisory Committees as it may deem necessary for the proper discharge of its functions at the County level in accordance with this A ct.
(2) The County Children Advisory Committees shall be comprised of the following persons (a) a children officer in charge of the area; (b) the County Commissioner or a representative; (c) the County Director f or Education or a representative; (d) the county executive member for the time being responsible for matters relating to children, or a representative; (e) the County Executive Committee member for the time being responsible for matters relating to education, or a representative; (f) the County Executive Committee member for the time being responsible for matters relating to health, or a representative; (g) a representative of the Director of Public Prosecutions attached to the area w ithin the local j urisdiction of the committee; (h) a probation officer in charge of the area within the local limits of the committees jurisdiction; (i) a police officer attached to the area within the local j urisdiction of the committee; (j) a representative nominated by Public Benefits Organisations engaged in childrens welfare 473 Children 2022 No.
29 activities wi thin t he l ocal lim its of the committees jurisdiction; (k) a representative nominated by public benefits organisations knowledgeable in matters relating to the rights of persons with disabilities; (1) a representative of faith-based organisations within the j urisdiction of the committee; (m) the registrar in charge of the area or a representative; (n) the Labour Officer in-charge of the area or a representative; and (o) a representative of the Council who shall be the Secretary to the Committee.
(3) The County Children Advisory Committee shall perform the following functions (a) assist and collaborate with the Council in the perfoiTnance of its functions within its local j urisdiction; (b) provide a platform for collaboration betw^een the national govern ment and the county government on children matters within its jurisdiction; (c) make recommendations to the Council on any matters relating to children within its jurisdiction; (d) provide infonuation that may be required by the Council on any matter concern ing children within the local limits of its jurisdiction; and (e) perfonu such other functions as the Council may delegate.
Sub-County 55.
(1) The Council shall establish, in relation to Children Advisory Committees.
eveiy sub-county, sub-county children advisory committees, whose functions shall be to advice the County Children Advisory Committees on, and make recommendations for, the implementation of such child welfare programmes as may be necessary for the promotion and protection of the rights of the child in the respective sub-counties.
(2) Without prejudice to the generality of subsection in other (1), the Council may establish advisoiy committees 474 Children 2022 No.
29 advise the decentralized units of service delivery to aid and Act or Council in the discharge of its functions under this any other written law.
(3) Without prejudice to the generality of subsections (1) and (2), the sub-county and other decentralized Children Committees shall (a) facilitate information sharing and networking among key stakeholders in each sub-county and other decentralized units; (b) coordinate children matters and activities at the area of j urisdiction; (c) i nspect, monitor and evaluate children facilities to ensure compliance with standards set by the Council; (d) make recommendations to the County Children Advisory Committee on any matters relating to children within the sub-county or area of j urisdiction; (e) provide information that may be required by the County Children Advisory Committee on any matters relating to children within the area of j urisdiction; (f) submit annual reports to the County Children Advisory Committee on matters relating to children within the area of jurisdiction; (g) promote awareness on children matters within the area of j urisdiction; and ! (h) mobilize resources to support the Councils mandate at the sub-county level and area of j urisdiction.
(4) Pursuant to subsection (1), the sub-county children advisory committees shall submit to the respective County Children Advisory Committees part iculars of the the recommended child welfare programmes in relation to respective sub counties.
(5) The County Children Advisory Committees shall consider the recommendations of the sub county children advisory committees and submit a report to the Chief ! ; Executive Officer.
475 Children 2022 No.
29 this (6) Upon receipt of the any report submitted under section, the Chief Executive Officer shall make recommendations to the Council, and the Council may of approve or withhold its approval for the implementation any of the proposed programs to which the report relates.
(7) If the Council approves any of the recommended child welfare programmes, the Chief Executive Officer in shall notify the relevant county welfare committee writing of such approval (8) If the Council declines to approve the implementation of any proposed child welfare program recommended under this section, the Chief Executive Officer shall notify the relevant county children advisory committee, giving reasons for the decision of the Council.
PART V FINANCIAL PROVISIONS OF THE COUNCIL Funds of the 56.
(1) The funds of the Council shall consist of Council.
of (a) monies appropriated by Parliament for purposes the Council; (b) grants, gift s, donations or other endowments given to the Council; and (c) such funds as may vest in or accrue to the Council in the performance of its functions under this Act or any other written law.
(2) The receipts, earn ings or accruals of the Council shall not and the balances at the close of each financial year be paid into the Consolidated Fund, but shall be retained for purposes of the Council under this Act.
Annual Estimates.
57.
(1) Before the commencement of each financial of the year, the Council shall cause to be prepared estimates revenue and expenditure of the Council for that year.
(2) The annual estimates of the Council shall make Council provision for all the estimated expenditure of the for the financial year concerned.
(3) The annual estimates shall be approved by the Council before commencement of the financial year to which they relate and shall be submitted to the Cabinet shall Secretary for approval and aft er approval, the Council 476 Children 2022 No.
29 the not increase annual estimates w ithout the consent of Cabinet Secretary.
(4) No expenditure shall be incurred for the purposes of the Council except in accordance with the annual of estimates approved under subsection (3), or in pursuance an authorization by the Cabinet Secretary.
Financial year of 58.
The fi nancial year of the Council shall be the the Council.
June in period of twelve months ending on the thirtieth of each year.
Accounts and 59.
(1) The Council shall cause to be kept all proper Audit.
books and records of account of the income, expenditure, assets and liabilities of the Council.
(2) Within a period of three months aft er the end of Auditor- each fi nancial year, the Council shall submit to the General the accounts of the Council in respect of that y ear together with a (a) statement of the income and expenditure of the Council during that year; and (b) statement of the assets and liabilities of the Council on the last day of that financial year.
(3) The annual accounts of the Council shall be No.
34 of 20 13.
the prepared, audited and reported upon in accordance with and provisions of Articles 226 and 229 of the Constitution the Public Audit Act, 2013.
Annual Report s of 60.
(1) The Council shall, in each fi nancial year, the Council.
prepare and submit to the Cabinet Secretary its annual report containing (a) the fi nancial statements of the Council; (b) a description of the activities of the Council; (c) recommendations on specifi c actions to be taken in, furtherance of the mandate of the Council; (d) recommendations on policy, l egislative and administrative measures required to enhance the effective discharge of the functions of the council; and (e) any other relevant information relating to the functions and activities of the Council.
(2) Without prejudice to subsection (1), the Council may prepare, publicise and submit to the Cabinet Secretary 477 2022 Children No.
29 other periodic status report s on the institutions programmes of and actions designed fo r the promotion and protection the rights and welfare of the child.
PART VI ROL E OF COUNTY GOVERNM ENTS The Role of in 61.
(1) In the discharge of the functions specified County Part II of the Fourt h Schedule to the Constitution, every governments.
county government shall (a) provide or facilitate the provision of pre primary education; and (b) provide or facilitate the provision of childcare f acilities.
(2) Every county government shall, in consultation with the Cabinet Secretary, develop policies and guidelines in for the better carrying out of the functions specified subsection (1).
County 62.
A county government may, either by itself or government j ointly with other county governments, and in consultation welfare schemes.
or with the Council, establish welfare schemes to provide facilitate the provision of childcare f acilities and programmes f or children i ncluding children with disabilities.
PART VII CH IL DRENS INSTITUTIONS Establishment of 63.
(1) The Cabinet Secretary shall, in consultation children rescue with the Council and by notice in the Gazette, establish centres.
ehildren reseue eentres in every county for the temporaiy care of children in need of care and protection pending under placement in alternative care or other interventions the A ct.
(2) A child shall be accommodated in a children rescue centre for a period not exceeding six months pending any of the interventions specified in subsection (1).
(3) Without prejudice to the generality of subsection the (1), the Cabinet Secretary may, in consultation with Council, by notice in the Gazette designate such childrens as the institutions to operate as children rescue centres Cabinet Secretary may consider appropriate.
(4) The childrens institutions refen'ed to in subsection or (3) shall not include poliee stations, remand homes rehabilitation sehools.
478 2022 Children No.
29 (5) The Cabinet Secretary shall make regulations to be provide for the procedure and minimum standards to adhered to before the approval of an application for section.
designation as a children rescue centre under this (6) The Cabinet Secretary may collaborate with a county government for purposes of establishing a children rescue centre under subsection (1).
(7) The placement of a child in a children rescue care centre shall only be done in cases where no alternative placement is for the time being available to the child.
(8) A children rescue centre may admit a child to its care - (a) in an emergency situation and the child is referred to the centre by way of an interim care order or a care order; or (b) if the child is taken to the institution by an authorised offi cer or any person who has reasonable cause to believe that the child is in need of care and protection.
Establishment of 64.
( 1) The Inspector-General shall establish child ^ 1-.
r child protection ot units, protection units m every police station for the purposes providing, on a temporary basis, a safe and non-threatening environment for children in conflict w ith the law.
(2) The Secretary may inspect children protection their units established under subsection (1) to ascertain compliance with the general standards prescribed for written childrens institutions under this Act or any other l aw.
(3) The child protection units established under clear subsection (1) shall be desegregated by gender with sections for boys, girls and intersex children.
Charitable 65.
(1) No person shall register or operate a Charitable Childrens I nstitutions.
Childrens Institution except as provided in law.
(2) The Council shall (a) keep and maintain a register of all Charitable Childrens Institutions registered or approved by the Council prior to the commencement of this Act; 479 2022 Children No.
29 (b) prescribe the minimum standards and conditions for operation of existing Charitable Childrens I nstitutions (3) An existing Charitable Childrens Institution shall a valid ensure that every employee of the institution holds criminal certifi cate ascertaining that they have no pending investigations; (4) Without prejudice to the generality of subsection (2), the Council and (a) shall inspect and assess whether the facilities operations of existing Charitable Childrens Institution conform to the minimum standards and conditions set out in this Act and the regulations; (b) may deregister a non-compliant existing Charitable Childrens Institution.
(5) Any person who (a) operates an existing Charitable Childrens Institution contrary to the provisions of this Act; (b) admits a child to the care of an existing Charitable Childrens Institution which is not approved by the Council; or (c) implements or attempts to implement a childrens welfare programme, or to operate a Charitable Childrens Institution in the name of a Public Benefits Organisation, religious organisation or other association, whether incorporated or unincorporated, or otherwise in contravention of this subsection, commits an offence and shall, on conviction, be liable ortoa to imprisonment for a term not exceeding fi ve years fi ne not exceeding fi ve million shillings, or to both.
Manager and Staff 66.
(1) A person operating a Charitable Childrens of Charitable Institution shall appoint or designate- Childrens Institution (a) a duly qualifi ed person as the manager of the institution; and (b) a suffi cient number of staff or other appropriate personnel to assist in the administration of the i nstitution.
480 2022 Children No.
29 (2) A person is qualified for appointment or designation as manager of a Charitable Childrens Institution if the person has (a) a Bachelors degree or Diploma in Social Sciences from a university or other training institution recognized in Kenya; (b) a valid certificate issued by the relevant body certifying that there are no pending criminal investigations against the person or convictions for the offences under the Third Schedule; and (c) at l east three years working experience in an institution involved in the fi eld of social seiwices.
Overriding 67.
(1) The main objective for the establishment of obj ectives of charitable charitable childrens institution shall be to provide family- childrens national based care for all children in accordance w ith the i nstitutions.
of the policy for the promotion and protection of the rights child.
(2) The placement of a child in a Charitable Childrens where I nstitution shall be done as a last resort in cases (a) the child has no immediate access to parental care by the childs parent, guardian or relative, if any; (b) no altern ative family based placement, is for the time being available to the child; or (c) the usual place of abode or home is not conducive to the well-being of the child.
(3) Unless there are compelling circumstances, a child f or shall not be placed in a charitable childrens institution a period exceeding three years.
(4) Without prejudice to the generality of subsection be placed (3), a child below the age of three years shall not in alternative care in an institution, except in compelling circumstances and, in any event, for a period not exceeding three months.
Certain 68.
(1) For the purposes of this Act, a Charitable institutions not Children Institution does not include deemed to be Charitable Childrens (a) a rehabilitation school established by the Cabinet Institutions.
Secretary under section 78; (b) a childrens rescue centre established by the Cabinet Secretary under section 63; 481 2022 Children No.
29 (c) a school within the meaning of the Basic No.
14 of 20 13.
Education Act; (d) a borstal institution; (e) any healthcare institution; or (f) a childrens day care centre, nursery or other similar establishm ent.
(2) Without prejudice to the generality of subsection the w ritten (1), a charitable childrens institution shall, with or approval of the Council, provide medical care, education training for the children accommodated in the institution.
69.
( 1) Any registered Charitable Childrens an Institution may change user of the institution by making application to the Council for approval of the proposed change at least six months prior to the date the proposed change is to take effect.
(2) On receipt of an application under subsection (1), the Council shall take appropriate steps to (a) reintegrate the children placed in the institution with alternative families or guardians; or (b) transfer the children to another institution; and (c) investigate and ascertain the propriety of the proposed change of user and whether the application is made in good faith.
(3) The Council shall not grant the application for before change of user of a charitable childrens institution taking the appropriate steps under subsection (2).
(4) In taking the action specifi ed in subsections (2) of the and (3), the Couneil shall be guided by the principle best interests of the child.
Criteria for 70.
(1) A Charitable Childrens Institution shall not approval of administer any child welfare programme under this Act programmes.
without the prior written approval of the Council.
the (2) The Council shall make regulations setting out criteria f or approval of child welfare programmes administered by charitable childrens institutions.
of (3) The Couneil shall keep and maintain a register approved child welfare programs containing such information as the council may determine.
482 2022 Children No.
29 Placement of 71.
(1) A Charitable Childrens Institution may admit children in a charitable a ehild to its care only if childrens toi nstitution.
(a) in an emergency situation, the child is referred a the institution by way of an interim care order or care order; or (b) 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.
(2) Where a child is admitted to a Charitable Childrens Institution in accordance with subsection (I), the Charitable Childrens Institution shall that (a) within twenty-four hours, inform the Secretary it has admitted a child; and this (b) institute care proceedings under section 153 of Act within seven days of the admission.
a (3) A Charitable Childrens Institution that receives child into its care shall institute the Court proceedings before referred to in subsection (2) and produce the child the Court without delay unless the (a) the parent or guardian of the child applies to Secretary for the release to them of the child; or (b) the child is held in accordance with section 145; be placed (c) it is not in the best interest of the child to w ith the C haritab le C hildren s In stitution.
(4) A Charitable Childrens Institution shall not admit a child into its care w ithout a Court comm ittal order f or specifying, among other things, the maximum period which the child shall be accomm odated in the institution.
(5) In determining whether or not to issue a committal order under subsection (4), the Court shall admit and respect consider any report made by a childrens officer in of the child.
(6) A person shall not remove or transfer a child fr om a Charitable Childrens Institution to another institution without leave of the Court.
72.
(1) The Secretary shall establish appropriate mechanisms to facilitate the effective periodic monitoring being of children, ( , of the wellbeing of every child admitted into a charitable;,, childrens institution, until ' .).
' II.
483 Children 2022 No.
29 (a) the child is discharged therefrom; or (b) the expiry of a care order made in respect of the child.
to (2) The Secretary shall facilitate periodic visits Charitable Childrens I nstitutions by officers duly authorized by the Secretary for the purpose of interviewing into and ascertaining the wellbeing of every child admitted such institutions.
(3) Without prejudice to the generality of subsection ascertain the (2), the authorised offi cers shall, in particular, steps taken by the Charitable Childrens Institution to place the children accommodated therein in family-based alternative care within the period of three years prescribed in section 67(3).
of 73.
(1) The Secretary shall authorise an authorised officer to inspect a charitable childrens institution or any childrens are institutions, other premises which he or she has cause to believe of being used to accommodate children who are in need care and protection.
; (2) Any authorised offi cer acting pursuant to charitable subsection (1) may at all reasonable times enter a to do so, childrens institution, aft er producing, if requested is so a duly authenticated document showing that he or she authorised to do so and shall, in particular (a) interview any child in the institution or premises, and, in so doing, ensure confi dentiality; (b) require the production of an annual report and any other records required to be kept in accordance 1V7 with the regulations made under section 89; (c) inspect the conditions and facilities provided by the institution or managers of the premises; and (d) prepare and submit a report outlining his or her fi ndings and recommendations.
(3) The obstruction or refusal by any person to allow / ' toent er any authorised officer referred to in subsection (2) referred to a charitable childrens institution or the premises in subsection (1) for the purpose of inspecting such in institution or premises, or interviewing any person respect of such institution or premises, shall be suffi cient 484 2022 Children No.
29 in ground to suspect that a child or children accommodated or the institution or premises is or are being neglected abused, and that such children are in need of alternative care and protection.
(4) Upon receipt of an inspection report, the Secretary as may, in addition to taking such other remedial measures a may be prescribed by the Cabinet Secretary, require charitable childrens i nstitution to appoint a new management and institute appropriate remedial measures: Provided that the Secretary may, in consultation with the relevant County Children Advisory Committee, appoint a manager to manage the institution for a period not exceeding two months in order to institute appropriate remedial measures.
(5) The functions and powers of the authorised officer to, and appointed under this section shall be supplemental not in derogation fr om the functions and powers conferred 88.
on an inspection committee appointed under section (6) Any person who, without lawflil justification, refuses to al l ow an authorised of f icer r ef en-ed toinor subsection (2) to enter a charitable childrens institution who such premises as are mentioned in subsection (1), or or fails interferes in any way with the work of such officer, to produce any report or records, or conceals any facility and within such institution or premises, commits an offence not is liable, on conviction, to imprisonment for a term exceeding three years or to a fi ne not exceeding one million shillings, or to both.
Duty to notify the or 74.
(1) A duly registered public benefit organisation Council.
charitable childrens institution w hich intends to implement and a child welfare programme shall notify the Council provide full information on (a) the mode of operation of the proposed programme; and (b) the specific obj ects of the programme.
(2) The Chief Executive Officer shall prepare and submit to the Council a report containing the information relating to the proposed child welfare programme referred to in subsection (1), and the Council may approve or it as the withhold its approval of such programme or part of 485 2022 Children No.
29 Council may determine, taking into account the best i nterests of children.
(3) Where the Council withliolds approval of a proposed child welfare programme or any part of it, any part person who implements the whole or any unauthorized of the proposed programme commits an offence and shall not be liable, on conviction, to imprisonment for a term tw o exceeding twelve months or to a fi ne not exceeding hundred thousand shillings, or to both.
(4) If aft er conviction under subsection (3), the person the continues to implement the proposed program without to the approval of the Council, the person shall, in addition penalty prescribed in subsection (3), be l iable, on conviction, to a fi ne not exceeding ten thousand shillings for each day during which the offending implementation continues.
Review of child 75.
( 1) The County Children Advisory Committee welfare shall, at the end of twelve months fr om the date of approval programmes.
of a Child Welfare Programme, and thereafter annually, review the programme and advise the Council on whether the programme is operating according to the standards prescribed by the Council.
(2) If, on receipt of the report of the County Children the Advisory Committee given pursuant to subsection (1), Council forms the view that the programme under review does not meet all or any of the standards prescribed by the Council, the Council shall either (a) direct that the relevant institution by which the program is implemented takes such steps as the Chief Executive Offi cer may specify in writing to r.
facilitate compliance with the standards prescribed by the Council under this Act; or (b) recommend that the Child Welfare Program in question be deregistered and terminated on such conditions as the Council may determine.
(3) Subj ect to subsection (2)(b), the Council may direct that- (a) the programme be tera iinated with immediate effect; and 486 2022 Children No.
29 be (b) all children admitt ed to the relevant institution transferred to, and placed under alternative care of, any fit person or institution.
(4) If the Council directs that a child welfare program under this be deregistered, the certificate of approval issued stand Act in respect of the programme under review shall revoked.
(5) Any person who continues to implement a the deregistered child welfare program in respect of which Council has directed to be terminated under this section to commits an offence and shall, upon conviction, be liable or to imprisonment for a term not exceeding twelve months or toa fi ne not exceeding two hundred thousand shillings, both.
76.
(1) Without prejudice to the generality of section chul weTfee ' 73, the Council may, on the recommendation of the County programme.
the Children Advisory Committ ee, deregister and direct termination of a Child Welfare Programme in the respective county on the grounds that^ and (a) the programme is unfi t for the care, protection control of children; (b) the children in respect of whom the program is administered are likely to suffer prej udice, or that the program is likely to occasion harm to such children; or (c) the institution by which the program is administered has contravened any of the regulations made under this Act or any other written law.
luu , h'l' ' (2) The Council shall not deregister any child welfare program unless and until it accords the institution by which heard in the program is administered fair opportunity to be the matt er in accordance with the principals of fair administrative action prescribed in ic icle 47 of the Constitution: of Provided that the Council shall give writt en notice to the proposed deregistration and invite the programme of such , , make its response within thirty days from the date notice.
In c.
487 Children 2022 No.
29 (3) Any person aggrieved by the deeision of the Council made under this section may appeal to the Cabinet Secretary with a further appeal to the High Court.
(4) If a child welfare program is deregistered, the Secretary shall, subj ect to any directions of the Cabinet Secretary, take such remedial measures as may be necessary to protect the children accommodated in the programme.
(5) Upon the deregistration of a child welfare program such in accordance with this Act, the Secretary shall take steps as may be necessary to (a) reintegrate the children with their respective families or guardians; (b) transfer the children to another registered institution; or (c) remove any child or children from the institution; (d) ensure the immediate closure of the institution; (e) take such necessary steps, including prosecution, to secure appropriate penal sanctions against the manager in accordance with section 75(5); or (f) take such other action as may be necessary for the protection of the children.
(6) Nothing in this section shall be construed as of user in limiting an institutions right to apply for change accordance w ith section 69.
(7) The Cabinet Secretary shall make regulations to of provide for the procedure for reintegration and transfer Children under this Part.
Establishment of 77.
(1) The Cabinet Secretary may, by notice in the childrens fjCmand the homes.
Gazette, establish such childrens remand homes as Cabinet Secretary considers necessary f or the accommodation, care and protection of children in conflict the with the law, and the Cabinet Secretary shall facilitate with provision in such homes suitable facilities for children special needs.
: I ' (2) The purpose of remand homes is to hold children in confl ict w ith the law as a matter of last resort for their care and protection during trial before a verdict or placement.
488 2022 Children No.
29 (3) A remand home shall have separate sections for and risks.
children of different sexes, age categories, needs a (4) The manager of any public institution, other than that prison, may enter into an agreement for the use of home institution or any part thereof as a childrens remand and on such terms as may be agreed between the manager the Secretary.
Establishment of 78.
(1) The Cabinet Secretary may, by notice in the rehabilitation as Gazette, establish such number of rehabilitation schools schools.
the Cabinet Secretary may consider necessary to provide and rehabilitation, accommodation, education, training facilities for the care and protection of children.
the (2) Subj ect to subsection (3), any person may, with a approval of the Cabinet Secretaiy , establish and manage private institution suitable for- of (a) the reception, education and vocational training children; and (b) the rehabilitation, care and protection of children.
(3) Without prejudice to the generality of subsections (1) and (2), every rehabilitation school shall be suitably and designed and equipped to implement such educational the vocational training programmes as may be approved by m atter s Cabinet Secretary for the time being responsible for relating to basic education and vocational training.
(4) The manager of any institution which is suitable for the reception, maintenance, training and rehabilitation school of children ordered to be sent to a rehabilitation under this Act may apply to the Cabinet Secretary to approve the institution for that purpose, and the Cabinet Secretary may, by notice in the Gazette, declare the i nstitution to be ar ehabilitation school and i ssue a certificate of approval to the manager.
