What is Parental Responsibility?

Parental responsibility according to Section 30 of the Children Act, 2022, means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.

Article 53(e) of the Constitution of Kenya, 2010, provides that both a father and mother  have equal responsibility to provide for their child whether they are married to each other or not.

Section 32(1) of the Children’s Act further emphasizes this by providing that the parents of a child have equal responsibility over the child on an equal basis, and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility whether the child is born within or outside wedlock.

The duties provided under the Children’s Act, 2022 include but are not limited to the duty to provide the child with basic nutrition; shelter; water and sanitation facilities; clothing; medical care; basic education and general guidance, social conduct and moral values; the duty to protect the child from neglect, abuse, discrimination or other differential treatment among others detailed therein.

Why a Parental Responsibility Agreement?

In a case where parents are not married to each other and have to co-parent, we always recommend that they enter into a Parental Responsibility Agreement to ensure that the best interest of the child is prioritized by agreeing on clear individual responsibilities towards the child. This is provided for under Section 33(1) of the Children’s Act, 2022.

Section 53(2) of the Constitution of Kenya, 2010 provides that the Best interest of the child are of paramount importance in every matter concerning the child and this is further emphasized under the Children’s Act Section 8.

The Parental Responsibility Agreement formalizes the responsibilities of each parent as well as the rights of the child.

The Parental Responsibility Agreement specifies the following:

1. Contact information of the parents;
2. Visitation schedule;
3. Holiday and school break schedule;
4. Custody arrangements, whether joint or sole;
5. How the child or children shall spend time with each parent;
6. Transport and travel within and outside Kenya;
7. Responsibility for health insurance and healthcare services;
8. The need for notification of parental movement in the event one or both of the parents relocate or change residence;
9. The manner in which the decisions relating to the education of the child shall be made;
10. Dispute Resolution Mechanism, which we should recommend mediation prior to approaching the court, so as to help maintain a healthy co-parenting relationship; and
11. the joint and several responsibilities expenses for extra-curricular activities of the child.

How do you make a Parental Responsibility Agreement enforceable?

In order to make a Parental Responsibility Agreement enforceable in Kenya, it requires to be filed in court and adopted as a Court order.

Any amendments thereto, need to also be mutually agreed upon and filed in court, however in the event that a dispute arises regarding the amendment, then the court will evaluate on whether the best interests of the child are upheld in the amendment.

How can a Parental Responsibility Agreement be terminated?

A parental responsibility agreement may only be revoked or terminated by an order of the Court made on application by a person who has parental responsibility over the child or a child, with the leave of the Court. In the case of application by a child, the court may only grant leave if satisfied that the child sufficiently understands the nature and effect of the application made to the Court.

The parties can mutually agree to have the Parental Responsibility Agreement revoked/terminated.

What happens if one party breaches the Parental Responsibility Agreement?

In the event that one of the parents is held to be in breach of one or more of the parental responsibility agreement or an order of the court and hinders another who has access to a child or who has parental responsibility introspect of that child or abducts the child or otherwise prevents the other parent from exercising access or responsibilities over the child, shall be deemed to have committed an offence, and shall, on conviction, be liable to imprisonment to a term not exceeding one (1) year or to a fine not exceeding Kshs.500,000/=, or to both.

Conclusion

A Parental Responsibility Agreement if drafted well can help parents navigate co-parenting hurdles smoothly. Parents should prioritize the best interest of the child to ensure that the child has a healthy up-bringing. 

Let us help you navigate  co-parenting by reaching out to us on:

Email: info@kendikadvocates.co.ke
Website: www.kendikadvocates.co.ke
Tel: +254768028504

Disclaimer:
This information provided in this Article is intended as a general overview of the subject dealt with. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Kendi & Company Advocates is not responsible for any actions taken or not taken on the basis of this information.