Parental responsibility as stated by Article 53 Clause 1 paragraph (e) of the Constitution, rests on both parents’ shoulders. This part of the law is framed through the lens of a child’s right to unqualified parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.
In line with the child’s best interest, as affirmed in Clause 2, neither parent is superior when responsibility calls.
Separated, divorced, or unmarried parents often get into co-parenting arrangements that could be verbal or written, depending on the amount of trust, commitment to care for their child, and capacity to resolve conflicts without injuring the child’s interests, rights, and needs.
Co-parenting, as anticipated in the Children’s Act of 2022, is likely provided for in a Parental Responsibility Agreement (PRA) as espoused in Section 33 Sub-section 1, which states parents of a child who are not married to each other may enter into an agreement, whereby both, in the best interest of the child agree on clear individual responsibilities towards the child.
Such an agreement should state who among the parents holds actual custody. Similarly, the same should state what terms are required of either parent if one wishes to travel with or take their child abroad. However, taking a child overseas is okay if it serves the minor’s best interest.
In the absence of a PRA, and with the likelihood of constrained parental relations, one parent can initiate a court process to stop the other from taking the children out of the country.
The law recognises that the one holding the children has actual custody, either given by the court or that being a term in an agreement. A custody order given under Section 103 Sub-section 2 affirms the parent’s rights, not with actual custody of the child. It states where a custody order is made giving custody of a child to one parent, or in the case of joint guardians, to one guardian, the court may order that the person not awarded custody shall nevertheless have all or any rights and duties concerning a child, other than the right to actual possession.
Based on the interpretation of this section of the law on children matters, the parent enjoying actual possession should seek consent from the other, should an action relating to the removal of a child from a known residence be intended.
In Section 106 of the same Act, the law underpins the need for an agreement on what parents must do individually and jointly to ensure the rights of a child are not harmed where there is a custody order. Failure on their part owing to squabbles of unclear duties and related performance, notwithstanding their rights, both or one may seek guidance from the court.
Section 174 Sub-section (1) of the Penal Code illegitimises the action of removing a child from the known abode by creating the crime of child stealing. It provides as follows: Any person who, with intent to deprive any parent, guardian, or another person who has the lawful care or charge of a child under the age of 14 years of the possession of the child - (a) forcibly or fraudulently takes or entices away or detains the child; or (b) receives or harbours the child, knowing it to have been so taken or enticed away or detained, is guilty of a felony and is liable to imprisonment for seven years.
This offense is not without defence as provided for in Sub-section (2), which gives reprieve to an accused person if they claim in good faith a right to the possession of the child or where there is unclear paternity a claim from its alleged mother or father. It is noted that a part of this section uses a derogatory and stigmatising term referring to a child of unmarried persons as illegitimate.
The decision by the Family division of the Mombasa High Court, in the Civil Appeal No. 32 of 2017, confirms that courts do not read bad faith, malice or conclude interference of a parent’s right of access in allegation of a child being moved from its jurisdiction, by the other without concrete evidence. The general rule, with restrictive exceptions, is that children of tender age, this being below ten, are often left by the mother for actual custody.