(5) Where the Secretary is dissatisfied with the the condition or management of a rehabilitation school, Secretary may (a) take such disciplinary action against the manager as the Cabinet Secretaiy may detemiine; or (b) direct the manager by notice in writing to show cause why the cert ificate of approval issued in 489 Children 2022 No.
29 accordance with subsection (3) should not be withdrawn.
(6) If the manager fails to comply with the eonditions the in the notice refen'ed to in subsection (5)(b) within period specified in the notice (a) the notice shall take immediate effect, and the cert ificate of approval issued under this section shall stand withdrawn; (b) the Seeretary may, by notiee in writing to the manager, prohibit furt her admission of children to the sehool for such period as may be specified in the notice.
the (7) If the Secretary is satisfied on evidence that continuation of a rehabilitation school is unnecessary (a) the Seeretaiy may give to the manager not less than six months notice in writing of his or her intention to withdraw the cert ificate of approval; and of (b) on the expiration of the notice, the cert ifieate approval shall stand withdrawn, and the school shall cease to be a rehabilitation school w ithin the meaning of this Act.
(8) Any person aggrieved by the decision to deregister may a rehabilitation school under subsection (6) and (7) appeal to the High Court within thirt y days (9) The manager of a rehabilitation school may, after to the giving not less than six months notice in writing cert ificate Secretaiy of his intention so to do, suirender the the of approval of the school, and, on the expiration of the notice, unless the notice is previously withdrawn, cert ificate of approval shall be deemed to have been to be surrendered and the rehabilitation school shall cease approved.
(10) A child shall not be received into a rehabilitation school under this Act after notice has been given of of intention tow ithdraw or surrender the eert ificate approval: Provided that the obligations of the manager with notice respect to children under his care at the date of the the shall eontinue until the withdrawal or suiTender of cert ificate of approval takes effect.
490 Children 2022 No.
29 (11) The Cabinet Secretary may, on the advice of the Secretary, by notice in the Gazette, publicize the withdrawal or surrender of any certificate of approval i ssued under this section.
Rehabilitation 79.
(1) There shall be separate rehabilitation school schools to classified f or children in confl ict with the l aw in establish separate accordance with the needs and risks of different sexes and sections, age categories.
(2) Every rehabilitation school shall have- (a) separate sections for children of different sex; (b) separate sections for children of different age categories; the (c) separate sections for children in confl ict with law; and (d) separate sections for various risk categories; (e) a counsellor or psychologist; (3) Without prejudice to the generality of subsection risks (2)(c), regard shall be had to the specific needs and children in involved in relation to the different categories of confl ict w ith the law.
80.
The manager of a rehabilitation school shall admit into the school every child who is duly placed or rehabmtotTon transferred to the school or otherwise committed to the school, managers care, unless (a) the sehool is an institution for persons of a different sex and age from that of the child whom it is proposed to place or transfer; (b) the manager shows to the satisfaction of the Secretary that it is not in the best interest of the children to admit any more children into the school, having regard to the condition of the school; (c) the manager shows to the satisfaction of the Secretary that it is not in the best interest of the child that the child be committed to the managers ( care.
L eave of absence 81.
The manager of a rehabilitation school may, with fr om school.
the authority of the Secretary, grant leave of absence to any ' child accommodated in that rehabilitation school for' such 491 Children 2022 No.
29 period and on such conditions as the manager may consider the fit, and may at any time terminate such leave and direct child to return to the school.
Revocation of 82.
(1) If at any time during the period of a childs childrens is committal order.
placement at a rehabilitation school the Secretary school satisfied that such child should not remain in the the under a committal order for the time being in force, Secretary may apply to the Childrens Court for revocation of the Committal Order.
(2) Without prejudice to the generality of subsection of any (1), the Court may at any time or on the application person, revoke an order committing a child to a rehabilitation school, having regard to the matters made contained in the relevant records of the Court which court the order together with all relevant records of any which may have previously considered any application made under this section.
of (3) Notwithstanding anything in this Act, an order shall the Court committing a child to a rehabilitation school and not remain in force for a period exceeding three years attains in any case not beyond the date on which the child the age of eighteen years.
(4) Unless the Court otherwise orders on application of the for an order under subsections (2) or (3), the manager shall rehabilitation school at which the child is placed facilitate the production of the child before the Court.
Transfers and 83.
(1) The Secretary may through a court order, at supervision on release.
any time cause a child to be transferred from one his or her rehabilitation school to another, but the period of of such rehabilitative care shall not be increased by reason transfer.
(2) A child committed to a rehabilitation school shall, or her aft er the expiration of the prescribed period of his as stay, be under the supervision of a probation officer, ordered by the court for a period of two years.
84.
(1) Where the Secretary observes that a child children of committed to a rehabilitation school persistently absconds, difficult character.
is of difficult character, or is exercising inappropriate influence on the other children in the school, the Secretary may apply to the Court having geographical jurisdiction over the school for,an order 492 Children 2022 No.
29 (a) in the case of a child below the age of sixteen years, directing that the period of committal be extended by a period not exceeding six months; (b) in the case of a child above the age of sixteen years, directing that the child be transferred to a borstal institution; or (c) directing that the child be provided with appropriate medical treatment or professional counselling seiwices, in any of the following cases (i) cases where the childs conduct is attributable to drug abuse; (ii) cases where the child is of unsound mind; or (iii) cases where the child is suffering from a mental illness.
(2) In any proceedings under this section, the parents, guardian or any other person who has parental and be responsibility over the child, shall be notified of, that heard in, the proceedings, unless the Court is satisfied be such persons cannot be found, or cannot reasonably expected to attend at the proceedings.
(3) The expenses incun-ed in committing a child under this section shall be born e by the State.
(4) In any case where the period of committal is extended, or where the child is committed to a borstal institution, the child shall be provided with appropriate professional assistance, including legal services in accordance with the law relating to legal aid.
Removal to health 85.
(1) Where a child detained in a remand home or in st i tu tion.
of medical rehabilitation school is seriously ill and in need child to care, the manager shall facilitate the removal of the an appropriate health facility on the advice of a psychologist, medical officer or medical practitioner.
(2) If the medical officer in charge of a health institution is of the considered view that the health of a this child removed to a hospital under the provisions of section no longer requires treatment, the medical officer shall notify the manager of the remand home or and rehabilitation school from which the child was refen-ed, 493 Children 2022 No.
29 the child the manager shall thereupon facilitate the return of to the hom e or school.
(3) The medical officer in charge of the health take such institution at which the child is hospitalized shall the reasonable precautions as may be necessary to prevent child from escaping: Provided that nothing shall be done under the medical authority of this section which in the opinion of the to be officer in charge of the health institution is likely prejudicial to the health or wellbeing of the child concerned.
Authority to a 86.
(1) The order committing a child to custody in confine a child.
a childrens remand home or ordering him to be sent to f or hi s rehabilitation school shall be sufficient authority confinement in that place in accordance with the tenure section thereof, or in a health institution in accordance with 85.
(2) A child shall be deemed to be in lawful custody toor where the child is confi ned to or is being conveyed to from a childrens remand home or a rehabilitation school or from a health institution, as the case may be.
87.
(1) The Secretaiy shall be responsible for the centres, supervision of all rescue centres, child protection charitable childrens institutions, remand homes and rehabilitation schools.
(2) In the discharge of the Secretarys supervisory shall responsibilities under this section, the Secretary and inspect or cause to be inspected the schools, homes of centres referred to in subsection (1) for the piupose wellbeing ascertaining the conditions of the centres and the of the children placed in such centres.
(3) Upon inspection of the facilities referred to in subsections (1) and (2), the Secretary shall take appropriate steps to facilitate the improvement of (a) the conditions of the institutions to which this section relates; and (b) the wellbeing of the children therein placed.
shall (4) For the purposes of this section, the Secretary arescue facilitate placement of a child under the custody of 494 Children 2022 No.
29 earliest centre to appropriate alternative family care at the opportunity: Provided that no child shall be placed in a child rescue centre for a period exceeding six months.
Inspection 88.
(1) The Cabinet Secretary shall appoint an committees.
child inspection committee to inspect any rescue centre, remand protection centre, charitable childrens institution, home or rehabilitation school or a borstal institution.
(2) The committee appointed under subsection (1) shall shall be comprised of not more than fi ve persons, and by the exercise and perfonn, subject to any directions given Cabinet Secretary.
be (3) The functions of the inspection cormnittee shall ta (a) inspect rehabilitation schools, childrens remand homes, charitable childrens institutions, child rescue centres, child protection centres and other child care facilities; (b) interview any child in the premises or institution, and, in so doing, ensure confi dentiality; (c) interview the manager and other members of staff in the institution; by (d) inspect the conditions and facilities provided the institution or manager of the premises; and recommendations on (e) make necessary improvements, remedial measures or closure of the institution or premises, or relocation of children housed in the institution or premises.
(4) Subject to subsection (3), the Secretary shall, within three months of the receipt from the Cabinet Secretary of any directions relating to the recommendations made under this section, report to the Cabinet Secretary specifying the steps taken by the Secretary to implement the recommendations of the inspection committee.
(5) The recommendations referred to in this section of a may include closure, deregistration and revocation certifi cate of approval.
^ ? (6) The Cabinet Secretary shall prescribe regulations for composition and conduct of an inspection committee.
495 Children 2022 No.
29 Regulations.
89.
The Cabinet Secretary may, on the the recommendation of the Council, make regulations for and, in better carrying out of the provisions of this Part particular, such regulations shall make provision for (a) the establishment, administration and supervision of children institutions; (b) the requirements and procedure for approval of childrens welfare programmes; (c) the management of remand homes, rehabilitation schools, child rescue centres, child protection centres, and charitable childrens institutions; (d) requirements as to the accommodation, staff and equipment to be provided in the institutions referred to in paragraph (a); (e) academic qualifications for persons to be employed in childrens institutions (f) the training and remuneration of persons employed in childrens remand homes, rehabilitation schools, child rescue centres, and child protection centres; of (g) the criteria to be applied to limit the number children who may be accoimuodated in the institutions refeiTed to in paragraph (a); (h) the education and training of children in the institutions refeired to in paragraph (a); (i) religious instruction to children in the institutions referred to in paragraph (a); (j) the access to health care by children in the institutions referred to in paragraph (a); (k) special care for children with disabilities, chronic ailments or other special needs in the institutions referred to in paragraph (a); (1) requirements as to the keeping of records and giving of notices in respect of children received in the institutions refeiTed to in paragraph (a);.
\ ' (m) the conduct of reviews under section 78; (n) the conduct of inspecti ons of the institutions refen'ed to in paragraph (a); 496 Children 2022 No.
29 (o) con-ective measures which may be imposed by the Secretary after inspection of the institutions refen-ed to in paragraph (a), and penalties for non-compliance therewith; (P) appeals against decisions made under this Paif ; (q) foster care applications under section 173; the minimum standards to be adhered to before (r) the approval of an application to establish a charitable childrens institution under section 65; and the conduct of diversion under Part XV.
(s) PA RTVIIICHILDRENSCOURTS 90.
(1) The Chief Justice may, by notice in the chUdrensCoun^ and Gazette, designate childrens court s in such counties sub counties as the Chief Justice may determine.
(2) 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.
(3) There shall be a Registrar and such number of in Deputy Registrars of the Court as may be appointed No.
I of 20 11.
accordance w ith the Judicial Service A ct.
(4) Without prejudice to the generality of subsection (1), the childrens Court shall have civil and criruinal jurisdiction.
(5) Nothing in this section shall preclude the High Court f rom entert aining an appeal or other reference with relating to the diversion or trial of a child in conflict the law : this Provided that in exercise of its jurisdiction under this A ct.
Act, the Court shall comply with the provisions of Jurisdiction of the 91.
(1) Without prejudice to the generality of section Childrens Court.
to 90(1), the childrens Court shall have jurisdiction (a) conduct civil proceedings on matters set out under Part s III, V II, V III, IX , X , XI,X III, X IV and XV of this Act; (b) hear any charge against a child, other than a charge of murder; 497 Children 2022 No.
29 (c) hear a charge against any person accused of an offence under this Act; (d) hear a charge in any case in which a person is accused of an offence against a child or in which a child is the victim or complainant; and (e) exercise any other jurisdiction conferred by this Act or any other written law.
(2) Subject to any rules or directions made or issued by the Chief Justice, where under any other written law any aC ourt matter involving a child is required to be heard by f or the other than a Childrens Court, that other Court shall, puiposes of that matter, be deemed to be a Childrens A ct.
Court , and shall be bound by the provisions of this (3) Any reference to a subordinate court of any class in the First Schedule to the Crim inal Procedure Code shall Cap.
75.
i nclude a Childrens Court.
or (4) The Magistrate in charge of the Court s station his or her representative shall preside over all cases involving children in respect of the Court sj urisdiction.
(5) Where, in the course of any proceedings in a person childrens Court, it appears to the Court that the the charged, or to whom the proceedings relate, is above age of eighteen years, the Court shall transfer the to proceedings to a Court other than a childrens Court conduct the proceedings under any other relevant law.
(6) Where, in the course of any proceedings in any the Court Court other than a Children's Court , it appears to relate, that the person charged or to whom the proceedings transfer is under the age of eighteen years, the Court shall the proceedings to a Children's Court to conduct the proceedings under this Act: Provided that no transfer shall be necessaiy in any in case where the magistrate concerned is duly appointed relating accordance with section 90 to preside over matters to children.
(7) Where any conviction or sentence made or passed by a Court other than a Children's Court is appealed against, or is brought before the High Court for confirmation or revision, and it appears that the person 498 Children 2022 No.
29 convicted was at the time of commission of the offence have under the age of eighteen years, the High Court shall guilt in power to substitute for the conviction a finding of accordance w ith section 22 1.
(8) A Childrens Court may, either on its own motion or on the application by any person, visit any childrens institution and assess its condition and the circumstances under which the children are admitted, and on assessment, make any order as the Court may determine in the best interest of the children.
Friendly 92.
A Childrens Court shall have a setting that is environment of friendly to the children who are before it.
Childrens Court.
Sitting of and 93.
(1) A Childrens Court shall sit at such times Childrens Court.
in the in such locations as the Chief Justice may, by notice gazette, determine.
(2) Without prejudice to the generality of subsection or in (1), a childrens Court shall not sit at the same time, the same Courtroom at which the sittings of the Court, held: other than the sittings of the childrens Court, are Provided that any Magistrates court may be converted into a Children court for the purpose of conducting proceedings under this Act.
of (3) The Courtroom or premises at which the sittings the childrens Court are held shall be suitably designated and reasonably equipped to facilitate (a) the provision of the individual needs of children, having regard to their state of health, age and gender; (b) the provision of such services as may be required to meet the special needs of children in need of care, including children with disabilities; and (c) the highest attainable standards of hygiene, sanitation and comfort.
(4) No person other than the following may attend any proceedings or be present at any sitting of a Childrens Court of (a) the judicial officer, members and other officers the Court;.
i.
, 499 Children 2022 No.
29 (b) a childrens officer duly appointed by the Secretary to assist the childrens Court in its proceedings; (c) parents or guardians of the child involved in the proceedings; (d) any person directly or indirectly involved in the matter before the Court, including complainants, witnesses and any professional required to submit any report on a child to whom the proceedings relate; (e) a duly accredited journalist or duly registered media professional; or (f) such other persons as the Court may authorize to be present.
(5) Nothing in this section shall prevent the Court of any from holding its sittings in camera to the exclusion person mentioned in paragraphs (c), (d) and (e).
Power to make 94.
Where in any proceedings relating to an offence.
, , if1 - orders relating to against or by a child, of a sexual nature, a person who, m pnvaoy in proceedings.
y ears the opinion of the Court, is under the age of eighteen such is called as a witness, the Court shall direct that witness be protected by one or more of the following m easu res (a) allowing such witness to give evidence under the protective cover of a witness prptection box; (b) directing that the witness shall give evidence through an intermediary pursuant to Article 50(7) of the Constitution; in (c) directing that the proceedings do not take place open Court; the (d) prohibiting the publication of the identity of complainant or of the complainants family, including publication of any info rmation that may lead to the identification of the complainant or the complainants family; (e) any other measure which the Court deems just and appropriate; or 500 Children 2022 No.
29 (f) any other safeguards provided under the Witness Protection Act, 2006 or any other written law.
No.
16 of 2006.
General principles is 95.
(1) Subj ect to subsection (4), where the Court with regard to A ct considering whether or not to make an order under this proceedings in Childrens Court order with respect to a child, the Court shall not make any of the unless it considers that doing so is in the best interest child.
(2) Where the Court is considering whether or not to make an order under subsection (1), it shall have particular regard to (a) the ascertainable feelings and wishes of the child concerned having regard to the childs age and understanding; (b) the childs physical, emotional and educational needs and, in particular, where the child has a disability or chronic illness or where the child is to intersex, the ability of any person or institution provide any special care or medical attention which may be required for the wellbeing of 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 the risk of suffering; in (f) the ability of the parent, or any other person 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 and the need to ensure that the child easily integrates while not subj ected to harmful cultural practices; (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 which may be required for the child; and 50 1 Children 2022 No.
29 (i) the powers which the Court has under this Act or any other written law.
to (3) In any proceedings in which an issue arises as to the the upbringing of a child, the Court shall have regard question general principle that any delay in determining the is likely to be prej udicial to the welfare of the child.
the (4) The Court may, if it considers it necessary for it, either proper determination of any matter in issue before su mmon of its own motion or on application by any person, any expert witness whom it considers appropriate to any provide assistance to the Court , and the expenses of such witness, shall be assessed by the Court and such expenses shall be a charge on the Judiciary Fund.
(5) In relation to any proceedings concern ing a child, written whether instituted under this Act or under any other law, a person shall not publish or reveal in any publication or report , including any law report , any of the following m atters (a) a childs name, identity, home or last place of residence or school; or (b) the part iculars of the childs parents or relatives; (c) any photograph, depiction or caricature of the child.
(6) The Registrar of the Childrens Court shall cause child so to be marked all records of the Court concern ing a as to indicate that such records relate to matters involving a any child, and such records shall only be available to specified person without disclosure of any of the part iculars in subsection (5).
(7) For the avoidance of doubt, the name or other that they part iculars of the child shall be marked to indicate concern a child, and access may be restricted and available (5).
only without part iculars as specified in subsection (8) Any person who contravenes the provisions of on subsections (5) and (6) commits an offence and shall, hundred conviction, be liable to a fine not exceeding five thousand shillings or imprisomnent for a term not of a exceeding twelve months, or to both, and, in the case shillings.
body corporate, a fine of not less than one million 502 Children 2022 No.
29 of 96.
(1) Where a child who has not attained the age a sixteen is a complainant or is otherwise brought before cases.
other childrens Court in proceedings under this Act or any written l aw, the Court shall, where the child is unrepresented, order that the child be granted legal No.
6 of 20 16.
2016.
representation in accordance with the Legal Aid Act, (2) Any reasonable fees and expenses incurred in relation to the legal representation of a child under A id subsections (1) or (2) shall be a charge on the Legal Fund.
(3) Without prejudice to the generality of subsection (1), a child in confl ict with the law shall be entitled to legal representation at the States expense.
Power of Court to to 97.
(1) When considering any question with respect order produetion a child under this Act, the Court may summon and direct of reports.
statem ent any person to prepare and present to it a report or the containing such information in respect of a child as Court may direct.
or (2) Without prejudice to the provisions in this Act any other written law, the Court may take into account to in (a) any statement contained in the report referred subsection (1); or (b) any evidence given in respect of the matters referred to in the report and in so far as the statement or evidence is, in the opinion of the Court, relevant to any matter in issue before the Court.
(3) Where the Court orders or summons an expert shall pursuant to subsection (1), a party to the proceedings the be given an opportunity to submit their views before court makes an order.
Appointment of 98.
A court before which a child is brought, and guardian ad litem.
especially where that child is not represented by an advocate, may appoint guardian ad litem for the purposes interests of the proceedings in question and to safeguard the of the child.
Appeals, 99.
Unless otherwise provided under this Act, in any an civil or criminal proceedings in a Childrens Court, appeal shall lie- J.
503 Children 2022 No.
29 of (a) in the first instance, to the High Court on points fact and law; and on (b) in the second instance, to the Court of Appeal points of law only.
Rules.
100.
The Chief Justice shall make Rules to give effect to this Part.
PART IX CUSTODY AND M AINTENANCE care and 101.
(1) Where a person who does not have the legal of ' custody of a child is entrusted with the care and control the the child, the person is under a duty to safeguard interests and w elfare of the child.
(2) Where a person, not having legal custody of a shall be child, has actual custody of the child, the person shall deemed to be charged with the care of the child, and and take all reasonable steps to safeguard the interests welfare of the child.
(3) In this Act, unless the context otherwise requires, home reference to the person under whom a child has his child refers to the person who has care and control of that school, and does not include a hospital, hostel or boarding at which the child is temporarily accommodated.
Custody order.
102.
(1) A Court may, on the application of one or order more persons qualified under subsection (3), make an or vesting the legal custody of a child in the applicant applicants.
r (2) An order under subsection (1) may be referred to of as a custody order, and the person to whom legal custody of the the child is aw arded is referred to as the custodian.
'jq child.
, 'S, 3d If / ' (3) Any of the following persons may be granted custody of a child (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 a period of three years preceding the making of the application, unless the Court is satisfied on evidence that a shorter period 504 Children 2022 No.
29 is sufficient to j ustify an order made in determination of the application; or (d) any person who, while not falling within paragraphs (a), (b) or (c), can show cause, having regard to section 101, why an order should be made awarding the person custody of the child.
(4) Nothing in this section may be construed as the limiting the power of the Court to make an order, on of a application of the Secretary, directing the removal on child fr om an abusive home or institution and placement temporary alternative care on such terms as the Court may think fit.
Principles to be 103.
(1) In detennining whether or not a custody order applied in making shall should be made in favour of an applicant, the Court custody order.
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 the child taking into account the childs evolving capacity; (d) whether the child has suffered any harm or is likely to suffer any hann if the order is not made; (e) the customs of the community to which the child belongs; (f) the religious persuasion of the child; (g) whether a care order, supervision order, personal protection order or an exclusion order has been made in relation to the child concerned, and whether those orders remain in force; (h) the circumstances of any sibling of the child concerned, and of any other children of the home, if any; (i) any of the matters specified in section 95(2) where the court considers such matters to be relevant in the making of an order under this section; and (j) the best interest of the child.
505 Children 2022 No.
29 a (2) Where a custody order is made giving custody of toone child to one parent, or in the case of joint guardians, guardian, the Court may order that the person not awarded duties custody shall nevert heless have all or any rights and in relation to a child, other than the right to actual of possession, jointly with the person who is given custody the child.
the (3) The rights specified in subsection (2) include may right of access to the child on such tenns as the Court direct.
(4) In any case where a decree for j udicial separation or a decree for divorce is pronounced, and the Court parent pronouncing the divorce decree detenuines that the be by reason of whose misconduct the decree is made to of unfit to have the legal custody of the child or children not, the maiTiage, the parent so declared to be unfit shall legal upon the death of the other parent, be entitled to custody of the child without leave of the Court.
Restriction on 104.
(1) Where an application for a custody order in removal of a child child where applicant respect of a child made by the person with whom the has provided f or a has, at the time the application is made, had his home home for three no person period, whether continuous or not, of tliree years, years toremove shall be entitled, against the will of the applicant, of the the child from the applicants custody without leave Court.
(2) A person who contravenes subsection (1) commits an offence and shall be li able on conviction to or to a imprisonment for a term not exceeding three months orto fi ne of not less than one hundred thousand shillings, both.
Return of child 105.
(1) A Court may, on the application of a person removed in breach from whom a child has been removed in breach of section of section 104.
to 104, order the person who has so removed the child has return the child to the applicant, and where the child the been removed from the jurisdiction of the Court or Republic of Kenya, make a wardship order or a production order on such conditions as the Court may think fi t.
(2) A Court may, on the application of a person who has reasonable grounds for believing that another person in intends to remove a child from the applicants custody by the breach of section 107, by order prohibit the removal person of the child from the applicant.
506 Children 2022 No.
29 (3) Where a Court is satisfied by infonuation on oath a child that there are reasonable grounds for believing that the to whom an order under subsection (1) relates is in i ssue premises specified in the information, the Court may the a search warrant authorising a police officer to search of a premises; and if the police officer, acting in pursuance she shall warrant under this section, finds the child, he or the return the child to the person on whose application order under subsection (1) was made.
(4) Where a Court makes a custody order with respect directions to a child, the Court shall, in addition, give such as the as to any rights of access to the child on such terms Court may direct.
Conflict of 106.
If two persons have parental rights or duty vested interest of j oint on in them jointly under a custody order, but cannot agree custodians.
to the its exercise or perfonnance, either person may apply the Court, and the Court may make such orders regarding such exercise of the right or perfonnance of the duty on tenns as the Court think s fit.
Revocation of 107.
(1) A Court may, on application in the prescribed custody order.
form, revoke a custody order: Provided that, before doing so, the court shall make the child, an order as to who is thereafter to have custody of or give an appropriate order pursuant to section 135.
(2) The Court shall not proceed to hear an application prior made for the revocation of a custody order where a has application made in that regard by the same applicant been refused by that Court or any other Court of competent jurisdiction, unless (a) in revising the previous application, the Court directed that this subsection shall not apply; or (b) it appears to the Court that, by reason of a change in the circumstances, or for any other good reason, it is proper to proceed with the application.
f or (3) The custodian of a child may apply to the Court to the revocation of any order made with regard to access of the child or with respect to the access and maintenance the child.
in (4) Any other person on whose application an order or respect of access or maintenance of a child was made, who was required under such an order to contribute 507 Children 2022 No.
29 aC ourt towards the maintenance of the child, may apply to f or the rev ocation or variation of that order.
in (5) Any order in relation to access or maintenance shall not respect of a child who is subject of a custody order order cease to have effect on the revocation of a custody unless the Court otherw ise directs.
(6) A custody order made in respect of a child, and child any order in respect of access or maintenance of a to have who is the subj ect of a custody order, shall cease effect when the child attains the age of eighteen years: Provided that the Court has power, on application made, to extend a custody, access or maintenance order as the beyond the childs eighteenth birthday on such terms Court may deem fit.
Interim custody 108.
(1) The Court shall have power to make interim orders.
custody orders and may from time to time review, suspend or vary such orders.
(2) The Court shall not make an interim custody order under sub-section (1) for a period exceeding twelve months.
Custody 109.
An agreement made between the parents of a agreement not to child shall not be invalid by reason only that it provides be invalid in certain of the child that the father shall give legal or actual custody circumstances.
to the m other or v ice versa: Provided that the Court shall not enforce any such not in the agreement if the Court is of the opinion that it is best interest of the child to do so.
Joint maintenance to 110.
Unless the Court otherwise directs, and subj ect of children.
be made any fi nancial contribution ordered by the Court to by any other person, the following presumptions shall apply with regard to the maintenance of a child both (a) it shall be the j oint duty and responsibility of parents to maintain the child whether or not the parents are married to each other; (b) where two or more guardians of a child have been appointed, it shall be the duty of all the guardians to maintain the child whether jointly 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 j oint responsibility of all custodians to maintain the child; 508 Children 2022 No.
29 (d) where a residence order is made in favour of more than one person, it shall be the duty of those persons to j ointly maintain the child; or (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 mam ed and where the father or mother of the child have acquired parental responsibility of the child, it shall be the j oint responsibility of the mother and f ather of the child to m aintain that child.
Power to make or 111.
(1) A parent, guardian or custodian of a child, maintenance order.
an authorised officer, may apply to the Court to detera iine and to any matter relating to the maintenance of the child make a maintenance order: Provided that on the making, varying, or discharging Court of a residence, guardianship or custody order, the may make a maintenance order for a child notwithstanding in the fact that no application has been made to the Court that regard.
(2) A person or the guardian of a person who has of the attained the age of eighteen years may, with the leave be Court , apply to the Court f or a maintenance order to made in his favour in any of the following circumstances (a) the person is or will be involved in the education and training which will extend beyond the persons eighteenth birt hday; (b) the person has a disability and requires specialised care which will extend beyond the persons eighteenth birt hday; (c) the person is suffering from an illness or ailment and will require medical care which will extend beyond the persons eighteenth birt hday; or (d) other special circumstances exist that would warrant the making of the order.
Maintenance 112.
The Court may make a maintenance order, during matrimonial whether or not proceedings for nullity, j udicial separation, proceedings.
divorce or any other matrimonial proceedings have been or aft er a filed by a parent of a child, or during proceedings final decree is made in such proceedings: Provided that, once the proceedings for the maintenance of a child have commenced under this or any 509 Children 2022 No.
29 Other Act, no subsequent or other proceedings with respect to such maintenance may be commenced under any other Act w ithout leave of the Court.
Financial 113.
The Court may order the person against whom a provision for child.
maintenance order is made to make a financial provision for the child by (a) periodic payments; or (b) such lump sum payment, as the Court shall deem fit.
to to the person in whose favour the order is made, or any other person appointed by the Court.
Financial 114.
(1) The Court may make a maintenance order in provisions by respect of a child, including a child of the other parent who step-parents and presumptive has been accepted as a child of the family notwithstanding guardian.
the absence of an adoption order.
(2) Without prejudice to the generality of subsection of the (1), the Court shall consider all the circumstances case and be guided by the following considerations (a) the income or earn ing capacity, propert y and other financial resources which the part ies or any other person in whose favour the Court proposes to make an order, have or are likely to have in the immediate ftiture; (b) the f inancial needs, obligations, or responsibilities which each part y has or is likely to have in the immediate future; (c) the financial needs of the child and the childs current circumstances; the income, if any, derived from the property of (d) the child; (e) any physical or mental disabilities, illness or medical condition of the child; the manner in which the child is being or was (f) expected to be educated or trained; (g) 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 or she has assumed that responsibility, and the length of the period during which he has met that responsibility; 510 Children 2022 No.
29 (h) whether the respondent assumed responsibility for the maintenance of the child knowing that the child was not his child; (i) the liability of any other person to maintain the child; (j) the liability of that person to maintain other children.
Power to order 115.
(1) When a maintenance order is issued pursuant maintenance the order, monies to be paid to this Part, the Court may, at the time of making to person other that the or from time to time thereaft er, on being satisfied than the applicant.
person in whose favour the order is made (a) is not a fit person to receive any maintenance monies specified in the order in respect of a child; (b) has left the j urisdiction of the Court for an indefinite period, or is dead, incapacitated, 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 proper to receive and administer any maintenance monies the required to be paid under a maintenance order, or order person required to make a payment of the maintenance part of monies under this section to secure the whole or any f or the it by vesting the sums or any other propert y in trust child.
(2) Without prej udice to the generality of subsection (1), the Court may vaiy a maintenance order, on application in the in the prescribed form made by any person interested matter, directing that maintenance monies be paid to any other person or institution for the time being exercising in custody or control of a child to whom the order relates any case where (a) the child is transferred fr om one children institution to another; or (b) the court grants custody to another person either alone or jointly with another or others.
5 11 Children 2022 No.
29 Duration of 116.
(1) A maintenance order requiring financial fi nancial provisions.
provision to be made through periodic payments shall l ater commence on the date of the application, or on such date as the Court may direct.
(2) An order under subsection (1) shall remain in force until the childs eighteenth birthday subj ect to the provisions of section 111.
(3) The Court may review the order for periodic payment upon (a) the death of the person liable to make the periodic payment; (b) significant change of circumstances of either parent or guardian, provided that the change is not detrimental to the best interest of the child.
Interim orders of 117.
(1) A Court may make an interim maintenance maintenance.
and in so order, on the ex - part e application of any person doing, may dispense with any notice required to be given to the best any person, if the Court is satisfied that it is in interests of the child to do so.
(2) The interim order issued under subsection (1) shall be in force for such period as the Court may specify that pending hearing inter-part ies of an application in regard.
Other 118.
A Court may make an order and give directions maintenance provisions.
regarding any aspect of the maintenance of a ehild including matters relating to the provision of edueation, inth at medical care, housing and clothing for the child; and the child.
behalf, make an order for fi nancial provisions for Power to impose the 119.
In relation to an order made under section 116, conditions or to Court may vary order.
(a) impose such conditions as the Court deems fi t; (b) vary, modify or discharge any order made under section 116 with respect to making of any fi nancial provision, by altering the schedule of payments or by increasing or diminishing the amount payable; oror (c) temporari ly suspend ,the order as to the whole any part of the money paid and subsequently revive it wholly or in part as the Court deems fi t.
5 12 2022 Children No.
29 Power to vary a 120.
Where the parents, guardians or custodians of maintenance child enter into an agreement, whether orally or in writing, agreements.
may, in respect of the maintenance of the child, the Court the upon application, vary the terms of the agreement if Court is satisfied that such variation is reasonable and in the best interest of the child.
Enforcement of 121.
( 1) Any person, including a child in whose orders for favour a maintenance order has been made pursuant to maintenance or contribution.
of section 111, may apply to the Court for the enforcement the order and recoveiy of any sums due and payable thereunder if (a) the person against whom the maintenance order was made has failed to comply with any provision contained in the order; or (b) the person against whom the order was made has defaulted in any payment specified under the order.
(2) Unless otherwise directed by the Court , the respondent shall be served with the notice of proceedings ona under this section and may be summoned or airested waiTant issued by the Court.
(3) Prior to the making of an order under this section, the Court may hold an enquiiy as to the means of the may respondent who shall be in attendance, and the Court direct that by (a) enquiries be made as to the respondents means such person as the Court may direct; be (b) the respondents income, assets and liabilities searched to establish such infomi ation 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 may direct, be availed to the Court.
(4) Where the Court is satisfied that the respondent of any has willflilly neglected or failed to make payment financial provision under a maintenance or contribution order, the Court may (a) order that any air ears in respect of any maintenance monies or contribution monies as the 513 Children 2022 No.
29 case may be, be paid fort hwith in lumpsum or in instalments within such period as the Court may specify; (b) order the remission of the amears: Provided that the Court shall not make an order under this section without prior notice to the child, the person or institution, as the case may be, in favour of whom the maintenance or contribution order has been made or without allowing them a reasonable opportunity to make representations in that regard; (c) issue a warrant for distress on the respondents property fort hwith, or postpone the issue of the warrant until such time as the Court may direct, or on such conditions as the Court may deem fi t, and order the attachment of the respondents earnings, including any pension payable to the defaulter, if the Court is sati sfi ed that (i) failure to make payment was due to the willful refusal or neglect of the respondent; and (ii) the respondent is gainfully employed, or is engaged in some profi table business enterprise or under-taking or owns proper-ty out of which he derives an income capable of satisfying the order of the Court : Provided that the Court shall not, unless special circumstances exist, make an order for the attachment of the respondents earn ings in an amount which shall exceed more than foi-ty-fi ve per cent 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, authorize such person, as the Court may deem fi t, 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; f or (e) subj ect to the rights of a bona fi de purchaser value without notice, set aside any disposition of 5 14 Children 2022 No.
29 any property belonging to the respondent from which any income is receivable, and the Court may, on application made in that regard, make orders for the re-sale of the property to any person and direct that the proceeds of the sale be applied in the settlement of any arrears of maintenance monies and to the payment of future maintenance monies payable under the order; or (f) restrain by way of an injunction the disposition, wastage or damage of any property belonging to the respondent.
(5) The Court shall not make an order under is subsection (4) (c), (d), (e) or (f), unless the Court satisfied that (a) the respondent has willfully 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 the (b) the respondent, with intent to obstruct or delay 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; (ii) is about to remove the whole or any part of his property from the local limits of the j urisdiction of the Court; or (iii) is about to abscond or leave the local limits of the Courts jurisdiction.
(6) The Court may issue a warrant committing the respondent to imprisonment for a term not exceeding thirty days if the Court is satisfied on evidence that (a) the respondent has persistently and willfully refused or neglected to make payment of all or any part of the monies ordered to be paid under a maintenance or contribution order w ithout reasonable cause; L.
(b) the respondent is present at the hearing; 515 Children 2022 No.
29 (c) an order for att achment of the respondents income would not be appropriate; or is (d) it has enquired into the cause of the default and satisfied t hat such default w as due to the respondents willful refusal or neglect.
(7) The issue of a warrant under this section may be but, if postponed on such terms as the Court may think fi t postponed, it may not be issued without further notice being given to the defaulter.
(8) The Court shall have power to vary, modify or discharge any order made under this section.
PART X GUARDIANSHIP Appointment of 122.
(1) In this Part, guardian.
guardian means a person appointed by will or deed by a parent of a child or by an order of Court to assume the parental responsibility over a child on the death of surviving parent of the child either alone or jointly with the of this parent of the child in accordance with the provisions Act; (2) A guardian may be appointed on application'in the in prescribed form in respect of any child who is resident isa Kenya whether or not the child was bom in Kenya or Kenyan Citizen.
(3) A guardian appointed under this Act shall be a Kenyan citizen.
(4) A guardian who is not the father or mother of a of the child shall not remove the child from the jurisdiction Court, Republic of Kenya without obtaining an order of the and such leave shall be granted only in exceptional circumstances and in accordance with subsection (6).
(5) Where leave is granted under this section, the as it Court shall impose such conditions and restrictions shall consider appropriate having regard to the best i nterests of the child.
(6) Notwithstanding subsections (4) and (5) the court ' guardian shall be required to produce the child to upon return.
(7) A guardian may be appointed in respect of the person or estate of the child or both.
5 16 Children 2022 No.
29 (8) Where a guardian is appointed only in respect of shall not be the estate to which the child is a beneficiary, it actual necessary for that purpose for the guardian to have custody of the child.
(9) Without prejudice to subsections (6) and (7), the shall guardian appointed in respect of the estate of a child have (a) the power and responsibility to administer the estate of the child and, in particular, to receive, recover and invest, the property of the child in his own name in trust for, and for the benefit of, the child; in (b) the power to create a Trust Fund for the child respect to any estate of the child; (c) the duty to take all reasonable steps to safeguard the estate of the child from loss or damage; (d) the duty to prepare and submit accounts and inventory in respect of the childs estate on every amiiversary of the date of his or her appointment as such to (i) the parent or custodian of the child; (ii) the Secretary; (iii) the Court; and (iv) such other person as the Court may direct; or (e) the duty to produce any account or inventory in respect of the childs estate when required to do so by the Court.
Rights of 123.
(1) On the death of the father of a child, the surviving parent child mother, if surviving, shall be the guardian of the as to guardianship either alone or jointly with the guardian appointed by the and power of father if any, but if no guardian has been appointed by the dead or father, or the guardian appointed by the father is act refuses to act, the Court may appoint a guardian to jointly with the mother.
if (2) On the death of the mother of a child, the father, alone or surviving, shall be the guardian of the child either jointly with the guardian, if any, appointed by the mother, or if such guardian is dead or refuses to act, the Court may appoint a guardian to aet jointly with the father.
5 17 Children 2022 No.
29 (3) Where a surviving parent is separated from the may, on deceased parent before his or her death, the Court the application by any other person, detemiine whether surviving parent is fit to act as guardian of the child.
124.
(1) Either parent of a child may, by will or deed, aft er that guardian, appoint any person to be the guardian of the child parents death.
(2) The guardian of a child may, by will or deed, the appoint another person to act in his or her place as death.
guardian of the child in the event of such guardians (3) Any appointment made under subsection (1) or (2) shall not take effect unless is (a) in the case of an appointment by deed, the deed dated and is signed by the person making the appointment in the presence of two competent witnesses; (b) in the case of appointment made by a written will, the will is made, executed and attested in accordance with the law relating to testamentary i nstruments.
(4) A guardian appointed under this section shall act the life jointly with the surviving parent of the child during time of the parent, unless the parent objects to the guardians appointment.
(5) If the surviving parent objects to such joint that guardianship, or if the guardian appointed considers the the parent is unfi t to have legal custody of the child, and guardian or parent of the child may apply to the Court, the Court may (a) decline to make an order confirming the testamentary appointment of the guardian, in which case the surviving parent shall be the sole guardian; act (b) make an order directing that the guardian shall j ointly with the suiwiving parent; or (c) make an order appointing a relative of the child other person willing to act as guardian of the child, to act jointly with the parent or guardian, or both such parent and guardian; or 518 Children 2022 No.
29 (d) make an order that the guardian shall be the sole guardian of the child, in which case it shall clarify issues relating to (i) custody of the child and the rights of access by the parent and relatives, having regard to the welfare of the child as it may think fit; and (ii) payment of a fi nancial provision by the parent towards the maintenance of the child having regard to the means of the parent, as the Court may consider reasonable: to Provided that the Court shall not appoint a person of the be sole guardian for the child if he is not a relative such child, unless exceptional circumstances exist to justify appointment having regard to the welfare and best interest of the child.
(6) Where guardians are appointed by both parents, the the guardians so appointed shall, aft er the death of the surviving parent, have joint responsibility towards child.
the (7) If a guardian is appointed to act jointly with the surviving parent in'"accordance with subsection (5), death of guardian shall continue to act as guardian aft er the the parent: a Provided that if the surviving parent has appointed act ^ ardian, the guardian appointed by the Court shall jointly with the guardian appointed by the parent.
(8) Any person, not being a parent of a child, in whose of a favour an existing custody or residence order in respect has child has been made, or to whom the care of a child this been entrusted by virtue of being a fi t person under a child or Act, shall act j ointly with the surviving parent of with his guardian: Provided that the surviving parent or guardian shall effect be entitled to apply to the Court for an order giving to a different arrangement, with regard to the child.
Appointment of 125.
(1) In addition to the powers of the Court to guardian by the appoint a guardian under section 122, the Court may Court.
the appoint a guardian on application by any person in prescribed form in any of the following circumstances (a) where the childs parents are deceased or cannot; be found, and the child has no guardian or other 519 Children 2022 No.
29 person having parental responsibility over the child; or (b) where the child is one to whom section 121 applies.
(2) The Chief Justice shall make rules to guide the procedures for guardianship.
Customary 126.
(1).
In addition to the powers of the Court to guardianship.
appoint a guardian under section 122, the Court may appoint a guardian on application by any person in a accordance with the customs, culture or tradition of specific community in the manner prescribed (a) where the childs parents are deceased or cannot be found, and the child has no guardian or other person having parental responsibility over the child; or (b) where the child is one to whom section 121 applies.
(2) The Chief Justice shall make rules to guide the procedures for matters relating to customary guardianship.
Extension of 127.
(1) The appointment of a guardian shall expire appointment of unless upon the child attaining the age of eighteen years, guardian beyond childs eighteenth acourt exceptional circumstances exist that would require birthday.
to make an order that appointment be extended.
(2) The exceptional circumstances referred to in or subsection (1) are that the child suffers from a mental him physical disability or from an illness that will render own incapable of maintaining himself, or of managing his -or affairs and his property without assistance of a guardian ! ,] oA aft er his eighteenth birthday or such other exceptional ' d.
iw may circumstances with regard to the child as the court this deem proper to warrant the making of an order under section.
(3) Where an order is made under subsection (1), it and shall be made prior to the childs eighteenth birthday may be made on an application by (a) the child; (b) the parent or guardian of the child; 520 Children 2022 No.
29 (c) a relative of the child; or (d) the Secretary: Provided that no order shall be made without the consent, consent of the child, if he is capable of giving such be and of the guardian whose appointment is required to 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 earn ed out, with imposing such other conditions that must be complied and with such incidental, supplemental or consequential provisions as the court thinks fit.
(5) A court shall have power to vary, modify or revoke any order made under this section after the childs eighteenth birt hday, on the application of any of the marries persons named in subsection (3), or where the child aft er his eighteenth birt hday, his spouse.
Revocation or 128.
(1) The appointment of a guardian under section disclaimer of 122 revokes any earlier appointment including an appointment.
agreement made in an uni'evoked will or codicil made by it is the same person in respect of the same child, unless in the clear, whether as the result of an express provision the later appointment or by necessaiy implication, that additional purpose of the latter appointment is to appoint an guardian.
(2) The appointment of a guardian under section 122, including one made in an um-evoked will or codicil, may be revoked by the person who made it by a dated instrument duly signed (a) by the person making the appointment; or and (b) in the presence of the guardians, two witnesses each of whom shall attest to the signature at the direction of the person making the appointment.
(3) An appointment under section 125 shall stand revoked if the will or codicil under which it is made is revoked.
(4) A person who is appointed a guardian under sections 122 or 123 may disclaim the appointment by and instrument in writing made within a reasonable time signed by the person as soon as it is reasonably practicable aft er knowing that the appointment has taken effect.
521 Children 2022 No.
29 take (5) A disclaimer made under this section shall not delivered effect unless it is made in the prescribed fonn and are in accordance with regulations and, where regulations which made by the Chief Justice prescribing the manner in shall such disclaimer shall be recorded, no such disclaimer m ann er.
have effect unless it is recorded in the prescribed (6) The appointment of a guardian may be tenninated in the at any time by an order of the Court on application prescribed form made by (a) any parent or guardian of the child; (b) the child to whom the appointment relates; (c) a relative of the child; or (d) a person acting on behalf and in the best interest of a child.
(7) Where a Court revokes an appointment of a guardian, the Court shall specify who shall have guardianship or legal custody of the child.
Dispute between 129.
(1) Where two or more persons acting as joint euardians.
and a guardians to a child, or where the surviving parent guardian acting jointly, fail to agree on any matter apply concern ing the welfare of the child, any of them may to the Court for directions in that regard, and the Court may as the make such orders regarding the matters in difference Court may deem proper.
a (2) Any relative of the child, the child, the Secretaiy , a child, a person acting on behalf and in the best interest of ora person who has parental responsibility over the child a person who has been authorized to act jointly with of the guardian under sections 122 and 123 may, with Ipave of Court , apply to the Court for directions or determination fromor any matter affecting the welfare of the child arising connected with the exercise of the guardians parental responsibility, and the Court may make such order proper.
regarding the matters in contention as it may deem Powers of 130.
A guardian appointed under section 122 and 126 guardian.
the shall have the same powers over the child, or over Cap.
160 or w ill or estate of a child, as a guardian appointed by deed othem ise under the L aw of Succession A ct.
Neglect or 131.
Where a guardian of the estate of a child, whether misapplication of of the or not that guardian is also a guardian of the person assets by guardian of a child s estate.
child 522 Children 2022 No.
29 a (a) neglects to recover or safeguard the estate of child, or of (b) misplaces any asset forming part of the estate the child, or (c) subjects the estate to loss or damage, the guardian shall be liable to make good any loss or damage thereby occasioned, whether or not he is guilty of an offence on that account.
Offence by 132.
(1) Any guardian of the estate of a child who guardians of a childs estate.
(a) willfully or recklessly neglects to receive or safeguard any asset forming part of the estate, misapplies any such asset or subjects any such asset to loss, waste or damage; (b) willfully fails to produce to the Court, or the parent or guardian of the child any account or inventory required by the provisions of section 121; or (c) willfully or recklessly produces any such inventory or account which is false or misleading in any material particular, commits an offence and shall, on conviction, be liable ortoa to imprisonment for a term not exceeding five years fine not exceeding five million shillings, or to both.
(2) In addition to the penal sanctions prescribed in re st ore subsection (1), the Court may order such person to by and surrender the estate to an administrator appointed child.
the Court for proper administration on behalf of the (3) A guardian who misappropriates or renders the bound to property of a child liable to loss or waste shall be restore the value of such estate to the child or to the to administrator, if any, appointed by the Court pursuant subsection (2).
Power of Chief 133.
The Chief Justice shall make regulations to give Justice to m ake the effect to this Part, including rules of procedure directing Rules.
Part.
manner in which applications may be made under this PART XI JUDICIAL INTERVENTION FOR THE CARE AND PROTECTION OF CHILDREN Power of Court to 134.
(1) The Court may make any order under this Act make orders in in any certain or any other written law for the protection of a child pro ceedings.
proceedings concerning the welfare and upbringing of .the 523 Children 2022 No.
29 child.
(2) The 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 Secretary; (e) an authorised officer: and (f) a person acting on behalf and in the best interest of child; Provided that a qualified person may apply for more not than one order at the same time, but the Court shall make more than one order in determination of t he application of (i) if to do so would be detrimental to the interest the child; or the (ii) if the desired effect of the orders sought by applicant may be achieved by making only one order.
(3) The Court may make an order under this Part (a) giving directions on how the order shall be carried out; (b) imposing the conditions to be eomplied with in carrying out the Order; (c) specifying the duration for which the order shall remain in force; and.
' 1 (d) attaching such supplementary or consequential provisions as the Court may think fit.
be (4) An application for an order under this Part may oras made either orally or in writing whether separately part of any proceedings under this Act.
an (5) Except as is otherwise provided under this Act, order made under this Part shall cease to have effect on the child attaining the age of eighteen years.
the (6) Nothing in this section shall limit the power of Court to make an order in determination of an oral 524 Children 2022 No.
29 application made under this Part.
Orders which 135.
(1) The Court may from time to time where Court may make.
appropriate make any of the following 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 of w hom a shall not be made in relation to a child in respect to the care order has been made under this Part , but access made child concerned may be obtained upon an application under section 149; with a (b) a residence order, requiring a child to reside person named in the order and detemiining 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 i nf licted or t hr eatened toi nf li ct vi ol ence on a child, whether or not that person permanently resides w ith the child (i) to depart from the home in which the child is residing; (ii) to restrain the person from entering the home or any specified part of the home or from a specified area in which the home is located; or (iii) 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 or the childs family 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) af amily assistance order requiring a person appointed by the Court to provide such advice, counselling and guidance to a child, his parents or 525 Children 2022 No.
29 custodian or guardians, the childs relatives, or any person Avho 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 provisional child care order requiring placement of a child for provisional care by any fi t person or institution pending further orders of the court; is (h) a production order requiring any fi t person who harbouring, concealing or otherwise unlawfully detaining a child, or who intends to remove a child from Kenya or local limits of the j urisdiction of the Court (i) to disclose any infonnation regarding the whereabouts of the child; or (ii) to produce the child before the Court and restraining the person from removing the child from the jurisdiction of the Court for such period as the Court may specify; of a (i) a protection order directing care and protection child involved in drug abuse or who has been a victim of ideological radicalization or criminal gangs; or (j) a non-interference order preventing any fi t person to from interfering with the life of a child in relation any matter, including the education of the child.
(2) Without prejudice to the generality of subsection (1) (h), the Court may make a production order requiring any children institution at which a child has been accommodated for a period exceeding the time limited by to an order of the Court or the provisions of this Act produce the child before the Court to facilitate the making t er ms of such other order as the Court may deem fi t on such as the Court may direct.
Supervision order.
on 136.
(1) The Court may, either of its own motion or care application by any person for any order directing the and protection of a child, make an order, in this Act under referred to as a supervision order, placing the child the supervision of a childrens offi cer or an authorized 526 2022 Children No.
29 officer.
(2) The Court may make a supervision order under in the subsection (1), notwithstanding that the child remains or care and custody of his or her parent, guardian, custodian being any other person with whom the child is for the time resident.
shall (3) Prior to making a supervision order, the Court direct that- (a) such enquiries or investigations as may be prescribed in the rules made under this Part be undertaken and, in particular, that a welfare report or other report be lodged with the Court; and (b) written notice of the proceedings be given to the parent, guardian, custodian or any other person with whom the child for the time being resides.
a (4) A supervision order shall not remain in force for period exceeding twelve months.
(5) Without prejudice to the generality of subsection v ary , (3), the Court may, on application of the supervisor, (1) discharge, or extend the order given under subsection for such further period as the Court may deem necessary, having regard to the best interests of the child.
(6) The Court shall not make an order extending a of supervision order made under this section unless notice or the relevant application has been given to the parents parental guardians of the child, or any other person having be heard responsibility in respect of the child, and who may in the proceedings.
Power to m ake 137.
(1) The Court may make an interim supervision.
.
.
.
.
.
.
.
.
i nten m any order, either of its own motion or on application by supervision order.
person (a) where the Court has reason to believe that the living conditions of the child concerned require that an interim order be made pending the submission of a welfare report prepared in accordance with section 136(3); (b) on adj ourn ment of an application for a supervision order; or (c) upon the making of orders for the assessment of 527 2022 Children No.
29 the child under section 135.
not (2) An interim order made under this section shall unless remain in force for a period exceeding two months, the the Court extends the order for such other period as child.
Court considers necessary in the best interest of the Discharge of 138.
(1) A Court which has made a supervision order supervision order.
the or an interim supeiwision order may vary or discharge order on application by (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; (c) the supervisor; (d) any person with whom the child for the time being resides; or of (e) a person acting on behalf and in the best interest child (2) Any order made under this section shall be of automatically discharged when the child in respect whom it is made attains the age of eighteen years.
Power of arrest.
139.
Where a Court makes an order pursuant to ap ow er section 135(1) (c), (d) or (g), the Court may attach order of arrest to the order, and the person named in the shall be liable to arrest if he or she contravenes any the stipulation or condition contained in the order while order remains in force.
Penalty.
140.
Any person who contravenes an order made under section 135, or who obstructs or unlawfully interferes of his with a person appointed by the Court in the execution an duties under an order made under that section, commits f or a offence and is liable on conviction to imprisonment term not exceeding twelve months or to a fine not exceeding two million shillings, or to both.
Review, etc., of 141.
The Court may order.
(a) fr om time to time review, vary, suspend or discharge any order made under this Part; or (b) revive an order after the order has been suspended or discharged.
PART XII CHILDREN IN NEED OF CARE AND PROTECTION 528 2022 Children No.
29 Interpretation.
142.
For the purpose of this Part a child in need of care and protection means a child who lives in difficult circumstances and needs to be protected from all kinds of neglect, abuse or exploitation; a child living on or off the streets means a child w ho- (a) because of abuse, neglect, poverty, community upheaval or any other reason, has left his or her home, family or community and lives, begs or works on the streets; (b) because of inadequate care, begs or works on the streets but returns home at night.
Jurisdiction of the 143.
A Childrens Court shall have jurisdiction to Court.
make an order or render Judgment under this Part notwithstanding that any act, matter, thing or circumstances or arise giving rise to such order or judgment did not occur Court.
within the local limits of the j urisdiction of the When a child is in of 144.
For the puiposes of this Act, a child in need need of care and protection.
care and protection includes a child (a) who is an orphan and has no guardian; (b) who has been abandoned by their parent or guardian; (c) who is found begging, or receiving alms; who is lost and found and whose parent or (d) guardian cannot be found; (e) whose parent or guardian has been detained, held in custody or imprisoned or is in remand, (f) who is in the company of a parent or guardian who is detained, held in custody, in prison or in remand; (g) whose parent or guardian does not, or is unable or unfit to exercise proper care and guardianship of the child; (h) whose parents are unable to provide to him or her proper care and attention by reason of being intensely engaged in litigation over custody and maintenance or other related family dispute 529 Children 2022 No.
29 prejudicial to the wellbeing of the child; (i) whose parent or guardian is below eighteen years of age; (j) who is truant or is falling into bad associations; (k) who is being denied education; (1) who has been or is likely to be subjected to female genital mutilation, intersex genital mutilation ,child marriage, or to other customs and practices prejudicial to the child's life, education or health; (m) who has been subj ected to forced male circumcision; (n) whose life is in danger or whose security is thi-eatened by a member of the family; (o) who is a victim of human trafficking; (p) who is kept in any premises which, in the opinion of an authorized offi cer or a medical officer, are overcrowded, unhygienic or dangerous; (q) who is exposed to any fonn of violence; (r) who is pregnant or who is responsible for the pregnancy of another child; (s) who is mentally ill, tenninally ill, or whose parent or guardian is mentally ill or tera iinally ill; is (t) who has a disability or other special needs and unlawfully confined, concealed or ill-treated; (u) who has been sexually abused or is likely to be exposed to sexual abuse and exploitation, including prostitution and porn ography; (v) who engages in sexual conduct of any kind; (w) who is engaged in any work likely to hami his or her health, education, mental or moral development; (x) who is displaced as a consequence of war, civil a disturbances or natural disasters, or is othei-wise refugee; (y) who is exposed to any circumstances likely to interfere with his or her physical, mental.
530 Children 2022 No.
29 psychological and social development; be (z) who is intersex and is subj ected to or likely to subjected to discriminatory treatment or abuse; (aa) who has had any of the offenees mentioned in the T hird Schedule to this A ct comm itted against him or her, or if he or she 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 convieted of such an offence against a child; (bb) who is in conflict with the law or is a witness to, or a victim of, a crime; (cc) who is engaged in the use of, or traffieking of drugs or any other substances that may be declared hannflil by the Cabinet Seeretary responsible for matters relating to health; (dd) who heads or l ives ina ehild-headed household; (ee) who lives and works on the streets; (ff) who for any other reason, is, in the opinion of an authorized officer, vulnerable to harm or abuse; (gg) who is Human Immunodeficiency Virus (HIV) positive or has Aequired Immunodeficiency Syndrome (AIDS), and is subj ected to discriminatoiy treatment or abuse, and whose parents are unable to exercise proper care of the child; (hh) who is recruited or is at risk of being reeruited into unlawful gangs, or is exposed to or in imminent danger of being exposed to radicalization or other repugnant teachings (ii) who is suffering from a terminal, debilitating or ehronic illness and whose parents are unable to exercise proper care of the child; or (jj ) who is in need of medical treatment but denied aecess thereto by the parents or guardians on religious grounds.
in 145.
(1) Any person who has reasonable cause to Proceedingsi may indeed of believe that a child is in need of care and proteetion who shall .and protection.
report the matter to the nearest authorised officer, 531 Children 2022 No.
29 take such steps as may be necessary for securmg a Court order for the care and protection of the child in a place of this A ct.
safety or other alternative care in accordance with (2) An authorized officer or any other person who has reasonable cause to believe that a child is in need of care and, at and protection shall take the child into safe custody of safety the earliest opportunity, place the child in a place conflict in facilities other than those in w hich children in Court for with the law are held, pending presentation to the appropriate orders.
(3) The Secretary shall monitor and ascertain whether the facilities in w hich the children are comm itted to in this section are suitably equipped to ensure the highest attainable standards of hygiene, sanitation and comfort, having regard to the special needs of the children.
(4) Any child in need of care and protection may take aw ay a refuge in a place of safety, and no person shall turn of child in need of care and protection fr om any place safety.
(5) Where an application is made to a childrens Court ina for an order under section 150, and the child is not to bring place of safety, the Court may direct the applicant of the child before the Court, whereupon the provisions enable the subsection (3) of that section shall apply so as to Court to make an interim order for the temporary f or his or accommodation of the child in a place of safety or her temporary committal to the care of a fi t person.
(6) Where a Court makes an order under subsection (5), the Court may make such other orders as it considers necessary for and (a) the establishment of contact between the child his parent, or between the child and any person who has parental responsibility over the child; or (b) the enforcement of the order.
an (7) Where a child is taken to a place of safety by to the authorised officer or other person without reference Court, the parent or guardian or any person who has apply to parental responsibility in respect of the child may place of the Secretary for the release of the child fr om the safety into his or her care: Provided: that if the Secretary refuses an application 532 Children 2022 No.
29 under this subsection, the Secretary shall notify the f or the applicant in writing of the decision and the reasons refi isal.
(8) An applicant who is aggrieved by the decision of Court the Secretary under subsection (7) may apply to the for an order discharging the child from the place of safety concerned and placing him or her into the care of the applicant.
a (9) Where a child is taken or ordered to be taken to who place of safety in accordance with this Act, the person takes or brings the child before the Court shall (a) l odge with the Court a statement specifying the grounds on which the child is brought before the Court; and (b) give reasonable notice requiring the childs parent or guardian, or such other person who has parental responsibility over the child, to attend at the Court before which the child is to appear.
(10) Where any person i ntends to make any application under section 151, the person shall forthwith and notify the Secretary or his representative of the name the address of the child and the day and hour when, and nature of the grounds on which, the child is to be brought before the Court.
the (11) On receiving the notice under subsection (10), a report Secretary shall investigate and present to the Court on the child containing particulars as to the home, circumstances, age, state of health, character and general antecedents of the child, or such other information as m ay be necessary in assisting the Court in making appropriate orders under this A ct.
(12) When it appears to an officer of a county that government entity or a charitable childrens institution of care and a child in its local j urisdiction is in urgent need protection, and that its intervention is necessary , the county shall government entity or charitable childrens institution receive such child into its care without the need to immediately bring the child before a Court: Provided that (a) the county government entity or charitable childrens institution shall notify the Secretary within seven days of receiving the child into its 533 Children 2022 No.
29 care; (b) the child shall be brought before a Court within seven days; (c) the county govern ment entity or charitable childrens institution shall submit a monthly report to the Secretary of all children received and accommodated in their respective institutions; (d) the Secretary or an authorized officer, county government entity or charitable childrens institution investigates all cases involving children who are taken under their care and protection; (e) the county govern ment entity or charitable childrens institution shall not retain the child in its care if the parent or guardian of the child seeks to assume the care of the child; (f) the county govennnent entity or charitable childrens institution shall, when it appears to be in the interests of the child, endeavor 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 shall, if possible, be of the same religion, race, tribe or clan as the child.
(13) The Council shall prescribe guidelines for the (d).
carrying out of investigations under subsection (12) (14) A county government entity or charitable itsc ar e childrens institution which receives a child into to under the provisions of this section shall be entitled his recover the cost of maintenance of such child from over parent, guardian or the person who has responsibility the child.
146.
(1) If it appears to an authorised officer Healthcare, in need exercising powers under section 144 that a child is child to a of healthcare, the officer shall forthwith take the shall registered health institution, and the health institution provide the appropriate treatment, care and necessary hospital accommodation for the child.
(2) Where a child is accommodated in any health who institution for in-patient care, the authorised officer 534 Children 2022 No.
29 places the child into healthcare shall forthwith notify (a) the childs parent or guardian; (b) any other person who has parental responsibility over the child; or (c) the Secretary or his representative.
(3) Where it appears to a medical practitioner or administrator of a health care i nstitution or medical the Fourth practitioner that any of the offences speeified in Schedule to this Aet have been committed against a child, the medical practitioner or administrator shall forthwith take such measures as may be neeessary to reeord and of the preserve any information with regard to the condition child in the form prescribed in regulations.
(4) The medieal practitioner or administrator referred offence to in subsection (3) shall report any finding of an against a child to a children officer or other authorised at officer in the local jurisdiction of the health facility of sueh which the child is attended within forty-eight hours fi nding.
(5) Any expenses incurred in connection with the medieal treatment or hospital accommodation of a child funds.
under this seetion shall be defrayed out of publie Determination as is 147.
(1) If a child in need of eare and protection to childs home.
the brought before a Court, and the Court determines that etc.
child has a home in, or has been found in the loeal limits of, a particular county government entity concerned with that the matters relating to children, the Courts shall order child be aeeommodated in the faeility operated by such entity.
(2) Without prejudice to the generality of subsection f or (1), the Court may remit the case involving the child detennination by the Court within whose local jurisdiction the child has a home or w as found.
Parent or guardian is 148.
(1) If a ehild in need of care and protection to be heard in any brought before the Court on an application by any person applieation.
other for orders in that regard, the parent, guardian or has the person having parental responsibility over the child, right to be heard and may participate in the proeeedings.
1.
1 (2) If the parent or guardian of a child to whom 535 Children 2022 No.
29 of the subsection (1) relates cannot be traced, any relative participate child may, v^^ith leave of the Court, be heard and in the proceedings referred to in subsection (1).
(3) For the purposes of any proceedings under this of Part, the Court may summon and direct the attendance any other the parent, guardian or relative of a child, or of person having parental responsibility over the child.
Power of 149.
The Director of Public Prosecutions may Secretary to take authorise the Secretary at any stage in the proceedings over application.
making under this Act, whether before, during or aft er the of of any application, to take over and assume the conduct any application or proceedings in respect of a child: Provided that the D irector of Public Prosecutions shall the not terminate any proceedings which he has authorised Secretary to assume control under this section without l eave of the Court.
150.
(1) A Court before which any child in need of [rneedofLre care and protection is brought may require an authorised and protection, officer or any other person to give a report or professional the advice on any aspect of the proceedings relating to manner in which the child should be dealt with.
it (2) If a Court is satisfied that a child brought before is in need of care and protection, the Court may (a) order that the child be returned to his or her parent or guardian, or to the person having parental responsibility over the child; (b) order the parent or guardian of the child, or other person having parental responsibility over the child, to execute a bond with or without surety to exercise proper care and guardianship; , I ) ! : (c) if the Court is satisfied that it is in the best .yl il.''iy interests of the child, commit such child to a rehabilitation school suitable to the needs and interests of the child; to (d) without making any other order, or in addition making an order under this section, make an order for guardianship under Part X; (e) if the child is a victim of armed conflict, civil disturbance or natural disaster, make an order requiring the Secretary to take such steps as may be necessary to ensure that the child is provided 536 Children 2022 No.
29 with appropriate care and protection; the (f) in any other case, make an order directing that child be reunited with his or her parent or guardian; (g) if the child has a disability or other special needs, make an order directing that the Secretary takes such steps as are necessary to meet the special needs of the child; (h) if the child is subj ected to early mamage, make an order declaring that such mamage is a nullity and requiring the child to be placed under the care of af it person, or that the child be accommodated in a place of safety; where it is show n to the satisfaction of the Court (i) that the child has been engaged in dmg abuse, make an order directing that the child be committed to a drug rehabilitation center for treatment, or that t he child be accorded professional counselling; G) in any case where (i) a child has accompanied the mother who is imprisoned or detained in lawful custody or remand; (ii) a child or children have been left unattended in consequence of their mothers or fathers imprisonment or detention inl awful custody; or (iii) the child or children accompanying the mother to prison or other place of detention have attained the age of four years, make an order directing that the child or children be placed under the care of a fit person, or that the child or children be accommodated in a plaee of safety; or (k) make any other order which the Court may think fit, and in the best interest of the child.
(3) In considering the person with whom the child member of shall be placed, the court shall give priority to a the childs immediate family.
(4) A parent or guardian who is ordered to exercise 537 Children 2022 No.
29 proper care and guardianship of a child under subsection to seek the (2)(b) shall, in addition to that order, be required assistance of a professional counsellor.
(5) The order refen-ed to in subsection (3) shall with include a family assistance order made in accordance section 135(1) (e).
(6) The Court may make interim orders on such tenns child be as the Court may direct, including an order that the f or accommodated in a place of safety, pending final orders the care and protection of a child.
(7) An interim order under subsection (6) shall not remain in force for a period exceeding fourteen days: Provided that the Court shall have power to extend the such orders from time to time and on such tenns as Court may direct.
(8) Without prejudice to the generality of subsection int he (5), the Court may order that a child shall remain custody of a county govern ment entity, an appointed a authorised officer, a charitable childrens institution, place of safety or a fit person, until the age of eighteen years, or such lesser age as the Court may direct.
own (9) The Court may from time to time, either of its v ary or motion or on the application of any person, review, revoke any order made under this section.
151.
(1) Where a child is, by an order of the Court person, made under this Part, removed from the care of any maintenance of children.
any and that person is entitled under any tmst to receive the sum of money in respect of the childs maintenance, Court may order the whole or any part of the sums payable or to any under the tmst to be paid to an authorised officer control other person or facility entmsted with the care and in su ch of the child, to be applied for his or her benefit manner as the Court may direct.
(2) In making the order referred to in subsection (1), the Court shall have regard to the tenns of the tmst.
(3) Any person who fails to comply with an order of the Court made under subsection (1) commits an offence f or a and shall, on conviction, be liable to imprisonment teiTn not exceeding six months or to a fine not exceeding two million shillings, or to both.
(4) In addition to the penal sanctions prescribed in 538 Children 2022 No.
29 subsection (3), the Court may order the seizure and all surrender to the Court or to any specified person of direct the funds or property held in trust for the child, and f or manner in which such fund or propei-ty may be applied the benefit of the child.
Penalty for cruelty 152.
( 1) Any person who, having parental to and neglect of and children.
responsibility, custody, charge or care of any child, who (a) willfully assaults, ill-treats, abandons, or exposes, in any manner l ikely to cause the child unnecessary suffering or i nj ury to health, including injury or loss of sight, hearing, limb or organ of the body, or any mental illness; or (b) by any act or omission, knowingly or willfully 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 toa imprisonment for a term not exceeding ten years or or to fi ne not exceeding fi ve hundred thousand shillings, both.
(2) If the Court is of the opinion that the acts or or omissions specified in subsection (1) are of a serious be aggravated nature, the Court may order that the person the Cap.
63.
charged and dealt with in criminal proceedings under No.
12 of 20 17.
Penal Code or the Prevention of Torture Act, 2017.
(3) For the pu^ oses of this section, a person having a child parental responsibility, custody, charge or cafe of shall be deemed to have neglected such child in a manner concerned likely to cause injury to his health if the person has failed to provide adequate food, clothing, education, immunisation, shelter or medical care.
(4) The Court before which an application is made for protection any orders relating to a child in need of care and relating to has jurisdiction to entert ain criminal proceedings a charge against any person in respect of an offence committed under this section.
(5) It shall not be a defence to a charge under this section that a (a) the suffering or actual bodily harm inflicted on child was substantially contributed to by a person 539 Children 2022 No.
29 other than the accused; or the (b) the child died as a result of causes other than acts of the accused specified in subsection (1).
Care order and 153.
(1) In this section care order means an order grounds thereof.
toa entrusting the care, control and custody of the child of the person other than the parent, guardian or custodian child, 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 the (a) all possible alternative methods for assisting child have been unsuccessflil, and that it is in the best interests of the child to make the order; (b) the child concern ed is suffering or is likely to suffer substantial harm, and that the harm, or probability of harn i, is attributed to (i) the care given, or which is likely to be given, to the child if the order were not made, such care not being of the nature that is reasonably expected of a parent; or (ii) the child being beyond the control of his or her 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 or she is for the time being resident.
(3) Where a Court makes a care order or an interim in care order in respect of any child, the Court may include as the the order such conditions, restrictions or directions Court deems fit relating to (a) the enforcement of the order by any person; or (b) the conduct of the child or any person named in the order.
as (4) In making the care order, the Court shall, as far care of a is reasonably practicable, entrust the child to the on, the person who professes, or to an institution founded 540 Children 2022 No.
29 childs religious faith.
as (5) Where a child has a disability, the Court shall, of the child far as is reasonably practicable, entrust the care and to a person or institution that is suitably designed equipped to cater for the special needs of the child.
be (6) Every care order made under this section shall in writing, and shall disclose the childs age and religious faith, and such order may be made in the childs absence whose care with the consent of the person or institution into the child has been entrusted.
(7) A person who is aggrieved by a care order may appeal to the Court.
(8) The Court by which a care order is given shall direct the applicant to deliver to the person or institution entrusted with the care of the child a record int he the prescribed fonu containing such information regarding the child concerned as the Court may deem necessary for effective discharge of the order.
(9) A care order made under this section shall commit or the child to whom it relates to the care of the person remain in institution named in the order, and the order shall Court force for one year or for such short er period as the may direct.
(10) In making a care order under this section, the Court may (a) make such furt her orders and give such directions as may require the Secretary or his or her representative to supeiwise the mode of compliance with the care orders; and (b) give such directions to the Secretary, Children Officer or his representative, as the Court may consider necessary, to facilitate the enforcement of the care order.
it (11) Where a care order is made under this section, shall be the duty of the Secretary or the Secretarys representative to (a) monitor and supervise the standard of care to provided to the child by the person or institution whom or to which the child is comm itted under the 54 1 Children 2022 No.
29 care order; and the (b) periodically assess the conditions under which ehild is aeeommodated pursuant to the eare order: Provided that the period refen-ed to in this subseetion shall not exceed tw elve months.
the Access to children 154.
(1) In determining the terms of a care order, ^ ^ ^ in care.
Court may (a) consider any prior arrangements made by the Seeretary for allowing any person aceess to the ehild during the period within whieh the care order remains in force; (b) grant leave to any person to make submissions in the proeeedings to the arrangements referi'ed to in paragraph (a); or (e) give sueh directions as the Court eonsiders appropriate for reasonable aecess to the ehild.
(2) Unless the Court otherwise directs, reasonable contact shall be allow ed between the child and (a) the childs parent or guardian; (b) any person who has parental responsibility in respeet of the child; (c) the relatives of the child; or (d) such other person as the Court may direet.
(3) The Court shall not make an order under this the section authorizing any person to have contact with is child if the Court is of the view that such contact child.
detrimental to, and not in the best interest of, the (4) Where the Court makes an aecess order under this section, the Court shall determine the frequeney and sueh duration of aeeess to the ehild subj ect, however, to conditions as the Court may consider appropriate.
the (5) The Court may, on the application of the ehild, Secretaiy or other authorised offieer, make an order not have direeting that any person named in the order shall aeeess to, or eontaet with, the ehild to whom the order relates.
542 2022 Children No.
29 (6) A Court making a contact order under this section or rev ive has power to vaiy, suspend or discharge the order, as the the order aft er it has been diseharged, on such terms court shall deem fit.
(7) An access order made under this section shall not remain in force in relation to a child w ho has attained the of a eare age of eighteen years or aft er the date of discharge order.
Power to make 155.
(1) A Court may, either of its own motion or on i nterim care order.
on application by any person, make an interim care order any of the grounds specified in section 153 (2).
(2) Without prejudice to the generality of subseetion (1), a Court may make an interim care order where (a) the substantive application for a care order is adj ourned; or (b) there is in force a Court order for the assessment of the child in proceedings under section 137 pending the final care order.
(3) An interim care order made under subseetion (1) shall not remain in foree for a period exceeding two months: Provided that the Court may, for good cause, extend the order once for a furt her period not exceeding two months.
ofc ar e 156.
(1) A care order or intenm order may be Discharge ^ ' order, discharged (a) by the making of an adoption order in respect of the child; (b) in any case where the care order was not made in respect of the child by reason of the child having been found guilty of a criminal offence under Part XV; or (e) by the making of a residence order in respect of the child (2) Without prejudice to the generality of subsection or (1), the Court has power to vary or discharge the care on interim care order on such terms as the Court may direet the application of (a) the child; 543 Children 2022 No.
29 (b) the Secretary; (c) the parents or guardian of the child; (d) any other person who has parental responsibility over the child; or (e) a person acting on behalf of and in the best interest of child.
(3) An order made under this section may include aor supervision order made in substitution of a care order i nterim care order.
Care on comm ittal 157.
(1) Where the Court makes a care order directing to a rehabilitation that a child be comm itted to a rehabilitation school on school, etc.
shall being found guilty of an offence, the committal order shall specify the grounds on which the order is made and of (a) contain a declaration as to the age and religion the child; (b) specify the rehabilitation school to which the child is to be sent; of (c) disclose the identity or administrative status the person by whom the child is proposed to be escorted to the school; (d) specify any special needs, health care or other special attention required by the child; (e) set out any 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 parent or guardian of the child, and the dates on which accounts shall be supplied to th em.
(2) A child committed to a rehabilitation school shall school be escorted by a police officer for placement in the within twenty-four hours of his or her committal.
(3) If the child is not escorted to the rehabilitation the school within the period specified in subsection (2), child shall be held in a child protection unit in accordance with this A ct.
(4) Where a child is committed to a rehabilitation take school in accordance with this Act, the Secretaiy shall officer all necessary steps to facilitate the escort by a police and placement of the child into the school in accordance 544 Children 2022 No.
29 w ith the com m ittal w arrant issued under this A ct.
(5) Upon committal of a child to a rehabilitation and school under this section, the school shall prepare submit to the Court a report confirming the committal of within seven days, and the Court shall record the fact such committal.
Transmission of in 158.
The Court making a care order under this Part committal order.
relation to a child comm itted to a rehabilitation school shall t he direct that the order be delivered to the manager of rehabilitation school together with a record in the as prescribed fonn of such information regarding the child the Court may specify.
Escort of a child to 159.
(1) Where a person authorised to escort a child to a rehabilitation a rehabilitation school is unable to fi nd or obtain custody of school.
on oath the child, the Court may, if satisfi ed by infonnation to that a person named in the information is in a position produce the child, issue a summon requiring the specifi ed and person to attend at the Court on an appointed date produce the child.
(2) If the person summoned under subsection (1) fails to comply with the directions of the Court , the person eommits an offence and is liable on conviction to to a fi ne imprisonment for a teiTn not exceeding one year or both.
not exceeding one hundred thousand shillings, or to (3) If the person, without reasonable cause fails to attend court in obedience to an order given under this on section, he or she eommits an offence and is liable one conviction to imprisonment for a term not exceeding orto year or to a fi ne not exceeding fi ft y thousand shillings, both.
(4) The penal sanctions prescribed in subsection (3) other are in addition to, and not in substitution for, any liability or sanctions to which the person may be subject under this Act or any other written law.
Harbouring or 160.
Where a child has been placed under care in a concealing a child.
rehabilitation school, any person who harbours or conceals the ehild after the tim e fi xed for the child to enter the on rehabilitation school, commits an offence and is liable two conviction to imprisonment for a term not exceeding years or to a fi ne not exceeding one hundred thousand 545 Children 2022 No.
29 shillings, or to both.
f rom 161.
(1) A child who escapes from a fit person, Escape child has charitable ehildren s institution to w hose care the been entrusted under this Act, or from any person or a institution with whom the child has been plaeed by charitable childrens institution, or 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 the child was resident immediately before the child escaped.
(2) If a child is apprehended under the circumstances the child speeified in subsection (1), the Court before which is brought may (a) order that the ehild be return ed to where the child escaped from; (b) by order, place the child under the care of some other person or charitable childrens institution; (c) order that the child be sent to a rehabilitation school; (d) make any order which a Court may make under seetion 150; or (e) make an order requiring the ehild to undergo professional counselling.
(3) Before making any order under subsection (2), the fi t Court shall call for and consider any report from a and person or institution from which the child has escaped, sueh report shall disclosi (a) the circumstances under which the child escaped; and (b) the conditions under which the child was accommodated.
(4) Any order made under subsection (2) shall be required to be made in the best interest of the child.
(5) The court shall consider the views of the child before making an order under this section.
Duty of Charitable 162.
(1) Where a child escapes from any person or childrens i nstitution w ith w hom or w ith w hich the child has been i nstitutions and c ounty Public placed by a charitable childrens institution or county 546 Children 2022 No.
29 Entities.
public entity, the manager, person in eharge of the i nstitution or other authorised of ficer of such institution or authority shall (a) immediately report to the nearest police station within twenty-four hours of sueh oeeurrence coming to his or her attention; (b) l odge with the Court, a written notiee of the ehilds escape within a period not exceeding one month; (2) If any manager or person in eharge of a ehildren with institution or other authorised officer fails to eomply on subsection (1), he or she commits an offence and shall, eonviction, be liable to a fine not exeeeding one million shillings.
fr om 163.
(1) Any ehild who eseapes fr om a childrens Escape homeTr * remand home or while being eseorted thereto or therefrom, rehabilitation may be apprehended without warrant and dealt with in school.
aceordance with seetion 157.
(2) Any child who has been committed to a rehabilitation sehool and w ho (a) escapes from sueh school or from any hospital, home or institution in which the ehild is reeeiving medieal or other treatment, or while being conveyed to or from any sueh place; or (b) being absent fr om such school on leave of absence or on licenee, runs away from the person in whose eharge the ehild has been placed, or fails to return to the school on the expiration of his or her leave, or on the revocation of his or her licenee, shall be apprehended without warrant and brought the before a Court having jurisdiction over the area where school is situated to be dealt w ith in accordanee w ith section 157.
(3) Where a child is restored to a rehabilitation school under subsection (2), the period of his or her committal by shall be increased, over and above any increase ordered he or Court, by a period equal to the period during whieh she was at large and absent fr om the school.
Aiding escape, 164.
Any person who willfully and knowingly etc.
(a) aids of induces a ehild (i) to run away from a fit person, a charitable 547 Children 2022 No.
29 childrens institution, children remand home or a rehabilitation institution or authorised person to whose care the child has been committed, or from any person or institution with w hom or w ith w hich the child has been placed by a charitable childrens institution, children remand home or a rehabilitation institution or an approved authorised officer under or by virtue of this Act or any regulations made under the Act; (ii) to do any of the things specified in section 163(2); (b) harbours or conceals a child who has escaped under any of the circumstances, or done any of the things, referred to in paragraph (a); or (c) prevents such a child fr om returning, or induces such a child not to return, to the care of the person to whom the child has been committed, or to any place in which the child is placed, commits an offence and is liable on conviction to or imprisonment for a term not exceeding twelve months, or to a fi ne not exceeding two hundred thousand shillings, to both.
Production of 165.
(1) If a Childrens Court is satisfied by escaped child.
f or information on oath that there are reasonable grounds things believing that a child has escaped or done any of the named specifi ed in section 163, and that some other person child, the in the information is in a position to produce the to Court may issue summons requiring that other person attend at the Court and produce the child.
(2) If the person summoned under subsection (1) fails this to comply with the directions of the Court given under _o 'KifJ on section, the person commits an offence, and shall, conviction, be liable to imprisonment for a term not two exeeeding twelve months or to a fi ne not exceeding hundred thousand shillings, or to both.
(3) The penal sanctions prescribed in subsection (2) to shall be in addition to any other penalty or liability any which the person may be subjected under this Act or other w ritten law.
166.
(1) Where a person appears before any Court for Court the purpose of giving evidence, and it appears to the age I :; i.
, 548 Children 2022 No.
29 the that the accused, the victim or complainant to whom the Court proceeding relates is under eighteen years of age, or shall inquire as to the age of the accused, victim complainant, and shall take such evidence, including or her medical evidence for the purpose of deteiTnining his age.
(2) The age presumed or declared by the Court under before subsection (1) to be the age of any person appearing the it shall, for puiposes of this Act, be deemed to be persons age unless the contrary proof is adduced before Court.
(3) A cert ifi cate duly completed and signed by a medical practitioner as to the age of a person under in eighteen years of age shall be produced and admitted the evidence in any proceeding before the Court , unless Court otherw ise directs.
Contribution order 167.
Where a Court makes an order placing a child not to be made in shall not under the care of a rehabilitation school, the court certain cases.
of make a contribution order requiring a parent or guardian the child to contribute any sums of money towards the maintenance of the child.
168.
(1) The Cabinet Secretary may enter into an inter-country or agreement with the govern ment of any other country territory on such tenns and conditions as the Cabinet been Secretary may think fi t, under which a child who has to be ordered by a Court under the provisions of this Act or sent to a rehabilitation school or other institution, into committed to the care of a fi t person, may be received that country or territory and placed in a rehabilitation school or other institution approved under the relevant into the legislation of that country or territory, or received care of a fi t person or returned to his parent or guardian.
(2) Any child who has been ordered under the school provisions of this Act to be placed in a rehabilitation or any other institution, or committed to the care of any w arrant person, may, while still subject to such order, by signed by the Cabinet Secretary, be removed from the 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 aint he rehabilitation school or other institution or placed in care of a fi t person, or of his parent or guardian, 549 Children 2022 No.
29 in the accordance with the law for the time being in force the country or territory authorising sueh placement, until expiration of the order, or until such child is sooner released according to law.
(3) An order of a Court of a county or tenitory with whieh an agreement has been entered into in accordance with the provisions of subsection (2) which could lawfully been have been made by a Court in Kenya if the person had reeeived within its jurisdietion, shall upon the person being ifthe in Kenya have the same effect and be enforceable as order had been made by a Court in Kenya.
Bonds.
169.
The provisions of the Criminal Procedure Code the with respect to bonds for good behaviour, ineluding bonds provisions as to their enforcement, shall apply to entered into under this Part.
PART XIII FOSTER CARE PL A CEM ENT Objectives of 170.
( 1) The overriding objectives of foster eare f oster care placement plaeement are (a) to protect and nurture children in need of care and proteetion by providing a safe, healthy environment with wholesome support; (b) to promote long term parental care, with the goal of family reunification in the first instance; (c) aecommodating ehildren in altern ative, safe and nurturing family relationships for long periods of time; (d) to provide soeial and economie stability in the life of a child or children who may be denied or unable to have a stable family support system; yJt and of (e) to promote family relationships in the context >ry Kenyas cultural, ethnic and community diversity.
(2) In any case where a child is in need of care and or protection, either with the inteiwention of the Secretary fir st under an order of the Court, the child shall, in the instanee, be placed in family based alternative eare.
Restrictions on 171.
(1) In this Part, foster eare includes periods of foster care.
(a) placement of a child in foster eare on short term basis for a period not exceeding three years 550 Children 2022 No.
29 (i) in situations of emergency; (ii) where the child is found abandoned; or (iii) where the child is in need of care and protection; or (b) placement of a child in foster care for a period exceeding for alternative care; or (i) it has not been possible to facilitate the adoption of the child or to place the child in family-based alternative care within a period of three years when (ii) it is shown to the satisfaction of the Court on evidence that circumstances exist to justify extension of time pending adoption or other arrangements years.
(2) Any arrangements for the foster care of a child the shall, in the first instance, be on application to tw elve Secretary, and shall be for a period not exceeding a months, but liable to extension from time to time for period not exceeding three years in the aggregate.
(3) Without prejudice to the generality of subsection a period (1), no child shall be placed under foster care for f ir st had exceeding three years without an order of the court and obtained on application in the prescribed form f oster specifying the grounds on which a longer period of care is necessary.
(4) In determining an application for extension of shall foster care beyond the period of three years, the Court t ak e into account and (a) the need to ensure stability of the childs life; (b) the best interests of the child.
Conditions for be 172.
(1) For the purposes of this Part, a child may foster care of placed under foster care either on the direct intervention placement.
and such the Secretary or pursuant to an order of the Court, placement shall, in the first instance, be home based.
(2) Where a child has, by virtue of a care order, been committed to a rehabilitation school or to a charitable with the childrens institution, the Secretary, in consultation manager or other authorised officer of the institution, may as the place the ehild with a foster parent for such period V ' Secretary may from time to time authorise.
551 Children 2022 No.
29 (3) Without prejudice to the generality of subsection made (2), a child in relation to whom a care order has been by reason of having been found guilty of a criminal offence, shall not be placed with a foster parent without l eave of the Court.
(4) A foster parent in whose care a child is committed have the shall, while the child remains in his or her care, same responsibilities in respect of the childs maintenance as if he or she were the parent of the child.
(5) Where a child has been placed in the care of a - foster parent, it shall be the duty of the Secretary (a) to supervise and assess the condition of the child from time to time; and (b) to take such steps as shall be necessary to safeguard the welfare of the child.
(6) The provisions of this Part shall cease to have effect in relation to a child (a) on discharge of the care order; of (b) on expiry of the period specified in the order the Court; (c) on the child attaining the age of eighteen years; or (d) on the death of the foster parent.
173.
(1) Any person wishing to foster a child shall f orm.
make an application to the Secretary in the prescribed (2) On receipt of the application referred to in subsection (1), the Secretary shall conduct due diligence, including ascertaining the criminal l iability of the prospective foster parent, and prepare a report containing : ) made information relating to the matters specified in Rules under this A ct.
of (3) The parent or guardian of the child in respect whom the application is made, and the manager of the f or the charitable children institution at which the child have time being is accommodated, if that be the case, shall on any the right to make representations to the Secretary (2).
matter contained in the report referred to in subsection (4) Without prejudice to the generality of subsection f or (1), any person who voluntarily assumes responsibility the care and protection of a child in a situation of 552 Children 2022 No.
29 emergency may exercise temporary foster care over the child for a period not exceeding three months pending guardian reunification of the child with his or her parent or or placement in foster care under this Act.
(5) No person shall exercise temporaiy foster care inthe under subsection (4) unless such person gives notice the prescribed form to the Officer Commanding Station in is local l imits of the j urisdiction in which the child accommodated.
(6) The Officer Commanding Station shall notify the Secretary within twenty-four hours of receiving a notice under subsection (5).
(7) A foster parent in whose care a child is committed have the shall, while the child remains in his or her care, of the same responsibilities in respect of the maintenance of child as if such foster parent were the parent or guardian the child.
Persons qualifi ed 174.
(1) Any of the following persons may apply to , i.
ji.
t.
^ 4.
^ 4.
^ ^ to foster children be appointed a foster parent or foster parents (a) spouses of a marriage where one or both the spouses are between twenty-five and sixty-five years of age; (b) a single woman of between twenty-five and sixty-five years of age; or (c) a single man of between twenty-fi ve and sixty- five years of age.
(2) A single man shall not qualify to foster a female child under this Part unless he is a father to a female child, child and a single woman shall not qualify to foster a male under this Part unless she is am other to a male child.
(3) A person who is convicted by a Court of Third competent jurisdiction for any of the offences in the to be a Schedule or similar offences shall not be appointed foster parent.
(4) Subsection (2) shall not apply to a person who applies be a foster parent to an intersex child.
(5) No person shall be appointed to be a foster parent and unless the person is resident in the Republic of Kenya has been resident for a period of not less than twelve months.
553 Children 2022 No.
29 (6) A foster parent shall not remove a child from Kenya without obtaining the leave of the Court on shall application in the prescribed form, and such leave only be granted in exceptional circumstances at the i nterest of discretion of the Court , having regard to the best the child.
(7) Where leave is granted under this section, the it Court may impose such conditions or restrictions as of considers appropriate, having regard to the best interest the child.
Conditions for 175.
The Secretary shall not authorize foster care foster care.
of the placement of a child if it is shown to the satisfaction Secretary that the application has not been done following the procedure set out in mles made under this Act.
Limitation on the 176.
Not more than four children may be placed in number of the same foster care with a single person or two persons in children placed under foster care household, except where in a household.
(a) the children are siblings or blood relatives; or (b) the Secretary is of the view that, in the circumstances of any part icular case, such placement is in the best interest of all the children.
Records of foster 177.
(1) A person shall not, for the purposes of care placements.
child fostering a child, retain in his care and custody a whose parent, custodian or guardian cannot be readily identified, without first notifying the Secretary.
(2) Every registered Charitable Children Institution the undert aking foster care placement in conjunction with Secretaiy shall maintain a register containing the part iculars prescribed in regulations.
to (3) The Secretaiy shall keep and maintain a register be known as the Foster Care Register containing the in part iculars of all foster care placements specified regulations.
Agreement for 178.
(1) The Secretaiy may, on the application of a maintenance of direct that foster child.
foster parent or the parent or guardian of a child, the an agreement be made between the foster parent and parent or guardian of a child placed in foster care or stipulating the maintenance payable by such parent guardian for the childs care.
554 Children 2022 No.
29 (2) Any maintenance agreement made in respect of a child under foster care in accordance w ith this section shall be legally binding on the parties to the agreement.
Termination of 179.
(1) Any foster care placement made under this f oster care.
the Part may be terminated on the written direction of opinion, in Secretary if the termination is, in the Secretarys the best interest of the child.
care (2) Before directing the tennination of any foster account placement of a child, the Secretary shall take into all relevant factors, including (a) where the biological parent reclaims care of the child, the bond that exists between the child and the child's biological parent; (b) the bond that subsists between (i) the child and the foster parent; and (ii) the child and the family of the foster parent; and the (c) the prospects of achieving social stability in child's life by (i) returning the child to the biological parent; (ii) allowing the child to remain in foster care with the foster parent; (iii) placing the child in any other alternative family care; or (iv) adoption of the child.
(3) Without prej udice to the generality of subsection (2), the decision to reunite a child with his or her biological be parents on termination of foster care placement shall child.
based on the principle of the best interest of the Penalty for 180.
A person who, without reasonable cause, contravening an contravenes any of the provisions of this Part commits provisions of this Part.
offence and is liable on conviction to a fine not exceeding a two hundred thousand shillings or to imprisonment for term not exceeding two years, or to both.
f or Regulations, 181.- The Cabinet Secretary shall make regulations the better carrying out of the provisions of this Part.
Rules.
182.
The Chief Justice may make court rules of care procedure and practice in matters relating to foster placement.
f 555 2022 Children No.
29 PART XIV ADOPTION Power to m ake an 183.
(1) Subject to this Act, the High Court may, on adoption orders.
in application made in the prescribed form, make an order, an this Act referred to as adoption order, authorising applicant to adopt a child.
and (2) All proceedings under this Part shall be heard and determined in chambers, and the identity of the child the applicants shall be kept confidential.
(3) In this Act, adoption means local, kinship and foreign adoption.
(4) For the purposes of this Part (a) kinship adoption has the meaning assigned to it in section 2; (b) local adoption means an adoption in relation to w hich (i) the child is resident in Kenya; and (ii) the adopting parent or parents are Kenyan nationals resident in Kenya; and me an s (c) foreign adoption' an adoption in relation to w hich (i) the adopting parent or parents are Kenyan nationals with dual citizenship; (ii) the adopting parent or parents are foreign nationals whether or not resident in Kenya; (iii) the adopting parent or parents are not Kenyan nationals but are biologieally related to the child; or (iv) the adopting parent or parents were once Kenyan nationals but have l ost their nationality by operation of the law of the host country to which the prospective parent or parents have a nationality 184.
( 1) A person shall not commence any arrangements for the adoption of a child unless (a) the Council, in accordance with the rules, has declared the child free for adoption; and (b) the child has attained the age of six weeks.
556 Children 2022 No.
29 (2) A person, including a parent, guardian or adoption order, society, shall not, prior to the making of an adoption entrust a child to the care, possession or control of any with this person not qualified to adopt a child in accordance A ct.
(3) An applicant shall not preselect a prospective adoptive child except (a) in the case of kinship adoption; to (b) Where the applicant is a foster parent seeking adopt a fostered child under the applicants care.
to (4) The Secretary shall monitor and submit reports to the courts on the wellbeing of a child who is subject adoption proceedings.
(5) Any person who contravenes subsections (1) or (2) of this section commits an offence and shall, on conviction, three be liable to imprisonment for a tenn not exceeding or to years or to a fi ne not exceeding one million shillings, both.
Children who may 185.
(1) Any child who is resident within Kenya may be adopted.
or be adopted whether or not the child is a Kenyan citizen, was bom in Kenya.
(2) Without prejudice to the generality of subsection (1), no Court may entertain an application for an adoption order in respect of a child unless (a) the child concern ed has been in the continuous care and control of the applicant within Kenya for a period of thi'ee consecutive months preceding the fi ling of the application; and (b) the application for an adoption order is supported by a report made by a duly registered adoption society recommending that an adoption order be made.
(3) The report referred to in subsection (2)(b) shall in contain the societys fi ndings and recommendations as the respect of the child and the applicant or applicants, case may be.
(4) The following children shall be eligible for adoption (a) a child who is an orphan and has no guardian or caregiver able and willing to take care of the child; 557 2022 Children No.
29 (b) a child who has been abandoned or whose parents or guardians whereabouts cannot be traced within a period of one year; (e) children who are willingly offered for adoption by their biological parents in accordance with regulations made under this Part.
Who may apply to 186.
(1) The Court may make an adoption order on adopt a child.
application by (a) a sole applicant; or (b) two spouses j ointly.
(2) The Court shall not make an adoption order in any case unless (a) the applicant has attained the age of twenty-five years, but is not above the age of sixty- fi ve years; and (b) the applicant, or both of the applicants in a joint application, is more than twenty-one years older than the child.
in (3) The restrictions in subsection (2) shall not apply any case where a sole applicant or one of the j oint child.
applicants is the mother, father or relative of the (4) The Court shall not make an adoption order in isa favour of a sole male applicant, unless the applicant blood relative of the child.
(5) The Court shall not make an adoption order in satisfi ed favour of the following persons unless the Court is on reasons to be stated on the record that there are special circumstances that wairant the making of the adoption both have, order an applicant or j oint applicants who has, or attained the age of sixty-fi ve years.
(6) The Court shall not make an adoption order in or favour of an applicant or j oint applicants if the applicant j oint applicants, or any of them (a) is of unsound mind within the meaning of the Cap 248.
Mental Health Act; (b) is incapable of exercising proper care and guardianship of a child; 558 2022 Children No.
29 (c) has been convieted by a Court of competent j urisdiction for any of the offences specified in the Third Schedule or similar offences; (d) in the case of j oint applicants, if the applicants are not married to each other; (e) isa sole male applicant except where the applicant is a biological relative of the child; or (f) isa foreign applicant except where the applicant is a biological relative of the child.
(7) Notwithstanding anything contained in this section an the Court may at its sole discretion decline to make the adoption order in favour of any person or persons if Court is of the v iew that it is not in the best interest of the child to m ake the order.
(8) Subject to the provisions of this section, an shall application for an adoption order in respect of a child be accompanied by written consents of the following persons (a) a parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child; (b) on the application of one of the spouses, the consent of the other spouse; and of (c) in the case of a child who has attained the age ten years, the child himself or herself a (9) If the child referred to in subsection (8)(c) has to disability which restricts or impairs the childs ability be independently give his or her consent, the child shall of an accorded such assistance, including the assistance intermediary, to facilitate his or her written consent.
to dispense 187.
(1) The Court may dispense with any consent Power (c) if required under section 186(8) paragraphs (a), (b) and the Court is satisfied that (a) in the case of the parent or guardian of the child, the parent or guardian has abandoned, neglected, persistently failed to maintain or persistently ill- treated the child; order (b) in the case of a person liable by virtue of an or agreement to contribute to the maintenance of I 559 2022 Children No.
29 the child, that person has persistently neglected or refused to make contribution in accordance w ith the order; or (c) in any other case, except in respect of the consents required under section 186(8)(c) and (9), the person whose consent is required cannot be found or is incapable of giving his or her consent, or that his or her consent has been unreasonably withheld.
(2) Without prejudice to the generality of subsection (l )(a) (a) abandonment shall be presumed in any case where the child appears to have been abandoned at birt h, or if the person or, where the institution having care and possession of the child, that institution has lost all contact with a parent or guardian of the child for a period exceeding one year; and (b) persistent failure to maintain the child may be presumed where, despite demands made, no parent or guardian has contributed to the maintenance of the child for a cumulative period of one year.
(3) 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 or that cannot be found or is incapable of giving consent, the spouses have separated or divorced and are living apart , and that such separation is likely to be permanent.
rje (4) The consent of any person to the making of an.
.
in ( this adoption order in pursuance of an application under to Part may be given, either unconditionally or subject inw hich conditions with respect to the religious persuasion identity the child is to be brought up, without Imowing the given of the applicant for the order, and where the consent by any person is subsequently withdrawn on the grounds only that he or she does not know the identity of the applicant, the consent shall be deemed as being unreasonably withheld.
the (5) In considering whether or not to dispense with consent required under this section, the Court shall regard 560 2022 Children No.
29 thereto, the interests of the child as paramount and, subj ect or give priority to the interests of the parents, guardians relatives of the child over those of the applicants.
(6) Any person by whom consent is given under this Part may withdraw his or her consent either (a) without leave of the Court ; or (b) with leave of the Court at any time aft er the filing of the application for an adoption order, but prior to the making of the order.
(7) Any person whose consent to the making of an adoption order is required under section 189 may either (a) attend Court at the adoption proceedings for the purpose of giving oral evidence in relation to his or her consent; or (b) deliver to the Court a declaration made on oath and attested by a duly qualified legal practitioner, j udicial officer or such other person as may be specified in regulations, confirming the deponents consent in that regard.
a (8) In the absence of any evidence to the contrary, document made in or outside Kenya signifying consent given under this section, shall be admissible in evidence only if (a) the document is duly executed by the person making it; and the (b) the signature of the maker is duly attested and document notarized and duly cert ified as a true copy of the original.
(9) A document signifying the consent of the mother of a child shall not be admissible under this section unless on (a) the child was at least six weeks old on the date which the document was executed; and (b) the document is duly attested by any of the persons specified in subsection (7)(b).
Appointment of 188.
(1) Where an application is made for an adoption 1 -1A.
1 11 guardian ad litem order, the Court shall, either of it s own motion or on fo r purposes of order adoption.
application by any part y to the proceedings, make an 561 Children 2022 No.
29 the child appointing a fit person to be guardian ad litem of to whom the application relates.
(2) The guardian ad litem shall be under duty to (a) safeguard the interests of the child pending the deteimination of the adoption proceedings; (b) investigate and report to the Court on the facts and circumstances relating to the adoption of the child; (c) make recommendations as to the propriety of making any interim orders or an adoption order in respect of the child; intervene on behalf of the child and arrange for (d) the care of t he child inthe event of t he withdrawal of any consent prescribed by this Act; and (e) undert ake such other duties as the Court may from time to time direct, or as may be prescribed by the rules.
(3) Where arrangements for the adoption of any child society have been made by an adoption society, neither the of the nor any member thereof shall be appointed guardian child in relation to the adoption.
(4) The appointment of a guardian ad litem shall under expire upon the making of a final order by the Court of this Part , unless the Court , having regard to the interests the child, extends the period of the appointment.
(5) Without prejudice to the generality of subsection of the (4), where an appeal is lodged against a final order to Court made under this Part , the Court shall have power the date extend the appointment of a guardian ad litem until of the deteiTnination of the appeal.
I nterim orders.
is 189.
(1) Where an application for an adoption order pending in Court (a) any person who has consented to the adoption shall not be entitled, except with leave of the Court , to remove the child from the care and control of the applicant; or (b) the applicant who has received a child into his her care for the purposes of an adoption shall not, without leave of the Court , remove the child from 562 Children 2022 No.
29 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 exist in relation to the health, welfare and safety of the child; (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 the parent or guardian of the child, if they are living or can be found.
(2) Where a Court makes an order under this section, the the Court shall make a wardship order in respect of child, and shall cause the applicant to execute a security to bond with sureties requiring that the child be returned Kenya by the applicant within such period as may be may be specified by the Court , and give such directions as necessary to secure the return of the child to Kenya.
(3) Any person who, without lawful justification, fails by an to return a child to Kenya within the period specified order issued under this section comm its an offence and at er m shall, on conviction, be liable to imprisonment for two not exceeding three years, or to a fine not exceeding million shillings, or to both.
(4) The Court may, either of its own motion or on the application by a parent or guardian of the infant, ad Secretary, an adoption society or the appointed guardian to litem, make such interim orders as appear just in respect the l egal custody, maintenance, access, education, and residence, safety, or welfare of the child generally may parental responsibility in respect of the child, and child direct that such proceedings be taken for placing the under the protection of the Court.
(5) The requisite consents for the making of an making adoption order shall be required for the purposes of to the an interim order in the proceedings subject, however, power of the Court to dispense with such consent.
(6) The Court shall not make an interim order in any case where the making of an adoption order is unlawful.
563 Children 2022 No.
29 (7) For the avoidance of doubt, an interim order shall order not be construed as, or have the effect of, an adoption made under this A ct.
Review of 190.
(1) A person who is a biological parent of a child adoption.
by a in respect of whom an adoption order has been granted f or Court may apply to the Court for review of the order adoption on grounds that (a) the child in respect of whom an adoption order has been granted by a Court was lost or abducted; (b) the biological parent reported to the Secretary and took all measures to trace, to find and to reunite with the child and were not successful; and the (c) it is in best interest of child to reunite with child with their biological parent.
(2) Where the court is satisfied with the grounds under subsection (1), the court may^ (a) i ssue an order to revoke the adoption order and give custody of the child to the biological parent; ortoa (b) review an existing order to give j oint custody biological parent and an adoptive parent (3) A court may give an order for joint custody where- (a) the child has been in the custody of the adoptive parents for more than fi ve years; and (b) the child expresses that he or she would wish to maintain a relationship with the adoptive parents.
191.
The Court may make an adoption order in respect adoptions.
' ( w ho are of a child on the j oint application of two spouses toas not citizens or residents of Kenya, in this Act referred an inter-country adoption, if the applicants (a) have satisfied the Court that (i) all efforts to trace the childs parents and relatives, and reunify with them have, despite State support, failed; and (ii) all local arrangements for the placement of the child in family based alternative care have been exhausted and failed; 564 Children 2022 No.
29 (b) have obtained the consents specified in section 186 (8); (c) have satisfied the Court that the country where they ordinarily reside and where they intend to reside with the child immediately aft er the making of the adoption order will respect and recognise the adoption order and grant resident status to the child; and (d) have been authorised and recommended as persons who are fi t, including being morally fi t and fi nancially capable, to adopt a foreign child by a competent government authority or Court of competent jurisdiction in the countiy where they intend to reside with the child immediately aft er the making of the adoption order.
Adoption by non 192.
The requirements of section 191 shall apply to resident Kenyans.
adoption by (a) citizens of Kenya who are not ordinarily resident in Kenya; (b) citizens of Kenya who have dual citizenship, but who are not ordinarily resident in Kenya; and (c) persons who were citizens of Kenya by birth but have lost the same status by operation of the law.
K.mship Adoption, 193.
(1) A kinship adoption order may only be made inf av our of a relativ e of the child.
(2) The Cabinet Secretary may make regulations to give effect to this Part.
Powers of the 194.
(1) Before making an adoption order, the Court Court in adoption it shall inquire into and be satisfi ed on evidence before proceedings.
that (a) every person whose consent is required under this Part, which consent has not been dispensed with, has consented to and understands the nature and effect of the adoption order for which the application is made; that (b) in the case of a parent, the parent understands the effect of the adoption order is to permanently deprive him or her of his or her parental rights; of (c) if made, the order will be in the best interests the child, having regard to the wishes of the 565 Children 2022 No.
29 child, depending on the childs age and understanding, and to the ability of the applicant to maintain and educate the child; (d) 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; (e) 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; (f) where the applicant is not a relative of the child, reasonable steps have been taken to inform the relatives of the child of the proposed adoption, and no relative who is capable of exercising care over the child has expressed willingness to do so; (g) both the applicant and the child have been assessed and evaluated by a duly registered adoption society in Kenya in aceordanee with this Act and the societys report delivered to the Court; and (h) the Council has certified and declared the child free for adoption.
(2) The Court may make an adoption order under this think Part on such terms and conditions as the Court may fit, including orders (a) requiring the adopter, by bond or otherwise, to make such provision for the child as, in the opinion of the Court , are just and expedient; (b) directing that the child shall not be removed from - -I fi r' the jurisdiction of the Court without leave of the Court for such period as the Court may specify; (c) requiring the adopter to accept supervision by, and advice fr om, an adoption society specified by the Court for such period as the Court may direct; (d) requiring the child to be brought up in accordance with a particular tradition conditional to which the consent was given; by (e) requiring the adopter to furnish such security bond or otherwise as the Court may consider fit 566 Children 2022 No.
29 for the due performance of any condition that the Court may impose; or (f) in a case where the adopter is not a resident or citizen of Kenya, requiring the adopter to avail such periodic reports from a Court of competent j urisdiction or state agency responsible for matters relating to adoption in the adopters country of residence for such period as the Court may specify.
Power of the a 195.
(1) At the time of making an adoption order in Court to appoint either of domestic or inter-country adoption, the Court may, guardian.
its own motion or on application by the adopter or j oint that adopters, appoint a guardian of the child in the event the adopter or, in the case of aj oint application by spouses, or as the case may be, the adopter or joint adopters die of become incapacitated before the child attains the age eighteen years.
(2) The Court may, at any time before the child attains the age of eighteen years, on the application of the adopter, of the or of the guardian appointed under subsection (1) or child, revoke such appointment and appoint any other person to be the guardian of the child.
in Adoption order i 196.
(1) The Court may make an adoption order or an interim adoption order in respect of a child who has this adopted.
previously been the subject of an adoption order under Act or any other written law in any Commonwealth jurisdiction.
(2) For the purposes of an application under virtue subsection (1), the adopter or adopters under and by Act of the previous or last adoption order made under this child.
shall be deemed to be the parent or parents of the Parental 197.
If the Court declines to make an adoption order, responsibility the Court may make such order in respect of parental when adoption is denied.
fi t.
responsibilities over the child as the Court may consider Appeals, 198.
Any person aggrieved by an order of the Court an order relating to an application for an adoption order, or under relating to parental responsibility over a child made same this Part, may appeal to the Court of Appeal in the under the manner as if the application were a suit instituted Civil Procedure A ct.
Variation of 199.
(1) The Court which makes an adoption order orders.
to may, on the application of the adopter, vary the order 567 Children 2022 No.
29 and correct any defect in the particulars contained therein direct that the varied order be lodged with the Registrar, who shall cause the Adopted Children Register to be rectifi ed accordingly.
(2) Where an adoption order was made before the commencement of this Act, the power of the Court under subsection (1) shall include power to vary the order (a) by the insertion of the country of birth of the adopted person; or as (b) where the order does not specify a precise date the date of birth of the adopted person, by the insertion of the date which appears to the Court to be the probable date on which the person was bom, and the requirements of subsection (1) will apply with immediate effect.
(3) Where an adoption order is quashed or an appeal the against an adoption order is allowed, the Court making any entry order to quash shall direct the Registrar to cancel the in the Register of Births together with any entry in the Adopted Children Register effected in pursuance of order.
(4) A copy of or an extract from, an entry in any register, being an entry the making of which is cancelled copy under this section, shall be deemed to be an accurate are or extract only if both the marking and the cancellation omitted therefrom.
200.
(1) The Registrar shall maintain an Adopted court Children Register and shall make such entries as the may direct.
(2) A certifi ed copy of an entry in the Adopted J ! !,.;! seal of Children Register that is sealed or stamped with the adoption the Registrar shall be admitted as evidence of the to w hich it relates.
(3) A certifi ed copy of an entry in the Adopted of the Chilcken Register that contains an entry of a record child, date of the birth or the country of birth of an adopted of birth shall be admitted as evidence of the date or country the as if the copy were a certified copy of an entry in Register of Births.
(4) The Court shall direct the Registrar to issue a Register certifi ed copy of an entry in the Adopted Children on payment of such ^ee as the Registrar may prescribe.
568 Children 2022 No.
29 (5) The Registrar shall maintain a record that traces Births the connection between an entry in the Register of and an entry that comesponds in the Adopted Children Register.
Regista tion of 201.
(1) Every adoption order made by the Court shall in the contain a direction to the Registrar to make an entry Adopted Children Register in the prescribed form.
(2) For the purposes of compliance with the of the requirements of subsection (1), if the precise date the Court , childs birt h is not proved to the satisfaction of or her the Court shall detennine the probable date of his deemed to birt h, and the date specified in the order shall be be his or her date of birt h.
order (3) If on application to the Court for an adoption in respect of a child not being a child who has previously been the subject of an adoption order made by the Court of the Court under this Act, there is proof to the satisfaction Register of the identity of the child to whom an entry in the of of Birt hs relates, any adoption order made in pursuance to the application shall contain a direction to the Registrar w ith cause the entry in the Register of Birt hs to be marked the word Adopted.
(4) Where an adoption order is made by the Court in of an respect of a child who has previously been the subject adoption order made by such Court under this Act, the be marked order shall contain a direction to the Registrar to with the word Re-adopted.
(5) Where an adoption order is made by the Court , the Court shall direct that the order be lodged with the shall Registrar, and on receipt of the order, the Registrar comply with the directions contained in the order with regard to (a) marking an entry in the Register of Birt hs with the word Adopted; and (b) making the appropriate entry in the Adopted Children Register.
and duties 202.
(1) Upon an adoption order being made, all Rights rights, duties, obligations and liabilities of the biological cIp^TcTtyto^tiTy.
in parents in case of a fi rst adoption or adoptive parents in case of subsequent adoption or guardians of the child relation to the future custody, maintenance and education of the child, including all rights to appoint a guardian,,to 569 Children 2022 No.
29 to inherit propeity and to consent or give notice of dissent duties, maniage, shall be extinguished, and all such rights, obligations and liabilities shall vest in and be exercisable child w ere by, and enforceable against, the adopter as if the the a biological child of the adopter and, in respect of tothe matters aforesaid, the child shall stand in relation adopter as a child bom of the adopter.
(2) In any case where two spouses are joint adopters, in the spouses shall, in respect of the matters set out of subsection (1), and for the purposes of the Jurisdiction any Court to make orders as to the legal custody and stand to maintenance of and right of contact with children, each other and to the child in the same relation as they and would have stood if they had been the lawful father in the mother of the child and the child shall stand to them same relation as to a lawful father and mother respectively.
(3) For the purpose of any written law relating to maiTiage for the time being in force in Kenya, an adopter and the child w hom he or she has been authorised to adopt the under an adoption order, shall be deemed to be within of prohibited degrees of consanguinity, and the provisions this subsection shall continue to have ef f ect is notwithstanding that some person other than the adopter child.
authorised by a subsequent order to adopt the same Application of 203.
For the purposes of the Work Injuiy Benefits Act, Work Inj uiy to Benefits A ct.
a child whom a deceased employee had been authorised a adopt under an adoption order shall be deemed to be shall member of the family of the employee, and an adopter he be deemed to be the parent of a deceased child whom had been authorized to adopt.
Orders and of 204.
(1) Where an adoption order is made in respect agreements in parents, aa child previously committed to the care of foster respect of child bom outside ora voluntary childrens institution, a childrens institution, marriage.
this A ct, rehabilitation school by a care order in force under the care order shall forthw ith cease to have effect.
(2) Without prejudice to the right of any person to of recover any arrears of contribution made under an order child the Court, a maintenance order made in respect of a of the under this A ct shall cease to have effect at the date adoption order.
Intestacies and 205.
(1) Where at any time after the making of an testamentary any other i nstm ments.
adoption order the adopter or the adopted child or person dies intestate in respect of any movable or 570 Children 2022 No.
29 immovable property, the property shall devolve in all child of respects as if the adopted child were a biological the adopter.
to (2) The provisions of subsection (1) shall not apply entailed any property which is subj ect to a settlement or an the interest under a disposition made before the date of adoption order in accordance with the law of succession.
(3) In any disposition of movable or immovable property made, whether by instrument inter vivos or by order will, including a codicil, at the date of an adoption (a) any reference, whether express or implied, to the child or children of the adopter shall be constmed as, or as including, a reference to the adopted child; (b) any reference, whether express or implied, to the child or children of the adopted childs natural parents or either of them shall be construed as not being or as not including, a reference to the adopted child; and (c) any reference, whether express or implied, to a person related to the adopted child in any degree shall be construed as a reference to the person who would be related to him or her in that degree if he or she were the child of the adopter.
Provisions 206.
(1) For the purpose of the application of any supplementary to the written law for the time being in force relating to section 196.
205, devolution of any property in accordance with section and for purposes of the construction of any such disposition be as is mentioned in that section, an adopted child shall child or deemed to be related to any other person being the 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 j ointly and that the other person is the child or adopted child of both of them, as brother and sister of the whole blood; and half (b) in any other case, as brother and sister of the blood.
(2) Notwithstanding anything in section 205, tra stees any or personal representatives may convey or distribute movable or immovable property to or among the persons 571 Children 2022 No.
29 entitled thereto without having aseertained that no adoption or order has been made by virtue of which any person is not be may be entitled to any interest therein, and shall not had liable to any such person of whose claim they have but notice at the time of the conveyance or distribution, nothing in this subsection shall prej udice the right of any such person to follow the property, or any property than a representing it, into the hands of any person other purchaser for value without notice, who may have received it.
(3) Where an adoption order is made in respect of a person who has previously been adopted, the previous adoption shall be disregarded, f or the purposes of on section205, in relation to the devolution of any property of the the death of a person dying intestate aft er the date subsequent adoption order and in relation to any disposition of property made aft er that date.
Ef fect of inter 207.
(1) Where a child has been adopted, whether country adoptions before or aft er the commencement of this Act, in any place, and the adoption is one to which this section and other effect written laws apply, the adoption shall have the same as an adoption order validly made under this Act.
(2) Subsection (1) shall apply to an adoption in any place outside Kenya if (a) the adoption order was made by a Court of law in the Commonwealth and any Court of competent j urisdiction 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 child in respect of the custody of the child; and ifi (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 parent or any property of the child 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 otherw ise.
572 Children 2022 No.
29 (3) An adoption order made outside Kenya in favour in of an adopter who is resident in Kenya shall be lodged in the Court within the period and in the manner specified the rules m ade in accordance w ith this A ct.
Restriction on or 208.
(1) No adoption agency, institution, individual adoption public officer may make or facilitate the making of any arrangements.
A ct arrangements for the adoption of a child under this asan unless the agency or institution is duly registered adoption society in accordance with this Act.
(2) An application for registration of an adoption in the society under this Act shall be made to the Secretary manner prescribed in regulations.
(3) Where an application is made, the Secretary shall refer the matter to the Council which may (a) approve 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 has been guilty of breach of any regulations made under this Part; or (ii) it would not be in the public interest to approve the application, having regard to the number of duly registered adoption societies for the time being in active operation in the applicants local limits.
no (4) Where an application for registration is refused, society further application for registration of the adoption may be made under this section within a period of six is months with effect from the date on which the applicant notified of the refusal.
an (5) Where the Council approves the registration of of adoption society, the Council to issue a Certificate Registration in the prescribed form.
(6) The Cert ificate of Registration issued under this from section shall be valid for a period of twelve months Council the date of registration and liable to review by the at the end of the term of registration whereupon the 573 Children 2022 No.
29 Committee shall recommend to the Council that the t welve registration be either renewed for a further term of months or cancelled w ith immediate effect.
(7) An appeal against the decision of the Council to of an recommend reft isal or cancellation of the registration adoption society shall lie to the Cabinet Secretary.
(8) A person aggrieved by the decision of the Cabinet Secretaiy under subsection (7) may institute legal proceedings in court.
Cert ain offences 209.
(1) A person or association, whether incorporated relating to l aw ful or unincorporated) shall not willfully and without adoption.
of a child justification take part in or facilitate the adoption unless the association is registered as an adoption society.
(2) Any person who takes part in the management or or control of a society or association, whether incorporated f or unincorporated, for the purpose of making arrangements the adoption of a child or children, but which is not registered for that purpose, commits an offence and shall, not on conviction, be liable to imprisonment for a term million exceeding ten years or to a fi ne not exceeding two shillings, or to both.
(3) A body corporate which contravenes a section under this Part commits an offence and shall, on million conviction, be liable to a fi ne not exceeding fi ve shillings.
Functions of 210.
The functions of an adoption society shall be adoption societies.
to (a) to make such inquiries and investigations, and cause such report s 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 the proposed adoption of a child; (b) to examine and interview any applicant for an adoption order and make such inquiries and investigations, and to cause such report s as may be prescribed in regulations to be obtained and lodged with the Court f or the purpose of ensuring, so far as may be reasonably practicable, that the applicant is a fi t person to be granted an adoption order; (c) to ensure that the parent or guardian of the child to whom the application relates understands the 574 Childr en 2022 No.
29 effect in relation to his rights as a parent or guardian, and 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 186; (d) to prepare and submit records of children available for adoption to the Council; (e) 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; to (f) with the authority of the Secretaiy , but subj ect the societys ability, to take care and possession of any child whose parent or guardian is desirous of giving the child up for adoption pending arrangements for adoption; (g) 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 act as such; of (h) to make provision for the care and supervision children who have been placed by their parents or guardians under the adoption societys care; all (i) to maintain a register and records in respect of 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 (j) to perform such other duties as may be prescribed under this Act or any other written law.
Adoption 211.
(1) A member or officer of an adoption society, proceedings to be confidential.
and a person having any offi cial duty under or being and employed in the administration of this Act, shall regard the deal with all documents and information relating to such adoption or proposed adoption of any child, or to any or to the child, or to the parent or guardian of such child, proposed adopter of such child, as secret and confidential.
(2) A person in possession or control over any and who doeuments or records referred to in subsection (1), at any time communicates such infonnation or anything 575 Children 2022 No.
29 therein contained, or makes any comments to any third person other than the (a) the Court, the Council, the Cabinet Secretary, Registrar 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, otherwise than for the puiposes of this Act, commits an offence and is liable, on conviction, to imprisonment for a term not exceeding two years, or to a fi ne not exceeding two hundred thousand shillings, or to both.
(3) Without prejudice to subsection (2), nothing contained in this section shall apply to the communication interest of any document or infonnation in good faith in the or of the child to whom the records relate or of the parent proposed adopter of the child.
a (4) An offi cer or member of an adoption society, and person engaged in any offi cial duty as a servant or agent of of any agency or institution charged with the administration any Court this Part, shall not be required to produce before or any documents referred to in this section, or to divulge communicate to any Court any information relating thereto, except as may be necessary for the purpose of or (a) carrying into effect the provisions of this Part ; (b) in order to bring or assist in the course of a prosecution of any person for any offence under this Part.
(5) The Cabinet Secretary may, by order in writing, exempt any person by name or offi ce from the provisions of subsection (2).
Prohibition of 212.
(1) Subj ect to subsection (2) certain payments.
(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 I 576 2022 Children No.
29 child any payment or other reward in consideration of the adoption of any child under this A ct; or (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 toa imprisonment for a term not exceeding three years or fi ne not exceeding one million shillings, or to both.
(2) Subsection (1) shall not apply to (a) 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; (b) 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; (c) 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 the care and possession of a person who has adopted or proposes to adopt him or her, whether under an adoption order or any other order; (d) any payment made to an advocate representing any party in or in connection with an application for an adoption order, in respect of such application; (e) any voluntary contribution made by any person in good faith to, and declared in the books of, an adoption society; or (f) any fee prescribed by the Cabinet Secretaiy as payable to an adoption society in discharge of any of its functions under the Act or any other written law.
Restriction on 213.
(1) A person shall not knowingly publish or cause advertisement.
to be advertised any matter indicating that 577 Children 2022 No.
29 up (a) a parent or guardian of a child wishes to give the child for adoption; (b) a person wishes to adopt a child; (c) any person, not being an adoption society, is willing to make arrangements for the adoption of a child; or (d) anything that is, considering the totality of the circumstances, demeaning or undermines the personal dignity of a child.
(2) Any person who contravenes subsection (1) to commits an offence and shall, on conviction, be liable or to imprisomnent for a teim not exceeding twelve months or toa fine not exceeding two hundred thousand shillings, both.
Offences under 214.
Where any offence under any regulations made this Part.
to under this Act committed by a body corporate is proved have been committed w ith the consent or connivance of, or director, to be attributable to any neglect on the part of, any officer manager, member of a committee, secretary or other shall of the body, he or she, as well as the body corporate, be deemed to have committed that offence and shall be under liable to the respective penal sanctions prescribed this A ct.
Regulations, 215.
The Cabinet Secretaiy shall make regulations for Part , the better caixying into effect the provisions of this f or and, without prejudice to the generality of this section, any of the following purposes (a) regulating and maintaining supeiwision over the activities of adoption societies and persons or associations purport ing to assist in making arrangements for the adoption of children; (b) regulating and maintaining supeiwision over the activities of persons or associations purport ing to assist in making airangements for kafaalah and the manner in which such arrangements shall be conducted; (c) regulating the making of international adoptions and prescribing safeguards therefor; (d) prescribing the manner in which arrangements for adoption shall be conducted; or 578 Children 2022 No.
29 (e) prescribing any matt er required to be prescribed under this Part.
Rules of Court.
216.
The Chief Justice may make rules of Court directing the manner in which applications may be made and judicial proceedings undertaken under this Part.
PART XV CHIL DREN IN CONFL ICT W ITH THE LAW of 217.
(1) Notwithstanding the provisions of Part II Procedure Code.
the Criminal Procedure Code, a Childrens Court may try a child for any offence except the offence of murder.
the (2) Reference to Subordinate Courts of any class in First Schedule to the Criminal Procedure Code includes a Childrens Court.
Assessment of a 218.
(1) A police officer who arrests, serves a child on arrest.
summons or issues w ith a writt en notice to child shall notify the parent or guardian of the child and the Secretary or an authorised officer within twenty four hours.
(2) A Childrens Officer who receives a notification to the under subsection (1) shall assess and submit a report police officer on (a) a social inquiry on the child to ascertain the social, economic, personal circumstances, and the needs of the child; (b) the childs tendency to engage in activities which is in conflict with the law; and (c) the surrounding facts and circumstances leading to the childs conduct in conf lict w ith the law.
(3) A Childrens Officer shall assess a child under is subsection (1) in an environment that is secure and friendly to a child that may include a room in a police station, the childrens Court or the offices of the Secretary.
(4) A Childrens Officer shall assess a child in a manner that is conducive to ease and comfort a child and shall have regard to the best interest of a child.
(5) The assessment of a child for purposes of this section shall be carried out in accordance w ith the Fift h Schedule.
- I ! 579 Children 2022 No.
29 Power to remit 219.
(1) Subject to any rules or directions made or cases to court, Childrens Court.
issued by the Chief Justice, where it appears to a other than a Childrens Court, at any stage of the an offence proceedings that a child is charged before it with ap er son other than murder and is not charged together with court or persons of or above the age of eighteen years, the may, and where within the area of a subordinate courts having jurisdiction there is established a Childrens Court ca se toa jurisdiction, the subordinate court shall remit the Childrens Court; Provided that nothing in this subsection shall be the construed as preventing a court, if it considers in circumstances, including the stage reached in the with proceedings, that it is proper so to do, from proceeding hearing and determination of the charge.
(2) Wliere in accordance with the provisions of toa subsection (1) of this section, a case is remitted is childrens court aft er a fi nding that the child charged the guilty of the offence, the Childrens Court to which any case has been remitted may deal with the offender in been way in which it might have dealt with him if he had tried and found guilty by that court.
(3) No appeal shall lie against an order of remission shall made under this section, but nothing in this section on affect any right of appeal against the verdict or fi nding which such order under section 194 of this Act, he may appeal against such fi ndings to the Court of Appeal.
(4) A court by which an order remitting a case to a such Childrens Court is made under this section may give the directions as appear to be necessary with respect to or bond custody of the offender or for his release on bail and until he can be brought before the Childrens Court, shall cause to be transm itted to the clerk of the Childrens and Court a certifi cate setting out the nature of the offence case has stating the stage reached in the case, and that the under been remitted for the purposes of being dealt with this section.
a (5) Where, pursuant to the provisions of section 182, court other than a Childrens court hears a charge against a this A ct as child, the court shall apply all the provisions of relate to the safeguards to be accorded a child offender.
580 Children 2022 No.
29 Rights of a child 220.
(1) A child offender has the right to privacy of fender.
during arrest, the investigation of the offence and at any other stage of the cause of the matter.
(2) A person shall not in the course of arrest, a child investigation or trial of an offence connected with matter, offender, or at any other stage of the course of the to the release any information for publication that may lead i dentifieation of the child offender.
(3) Any person who contravenes subsection (2) commits, an offence and is liable on conviction to a fi ne not exeeeding fi ve hundred thousand shillings or to to imprisonment for a term not exceeding 12 months, or both.
Criminal liability 221.
(1) A person under the age of twelve years shall of a child.
.
not be eriminally responsible for any act or omission.
(2) A child who commits an offence while under the age of fourteen years shall be presumed not to be capable the of differentiating between right and wrong, unless Court is satisfi ed on evidence to the contraiy.
(3) The provisions of this Part shall apply to a person who reaches the age of eighteen years before proeeedings of this instituted against them pursuant to the provisions Aet have been coneluded.
Right of a child to 222.
(1) Every child shall be afforded an opportunity be heard in to be heard in proceedings affecting the child, either proceedings.
directly or through a representative.
(2) Pursuant to the provisions of Art icle 50 of the to a fair Constitution, every child is entitled to the right the trial, which shall include the presumption of innocence, him or right to be notifi ed of the charges preferred against the her, the right to legal representation, the right to and presence of a parent or guardian, the right to present the right examine witnesses, the right to remain silent, and to appeal at all stages of the proceedings.
to (3) Parents, guardians and fi t persons have the right whenever assist the child in proceedings under this Act, and unless possible, to part icipate in decisions affecting them, the child.
their part icipation is not in the best interest of (4) The State shall put in place mechanisms to with the facilitate appropriate and effective communication ehild in eonf liet w ith the law in order to ensure the childs 581 Children 2022 No.
29 the participation in the judicial proceedings, including and provision of interpreters, intermediaries, augmentative alternative modes of communication in appropriate cases.
Detention of 223.
(1) Institutionalization and detention of children children.
asa in conflict with the law pending trial shall be used as f ar means of last resort, and detention pending trial shall, as is reasonably practicable, be replaced by alternative measures, such as placement with a family or in an educational setting or home.
take (2) A child shall be detained under conditions that and full account of the childs particular needs, status of special needs according to their age, gender and type offence, as well as mental and physical health or disability, of and protect them from harmful influence and situations risk.
Procedure in cases 224.
A child in conflict with the law may be subj ected of children in conflict w ith the to either of the following processes l aw.
(a) diversion in accordance with this Act; or (b) j udicial process in accordance with the Criminal Procedure Code, subj ect to the provisions of this Part.
Consideration of 225.
(1) Every court in dealing with a child who is welfare.
of brought before it shall have regard to the best interests removing the child and shall, in a proper case take steps for him or her from undesirable surroundings and for securing that proper provision may be made for his or her maintenance, education and training.
i ll , (2) Every child in remand or custodial care who is or who complains of illness, whether physical or mental, )! I ' shall be examined promptly by a qualified medical practitioner and treated.
Obj ects of 226.
The objects of diversion shall be to diversion.
(a) make use of alternative methods of holding children accountable for their unlawful acts or omissions resulting in hann to other persons; (b) promote the rehabilitation of the child, and re integration of the child into the family and community; 582 Children 2022 No.
29 (c) provide an opportunity to those prejudicially affected by the unlawful conduct of the child to express their views concerning such conduct; (d) encourage symbolic restitution by the offending child as compensation for the harm caused to the aggrieved person; (e) promote reconciliation between the child and the person or community affected by the harmful conduct of the child; and (f) minimize stigmatization of the child, and prevent adverse consequences likely to arise from his or her subj ection to the criminal justice system.
When to consider or 227.
(1) Notwithstanding any provision of this Act diversion.
any other written law, any authorised officer or judicial officer dealing with any matter in which a child is suspected of, or charged with, the commission of an under offence shall, where the child is eligible for diversion f or this Act, in the first instance, consider that child diversion.
(2) A child is eligible for diversion if (a) there is compelling evidence that the child committed the alleged offence; (b) the child fr eely and voluntarily admits responsibility, and no intimidation or pressure has been used to induce that admission; (c) the offence which he or she is suspected to have committed or charged with is not a capital offence; (d) the child and his or her parent or guardian, or other person exercising parental responsibility over the child, consent to diversion; of (e) the concerns of the victim or the victims next kin have been considered; and (f) the child is a fi rst or second offender.
Pre liminary 228.
(1) A preliminary inquiry shall be held in respect made of every child prior to plea in accordance with rules under this section, except where the child is below the age.
' ! of twelve years, or the matter has been withdrawn.
583 Children 2022 No.
29 (2) A child's appearance at a preliminary inquiry shall as be regarded as his or her fi rst appearance in a Court contemplated in the Criminal Procedure Code.
(3) The objectives of a preliminary inquiry shall be to (a) eonsider the assessment report of the childrens offi cer, probation offi cer and the Director of Public Prosecutions, particularly with reference to (i) the age or estimated age of the ehild, if the age of the ehild is unknown; (ii) the criminal responsibility of the child if the child is between the age of twelve years and fourteen years; and (iii) whether a further and more detailed assessment of the child is required; (b) establish whether the matter can be diverted before plea; (c) where applicable, identify a suitable diversion option; (d) establish whether the case should be transferred to a Children's Court; to (e) ensure that all available information relevant the child, his or her cireumstances, and the offence is eonsidered in order to make a decision on diversion and placement of the child; (f) ensure that the views of all persons present are considered before a decision is taken; or (g) encourage the participation of the child and his her parent, guardian or fi t person in decisions concern ing the child; and (h) determine the release or placement of the child pending (i) conclusion of the preliminary inquiry; (ii) appearance of the child in a Court; or (iii) referral of the matter to the children's Court.
584 Children 2022 No.
29 (4) The Chief Justice may make Rules of procedure Section.
for the conduct of a preliminary inquiry under this Determination of 229.
If the age of a child is uncertain, the magistrate a childs age.
shall estimate the childs age based on (a) a previous determination of age by a magistrate under this Act or any other written law; (b) statements made by a parent, guardian or any other person likely to have direct knowledge of the age of the child, or a statement made by the child in that regard; (c) a baptismal certificate, school registration form or school report, or other information of a simitar nature; (d) an estimation of age made by a medical practitioner; or (e) a report of a social worker, children officer or other authorised offi cer in that regard.
Levels of 230.
(1) The Magistrate conducting the preliminary diversion.
of inquiry contemplated under section 228 may apply any who is the diversion options under this section to a child eligible for diversion.
(2) There shall be three levels of diversion ranging from the lowest to the highest option as follows (a) level one diversion options which shall include (i) an oral or written apology to a specified person or persons; (ii) a formal caution in the prescribed manner with conditions; (iii) placement under a supervision and guidance order for a period not exceeding three months; (iv) placement under a reporting order for a period not exceeding three months; (v) placement under a family time order for a period not exceeding three months; (vi) placement under a good-behavior order for a period not exceeding three months; (vii) the issue of an order prohibiting the child f rom visiting, frequenting or appearing at a specified place or places; 585 Children 2022 No.
29 (viii) refeir al to counseling or psychotherapy for a period not exceeding three months; (ix) compulsory attendance at a specified centre or place for a specified or educational puipose for a period not exceeding five hours each week, for a maximum of three months; (x) symbolic restitution to a specified person, persons, group or institution; (xi) restitution of a specified obj ect to a specified victim or victims of the alleged offence where the obj ect concerned can be return ed or restored; or (xii) such other diversion options as may be prescribed in Regulations; (b) l evel two diversion options which shall include (i) the options referred to under paragraph (a) but the maximum periods contemplated in that subsection shall, for the puiposes of this subsection, be extended to six months; (ii) compulsory attendance at a specified centre or place f or a specified vocational or educational purpose f or a period not exceeding eight hours each week, for a period not exceeding six months; (iii) performance of community service in accordance with the provisions of the Community Service Orders Act, 1998; (iv) provision of a specified sum or benefit to a specified victim or victims; (v) payment of compensation up to a maximum of five thousand shillings to a specified person, persons, group or institution; (vi) referral to appear at a family group conference; or (vii) a combination of any two or more of the options specified in this subsection; (c) l evel three options which shall include (i) the options referred to in paragraph (b), but the maximum periods contemplated in that 586 Children 2022 No.
29 subsection shall, for the purposes of this subsection, be extended to twelve months; (ii) referral to a programme that does not exceed six months, and which has a residential element that does not exceed thirty-five days in total, and twenty-one consecutive days during the operation of the programme; (iii) performance of some service without remuneration f or t he b enefit of t he community in accordance with the Community Service Orders Act, 1998; or (iv) compulsory attendance at a specified centre or place for a specified vocational or educational purpose for a period not exceeding six months, and for not more than thirty-five hours in any one week.
Power of Court in 231.
Upon ordering diversion, the magistrate diversion.
a conducting the inquiry or proceedings shall identify suitable childrens officer, a probation officer, or any other person to monitor the child's compliance with the identified diversion option.
a Family Group 232.
(1) If a child has been referred to appear at family group conference, a children officer appointed by at least the magistrate conducting the inquiry shall, within such fourteen days, but not more than twenty-one days aft er referral, convene the conference by (a) setting the time and place of the conference; and (b) taking steps to ensure that all persons who are required to appear at the conference are given adequate notice of the time and place appointed f or the conference.
(2) The following persons shall attend a family group conference (a) the child and his or her parent, guardian, or other fit person exercising parental responsibility over the child; (b) a children officer; (c) a probation officer; (d) the Director of Public Prosecution; and (e) the victim of the alleged offence.
587 Children 2022 No.
29 (3) The following persons may attend a family group conference (a) any person requested by the child; (b) the legal representative of the child; (c) a member of the community in which the child ordinarily resides; and (d) a counsellor or psychologist at (4) If a family group conference fails to take place to the time and place set for the conference pursuant subsection (1), the children officer shall, in consultation with the Director of Public Prosecutions, convene another conference within fourteen days.
(5) The primary f unction of the f amily group conference shall be to discuss the offence comm itted by a child in confl ict with the law, so that the child may it and understand the impact of their offence, acknowledge obtain support for the reform of his or her behavior.
(6) The participants in a family group conference shall the act in accordance with the procedure agreed on by all the child parties, who may agree to such a plan in respect of as they consider appropriate.
(7) The plan contemplated in subsection (6) may include all or any of the following matters (a) the application of any diversion option contemplated in this Part; or her (b) any other plan appropriate to the child, his or family and local circumstances that is consistent with the principles contained in this Act.
(8) A plan contemplated under subsection (7) shall and (a) specify the obj ectives in relation to the child the period within which they are to be achieved; to be (b) contain details of the services and assistance provided for the child, the parent, guardian or other fi t person having parental responsibility over the child; (c) specify the person or organisations mandated to provide such services and assistance; the (d) state the responsibilities of the child and of child's parent or guardian, or fi t person having parental responsibility over the child; 588 Children 2022 No.
29 the (e) state personal obj ectives for the child and for child's parent, guardian or fit person; and (f) i nclude such other matters relating to the education, vocational training, recreation and welfare of the child as are relevant.
and (9) The children officer shall record the details of, reasons for, any plan agreed to at the family group to the conference, and shall furnish a copy of the record child, the magistrate conducting the preliminaiy inquiry and the D irector of Public Prosecutions.
w ith (10) In the event of the childs failure to comply any condition of the plan agreed on at the family group the conference, the officer or other person shall notify of magistrate conducting the inquiry and the Director which Public Prosecutions, in writing, of such failure, in case the matter shall be set down for hearing at the Childrens Court.
(11) If the participants in a family group conference and do not agree on a plan, the conference shall be closed the children officer shall remit the matter to the magistrate conducting the inquiry for consideration of an alternative diversion option.
(12) The proceedings at a family group conference shall be confidential, and no statement made by any in participant in the conference may be used as evidence any subsequent Court proceedings.
Assistance to 233.
The Childrens Court shall at the commencement child offender in of the proceedings in court , infomi the child in a language court that the child understands of (a) the right to remain silent; (b) the right to have a parent, guardian, close relative or probation officer present at the proceedings; (c) the right to legal representation; and (d) the right to legal aid.
234.
The Chief Justice shall make Court rul es of practice and procedure in diversion.
Guarantees to a 235.
Every child accused of having violated any rule child accused of of law shall an offence.
(a) be promptly and directly infonmed of the charges against him or her; 589 2022 Children No.
29 (b) be provided by the state with legal assistance in the preparation and presentation of his or her defence; (c) have the matter determined without delay; (d) not be compelled to testify or make a confession in respect of the alleged offence; (e) have free assistance of an inteipreter if the child cannot understand or speak the language in which the proceedings are conducted; (f) if found guilty of the offence, have the right to apply for review of decisions and any punitive measures imposed by the trial Court; (g) have his or her privacy respected at all stages of the proceedings; (h) if the child has a disability, be accorded reasonable accommodation in respect of his or her special needs and respect for his or her personal dignity on an equal basis with others; and (i) if the child is not released on bond, he or she shall be placed in a Children Remand Home or Child Protection Unit.
the Duty to provide 236.
(1) In dealing with a child brought before it, Court shall have regard to the best interest of the child, and shall take appropriate steps to remove the child from any undesirable surroundings, and to ensure that proper provision has been made for the childs maintenance, education and training.
(2) If a child held in remand or custodial care becomes whose ill, or complains of any ailment, the officer under child is charge the child is entrusted shall ensure that the examined by a competent medical practitioner and accorded appropriate medical care.
(3) A child with special needs placed in remand or custodial care shall (a) be treated fairly; (b) receive no less care, protection, assistance, treatment and training, than other children; and (c) be given special attention to their personal and special need.
590 Children 2022 No.
29 (4) The parents and guardian of a child offender to placed in remand or custodial care shall have the right child.
access the child in the interest and wellbeing of the Words 237.
(1) The words conviction and sentence shall conviction and not be used in relation to a child being dealt with by the sentence not to be used of child Childrens Court.
(2) Without prejudice to the generality of subsection (1), any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of a child, be guilty construed as including a reference to a person found such a of an offence, a fi nding of guilt or an order upon fi nding, as the case may be.
Restriction on 238.
(1) No court shall order the imprisonment of a punishment.
child.
(2) Notwithstanding the nature of any offence punishable by death, no court shall impose the death an penalty on a child on a fi nding of guilty for such offence.
(3) A Childrens Court shall not make any order to send a child under the age of twelve years to a rehabilitation school.
(4) The performance of community service under an order of theC ourt shall be in accordance with the Community Service Orders Act, 1998.
Methods of the 239.
(1) Where a child is tried for an offence, and dealing with deal w ith Court is satisfi ed as to their guilt, the Court may children in conflict w ith the the case in one or more of the following ways l aw.
(a) discharge the child under section 35(1) of the Penal Code; a (b) discharge the child on his or her entering into recognisance, with or without sureties; (c) make a probation order against the offender under the provisions of the Probation of Offenders Act; (d) commit the offender to the care of a fi t person, whether a relative or not, or a charitable childrens institution willing to undertake the care of the offender; (e) if the child is between twelve years and fi ft een years of age, order that the child be sent to a 59 ] 2022 Children No.
29 rehabilitation institution suitable to the childs needs and circumstances; (f) order the child to pay a fine, compensation or costs, or any or all of them, having regard to the means of the childs parents or guardian; of (g) in the case of a child who has attained the age sixteen years, deal with the child in accordance with the Borstal Institutions Act; (h) place the child under the care of a qualified counsellor or psychologist; (i) order that the child be placed in an educational institution or vocational training programme; (j) order that the child be placed in a probation hostel under the provisions of the Probation of Offenders Act; (k) make a community service order; (1) make a restorative justice order; (m) make a supervision order; (n) make any other orders of diversion provided for in this Part ; or as (o) deal with the child in any other lawful manner may be provided under any written law.
(2) A child against whom a community service order and has been made may, having regard to the childs age development, be required to perfonu the service without under remuneration, or for the benefit of the community, the supervision or control of an organisation or institution identified by the probation officer.
(3) In addition, or as an altern ative, to the orders ona prescribed in subsection (2), the Court may impose j ust.
child such other sanctions as the Court may consider (4) Any community service perfoimed by a child shall be for a maximum period of fift y hours, and shall be completed within a period not exceeding six months.
(5) If a child fails to comply with any condition as imposed on diversion, the Court shall make such orders the child to it considers fit, including an order directing that be subj ected to an alternative level of diversion.
592 2022 Children No.
29 (6) The orders imposed on a child upon a finding of the guilt shall be proportionate to the circumstances of and child, the nature of the offence and the public interest, adult a child shall not be treated more severely than an would have been treated in the same circumstances.
Mental treatment.
a 240.
If it appears to the Court on the evidence of a child medical practitioner or professional counsellor that requires, or may benefit from, mental treatment or a professional counselling, the Court may, when making probation order against him, require that the child at undergoes mental treatment or professional counselling or the hand or under the direction of a medical practitioner and professional counsellor, subject to review by the Court , as a condition of the probation order.
Power to order an 241.
(1) In any case where a child is charged with parent to pay be f ines, etc.
offence for which a fine, compensation or costs may the imposed, and the Court is of the considered view that case would best be met by imposition of af ine, other compensation or costs, whether with or without any punishment, the Court shall order that the f ine, the compensation or costs imposed or awarded be paid by childs parent or guardian.
(2) Where a child is charged with an offence, the Court may order his or her parent or guardian to give security for his or her good behaviour.
a (3) An order under this section may be made against parent or guardian who, having been required to attend shall not before the Court , has failed to do so, but the Court or make any order in that regard without giving the parent guardian an opportunity to be heard.
(4) Any sums imposed and ordered to be paid by a of any parent or guardian under this section, or forfeiture fr om security required under this Part, may be recovered him or her in a like manner as if the order had been made on conviction of the parent or guardian of the child.
(5) A parent or guardian of a child may appeal to the High Court against an order made by a Childrens Court under this section.
Special police 242.
A special police unit shall be designated by the unit.
Inspector General to 593 2022 Children No.
29 (a) deal with children matters; (b) prevent and control child offences; (c) apprehend child offenders; (d) investigate child offences; and (e) perform such other functions as may be referred to the unit by this Act or by regulations under this Act or by any other enactment.
in 243.
The Chief Justice may make rules of court of a offencL directing the manner in which proceedings in respect committed by a child accused of having infringed any l aw shall be conducted.
PART XVI M ISCELLANEOUS to the 244.
(1) A person aggrieved by any act of the Appeals Secretary or an authorised officer in exercise of powers conferred by this Act may appeal to the Cabinet Secretary within fourt een days.
(2) An appeal under subsection (1) shall be made in the prescribed fonn.
(3) The Cabinet Secretary shall make regulations prescribing the procedure of appeal under this section.
Code of conduct.
245.
The Council shall develop a code of conduct for itsm embers and staff.
General penalty, 246.
A person convicted of an offence under this Act to for which no other penalty is prescribed shall be liable or imprisonment for a term not exceeding twelve months, or to a fine not exceeding two hundred thousand shillings, to both.
General power to 247.
Subj ect to the provisions of this Act, the Cabinet make regulations.
Secretary may make regulations (a) to prescribe anything that may be prescribed under this Act; or (b) generally f or the better carrying out of the provisions of this Act.
Grants and 248.
(1) There shall be paid out of moneys provided expenses of the by Parliament and County governments Cabinet Secretary.
(a) such sums on such conditions as the Cabinet Secretary may prescribe towards 594 2022 Children No.
29 (i) the expenses incurred by rehabilitation schools, child rescue centres, child protection centres and childrens remand homes; or (ii) expenses incurred by the Secretary in the administration of services to children in need of care and protection; (b) such grants or grants in aid to adoption societies and foster parents or charitable childrens institutions as may be authorised by the Cabinet Secretary fr om time to time; or (c) any other expenses incurred by the Cabinet Secretary and the Secretary in the administration of this A ct.
funds (2) A childrens institutions that receives public of under this Act shall keep proper books and records of account of the income, expenditure, assets and liabilities the institution with respect to public funds in accordance No.
18 of 20 12 with the Public Finance Management Act.
(3) The accounts of the children institutions that receives public funds shall be prepared, audited and the reported upon in accordance with the provisions of Public A udit A ct.
No.
34 of 20 15.
Repeals.
249.
(1) The Children Act, 2001 is repealed.
No.
8 of 200 1.
(2) Without prejudice to the generality of the General application of section 3 of the Interpretation and inthe Provisions Act, the transitional provisions set out Seventh Schedule shall have effect upon the commencement of this A ct.
Consequential 250.
The Acts specified in the Sixth Schedule are Amendments.
amended in the manner specified in that Schedule.
vJhoi, 595 2022 Children No.
29 FIRST SCHEDULE Section 8(1) BEST INTEREST CONSIDERATIONS background and 1.
The age, maturity, stage of development, gender, any other relevant characteristic of the child.
ailment or 2.
Distinct special needs (if any) arising fr om chronic disability.
and/or 3.
The relationship of the child with the child's parent(s) affect the child's guardian(s) and any other persons who may significantly welfare.
a meaningful 4.
The preference of the child, if old enough to express preference.
living 5.
The duration and adequacy of the child's current arrangements and the desirability of maintaining continuity.
for the child; 6.
The stability of any proposed living arrangements capacities to give 7.
The motivation of the parties involved and their the child love, affection and guidance.
school and 8.
The child's adj ustment to the child's present home, community.
and encourage 9.
The capacity of each parent or guardian to allow frequent and continuing contact between the child and the other parent and/or guardian(s), including physical access.
10.
The capacity of each parent and/or guardian(s) to cooperate or to learn to cooperate in child care.
cooperation and 11.
Methods for assisting parental and/or guardian to use those resolving disputes and each parent's/guardians willingness methods.
12.
The effect on the child if one parent/guardian has sole authority over the child's upbringing.
(s), 13.
The existence of domestic abuse between the parents/guardian the emotional stability in the past or currently, and how that abuse affects and physical safety of the child.
14.
The existence of any history of child abuse by a parent and/or as the child.
guardian(s); or anyone else residing in the same dwelling the child is 15.
Where the child is under one year of age, whether being breast-fed.
596 2022 Children No.
29 f or a sex 16.
The existence of a parent's or guardian(s) conviction Offences A ct.
offense or a sexually violent offense under the Sexual or guardian, 17.
Where there is a person residing with a parent whether that person Offences (a) been convicted of a crime under this Act, the Sexual Act, the Penal Code, or any other legislation, if the person (b) has been adjudicated of a juvenile offence which, would had been an adult at the time of the offence, the person have been convicted of a felony.
effect on 18.
Any other factor which may have a direct or indirect the physical and psychological well-being of the child.
I - I.
, ' 5 " i 597 Children 2022 No.
29 SECOND SCHEDULE (Section 43(4)) CONDUCT OF BUSINESS AND AFFAIRS OF THE COUNCIL in each calendar 1.
(1) The Council shall have at least four meetings one meeting of the year, and not more than four months shall pass between Council and the next meeting.
fourteen days (2) The Chairperson may at any time, and shall within the members of the of receipt of a written request by at least three of Council, convene a special meeting of the Council.
the Council at 2.
The Chairperson shall preside at every meeting of which the Chairperson is present, and in the absence of the Chairperson, who shall, with the members present shall elect one of their number thereat, have all the respect to that meeting and the business transacted powers of the Chairperson.
five, three of 3.
The quorum for a meeting of the Council shall be whom shall be (a) the Chairperson or Secretary to the Council; f or Children (b) the Principal Secretary, in the Ministry responsible affairs; and in section 43 (f) (c) a representative of any of the sectors specifi ed or (g) a majority of the 4.
The decisions of the Council shall be carried by of votes the members present and voting and in the event of an equality Chairperson shall have a casting vote.
Council or any 5.
(1) If any person is present at a meeting of the of consideration is a committee at which any matter which is the subj ect is directly or indirectly matter in which that person or that persons spouse as soon as reasonably interested in a private capacity, that person shall such interest practicable aft er the commencement of the meeting declare otherwise directs, take and shall not, unless the Council or the committee on, any question part in any consideration or discussion of, or vote connected to such matter.
the m inutes of the (2) The disclosure of interest shall be recorded in meeting at which it is made.
shall be 6.
Subj ect to paragraph 2, no proceedings of the Council invalid by reason of a vacancy in the Council.
Council shall be 7.
All instruments made by, and all decisions of the signifi ed under the hand of the Chairperson or secretary.
the Council may 8.
Except as is otherwise provided by this Schedule, regulate its own proceedings.
598 Children 2022 No.
29 THIRD SCHEDULE (S.
66(2), 144 (aa), 174, 186(6) OFFENCES DISQUALIFYING APPLICANTS FROM ADOPTION 1.
Any sexual related offence.
2.
Any offence related to robbery.
grievous bodily 3.
Indecent assault the involving the infl iction of harm.
y ears 4.
Indecent assault on a person under the age of 16 5.
Any offence related to drug trafficking.
6.
Any offence relating to of ammunition, fi rearms.
(a) the dealing in or smuggling explosives or armament; (b) the possession of a fi rearm, explosives or armament extortion, 7.
Any offence relating to exchange, control, corruption, fr aud, forgery or uttering or (a) involving amounts of more than KShs.
50,000.00; referred (b) any conspiracy or incitement to commit any offence the to in this Schedule or an attempt to commit any of offences referred to in this Schedule.
8.
Any offence relating to traffi cking in persons.
599 Children 2022 No.
29 FOURTH SCHEDULE Section 146(3)) OFFENCES REQUIRING RECORD AND PRESERVATION OF INFO RM ATI ON WITH RE GA RD TOTHE CONDIT ION OF THE CHIL D Offences under the Penal Code (Cap.
63) Section 146 Defilement of idiots or imbeciles Section 151Detention of females for immoral purposes Section 157Conspiracy to defi le Section 162 ^Unnatural offences Section 250 Common assault Section 251^Assault causing actual bodily harm Offences under the Sexual Offences Act, 2006 600 Children 2022 No.
29 FI FTH SC HEDULE Section 218 (5) PART AA SSESSM ENT OF A CHIL DWHO IS IN CONFLICT W ITH TH ELAW1.
A child shall be present at the childs assessment, and nothing presence of the parent, prevents the childrens officer from requiring the child.
guardian or other fit person at the assessment of the assessment of a2.
A childrens officer may, at any time before the parent or guardian of the child, issue a notice in the prescribed manner to a the child.
child or a fit person to appear at the assessment of be delivered by a3.
A notice contemplated in subparagraph (2) shall in the prescribed police offieer upon the request of the childrens officer m an ner.
(2) may 4.
A person who has been notified pursuant to subparagraph and if the apply to the childrens officer not to attend the assessment, the exemption, he or childrens officer exempts the person from attending she shall indicate so in writing.
not exempted 5.
A person notified in terms of subparagraph (2) and assessment, commits in terms of subparagragh (4) who fails to attend the fi ne not exceeding fi ft y an offence and shall be liable upon conviction to a thousand shillings or to imprisonment for a term not exceeding three months, or both.
in the prescribed 6.
A childrens officer may request a police officer, manner, to (a) obtain any relevant documentation required for the completion of assessment of a child; (b) l ocate a child's parent or guardian or a fi t person.
7.
The childrens officer shall make every effort to locate a parent or the assessment of a guardian or fi t person for the purposes of concluding child.
child 8.
A childrens offi cer shall, in a language that the understands (a) explain the purpose of assessment to the child; (b) inform the child of his or her rights in the prescribed manner; be follow ed in (c) explain to the child the immediate procedures to terms of this Act; (d) ascertain whether the child understands the i nformation r esponse; provided under(a), (b), (c) and record the childs 601 2022 Children No.
29 deteiTnine the (e) estimate the age of the child if it is uncertain to criminal responsibility of the child; ift he childrens officer is certain that the child (f) is above the age the child is of twelve years, or understands right from wrong if below the age of fourteen, determine if the child was used by an adult to commit the offense; (g) gather information relating to any previous convictions, any the child; previous diversions, and any pending charges against or detention (h) foiTnulate recommendations on the possible release and placement of the child; f ormulate recommendations on whether the matter should be (i) and referred to a childrens Court, together with reasons; 0 any other information that the childrens officer considers the child, or important for the promotion of the best interests of any other obj ects of this Act.
the assessment of a9.
The childrens officer may, at any stage during child, consult w ith (a) the Director of Public Prosecutions or a prosecutor duly designated by the Secretary; the summons, (b) the police officer who arrested the child, sei-ved investigation issued the written warning or is responsible for the of the matter; or the (c) any person who may provide infonnation necessary for assessm ent.
10.
The childrens officer may contact or consult any person who is not present at the assessment and who has any information relating to the the child shall assessment, and if such additional infonnation is obtained, be infonned of such information.
of the ' 11.
The childrens officer shall encourage the participation child during the assessment process.
documentation 12.
The assessment report together with any relevant to the inquiry shall be submitted by the childrens officer to the magistrate conducting the preliminary inquiry before the child's appearance at the preliminary inquiry.
13.
The childrens officer shall complete an assessment report in accordance with the Part B of this Schedule.
602 2022 Children No.
29 FIFTH SCHEDULE Section 218 (5) PA RTBA SSESSM ENTFO RM 1.
Personal details of the Child: (1) Name of Child- (2) Gender of Child (3) Age of child (4) Means through which age of child is ascertained 2.
Details on the following (a) Where and with whom the child lives; (b) Whether the child has been receiving formal education; i nf orm ation (c) Whether the child has a disability, and in particular, regarding a childs mental health; sexual abuse (d) Whether the child has been subj ected to physical or abuse; (e) Whether the child has been exposed to domestic violence; be hazardous (f) Whether the child is engaged in any work likely to harmful to the or to interfere with the child's education, or to be or social child's health or physical, mental, spiritual, moral development; (g) Whether the child is displaced as a consequence of war, civil disturbances or natural disasters; (h) Whether any of the offences mentioned in the Fourteenth if he is a Schedule have been committed against the child, or such member of the same household as a child against whom offence has been committed, or is a member of the same an household as a person who has been convicted of such offence against a child; (a) whether the child is engaged in the use of, or trafficking of drugs or any other substance that may be declared harmful by the Cabinet Secretary responsible for health; (b) the social circumstances of the child; any (c) infonnation relating to any previous convictions, the previous diversions or any pending charges against child; (d) recommendations on the next steps ineluding: 603 2022 Children No.
29 (i) where appropriate, prospects of diversion of the matter; or (ii) possible release of the child into the care of a parent a guardian or a fit person, if the child is in detention; (iii) the transfer of the matter to a children's Court, stating reasons for such a recomm endation.
604 2022 Children No.
29 SIXTH SCHEDULE (Section 250) CONSEQUENTIAL AMENDMENTS Amendments of A ct 1.
Section 7 of the Births and Deaths Registration section 7 of Cap.
149.
is amended by inserting the following new subsection immediately aft er subsection (1) 46 (2) The Register under subsection (1) shall include 99 details of an intersex child and intersex person.
Amendments of 2.
Section 29 of the Births and Deaths Registration section 29 of Cap.
149.
Act is amended in paragraph (d) by inserting the following 99 words immediately aft er the word documents 44an that shall include details of an intersex child or 99 intersex person as > 4 605 2022 Children No.
29 SEVENTH SCHEDULE Section 249 (2) TRANSITIONAL PROVISIONS L ocal A uthorities 1.
The county governments responsible for the areas falling under the Children A ct 200 1 the local authorities appointed under section 41 of (now repealed) shall be the county government entities for purposes of this A ct.
Existing Offi ces f orce of 2.
(1) A person who immediately before the coming into this Act held or was acting in an office of emolument under the repealed be deemed to have been Act shall, as far as it is consistent with this Act, appointed as from the coming into force of this Act to hold, or to act in, that office or the equivalent office under this Act.
would have (2) A person who before coming into force of this Act been required under law to vacate office at the expiration of a period of service or on their attaimnent of an age specified under the applicable law shall, despite paragraph 2, vacate office at the expiration of that period or on the attainment of that age.
(3) This paragraph does not affect any powers conferred by or to make under this Act or any other law on a person or an authority fr om offi ce on provision for the abolition of an office, for the removal stated and reasonable grounds of persons holding or acting in that office and from requiring persons to retire from office.
Pending Matters 3.
Where a matter or thing has been commenced before the coming into force of this Act by a person or an authority having power in that behalf under the repealed Act, that matter or thing may be cair ied on and commencement and completed by that person or authority on or after the to commence that it shall not be necessary for that person or authority matter or thing de novo.
Succession to Property before the 4.
(1) The property and the assets which immediately coming into force of this Act were vested in an authority or a person for the purposes of, or in right of, the Republic or in the government shall, assurance than this on the coming into force of this Act, without further paragraph, vest in the authority or person.
of this A ct a (2) Where immediately before the coming into force f or a child or an person or authority held property or assets in trust 606 2022 Children No.
29 child or Republic that authority for the purposes of, or in right of, the of this A ct hold that person or authority shall on the coming into force purposes of, or in the property or those assets on the like trust for the right of, the child or Republic.
Devolution of Other Rights 5.
(1) Subj ect to this schedule (a) where, under an existing law, a function, prerogative, that privilege or right is vested in a person or in an authority, on the function, prerogative, privilege or right shall vest, or coming into force of this Act, in the appropriate person or authority under this Act, and accordingly that person or the authority may do the things necessary for the exercise performance; and inthe State (b) a function, obligation, privilege or right vested shall continue to be vested.
i ncludes (2) For the purposes of subparagraph (1), functions powers and duties.
Legal Proceedings pending 6.
( 1) Subj ect to this Schedule, l egal proceedings before a court of immediately before the coming into force of this Act or by the State, shall competent jurisdiction, including proceedings against not be affected by the coming into force of this Act, and may be ^ continued.
w er e (2) Where proceedings for an offence against any person the offence shall, commenced before the coming into force of this Act, tri ed and determ ined aft er the coming into force of this Act, be dealt with, in accordance with this Act, and the forfeiture, penalty or punishment in (3), be imposed as if respect of that offence shall, subject to subparagraph ^Iti is Act had not come into force.
10 punishment is (3) Where under this Act the forfeiture, penalty or penalty or punishment mitigated or reduced in relation to the forfeiture, into force, the that would have been applicable had this Act not come or punishment shall provisions of this Act relating to forfeiture, penalty apply.
are (4) Where proceedings for an offence against any person commenced aft er the coming into force of this Act with, inquired (a) the offence, whenever committed, shall be dealt into, tried and determined in accordance with this Act; 607 2022 Children No.
29 i nto f orce (b) where the offence was committed before the coming to be imposed of this Act, the forfeiture, penalty, or punishment penalty or on conviction for that offence shall be the forfeiture, this A ct or punishment authorised or required to be imposed by come into by the law that would have applied had not this Act or force, but the lesser of the two forfeiture, penalties punishments shall be awarded; and i nto force of (c) where the offence is committed aft er the coming this Act, the forfeiture penalty or punishment to be imposed on conviction for that offence shall be the forfeiture, penalty or punishment authorised or required to be imposed.
document that w as 7.
A direction, notice, order, permit or any other that w as valid granted, issued or made under the repealed Act, and shall be given effect immediately before the coming into force of this Act, as if granted, issued or made under this Act.
funds for 8.
A childrens institution that was receiving public implementing functions under the repealed Act shall, upon the coming into force of this Act, continue to discharge its functions for period not exceeding two years and shall within that period as a children (a) apply to the Cabinet Secretary for designation rescue under this Act; of its child (b) apply to the Council for registration and approval welfare programme under this Act.
to the 9.
In any document, enactment or instrument, a reference Act, shall be read Council, or to the Adoption Society, under the repealed and construed as a reference to the Council, or to the Adoption Society, under this A ct.
make the 10.
The Cabinet Secretary may, by statutory instrument, consequential, incidental or supplemental provisions which are expediei|t to the transfer or or necessary for the purpose of giving full effect assignment, by or under this Act, of a function.
11.
A function transfen-ed under this A ct includes the transfer of any liabilities, property or rights incurred, held or enj oyed by an authority or a person in connection with the function transferred.
Provisions A ct 12.
The provisions of the Interpretation and General relating to implied powers shall apply to the authority or person to which or to w hom a transfer of af unction is made under this A ct.
608 2022 Children No.
29 provision in 13.
Where a difficulty arises with respect to a transitional instrument, make this Schedule, the Cabinet Secretary may, by statutory the adaptations or modifications as shall (a) prevent an anomaly that has arisen; or arisen.
(b) satisfactorily deal with the difficulty that has 14.
A transfen-ed officer terms and (a) shall hold office by the same tenure and any other conditions of service; and were payable (b) shall be paid emoluments not less than those that ifthisA ct had to that officer immediately before the transfer, as not been enacted.
duties.
15.
In this Schedule, "function" includes powers and Children Institutions registered under 16.
(1) A Charitable Childrens Institution that is any activity aft er section 65 of the Children Act, 2001 shall not undertake A ct.
ten years fr om the date of the commencement of this Council, make (2) The Cabinet Secretary shall, in consultation with t (1).
regulations for carrying out the provisions of sub-paragraph (2), the (3) Without prejudice to the generality of sub-paragraph regulations shall provide for shall stop ^ (a) the date that all Charitable Childrens Institution operating; or charitable children (b) the transfer of a child who is a resident at a by the institution to an existing institution managed or supported government.
Adoption resident 17.
The terms of the Moratorium on inter-country and to matters relating to adoptions issued on 26th November 2014 shall apply inter-country adoption under this Act.
.
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