Yes, you need your ex-husband’s consent before taking the children abroad

Dear Concerned Mother,

The foundational philosophical basis of law that seeks to promote and protect the rights, interests, and needs of children is rooted in the child's best interest principle, as articulated in Article 53(2) of the Constitution.

This principle is further emphasised and detailed in the Children's Act (2022), Section 8, which asserts that every decision or action related to a child must prioritise the child's interests comprehensively.

While Article 45(1) of the Constitution identifies the family as the fundamental unit of Kenyan society, it is not a prerequisite for a child's happiness and well-being.

Consequently, differences between parents, whether stemming from co-parenting arrangements, cohabitation, or marriage, must never adversely impact their children. Parental responsibility is an essential, non-negotiable right that every parent must fulfil for their child; conversely, it is also a constitutional right for children to receive.

In exceptional circumstances, courts have determined that it may be appropriate for only one parent to care for the child, particularly in cases where mental illness has been established or where assessments indicate a significant risk of violence, abuse, or other violations.

Co-parenting, as outlined in Section 33 of the Children's Act, serves as both a legal and social construct where two adults who have together sired a child or children agree to provide for them equally in terms of material, emotional, and physical presence, in accordance with Clause 1 (e) of Article 53 of the Constitution. A crucial point emphasised in this section of the law is the importance of parents refraining from allowing their marital status—whether married or not—to influence their ability to love and care for their child.

In defining parental responsibility, Section 31 of the Children's Act specifies the obligations parents have towards their children. These obligations include, but are not limited to, providing basic needs, offering parental guidance, and protecting the child from abuse, neglect, and discrimination. Furthermore, parents have the responsibility to facilitate or restrict the child's migration from or within Kenya.

While parental responsibility agreements typically delineate parental duties—including the sharing of time with the children—the primary goal is to promote couple partnerships and consensual parenting. Matters such as international travel, relocation, and a child's move from one residence to another must be mutually agreed upon in advance.

This aspect of child law is reflected in the regulations established by the immigration department, which often require consent provided through a properly completed consent form or a parental consent letter to facilitate travel for minors. These administrative measures are designed to prevent international child trafficking and to ensure that both parents or the child's guardian are involved or notified.

In cases of parental separation, whether through divorce or mutual agreement, the legal framework acknowledges this separation. Consequently, parents with a parental responsibility agreement must secure the other parent's consent before taking their child out of the country, even for a temporary visit. This legal requirement is in place to safeguard the child's rights, uphold the principle of shared parental responsibilities, and prevent abduction.

If obtaining the other parent's consent proves difficult, one has the option to petition the court for intervention to facilitate travel. The judicial officer overseeing this process ensures that the child's best interests are prioritised while also minimising any unnecessary legal complications.

The court may either grant permission for travel or deny it, with key considerations including promoting the child's well-being, enabling parents to fulfil their responsibilities while maintaining access to the child, regardless of custody arrangements, and ensuring the child's safety.

In situations where the other parent withholds consent, the accompanying parent remains legally prohibited from taking the child out of the country. Such an action would violate the parental agreement or any existing court order. Attempting to do so without permission could lead to serious legal repercussions, such as being accused of obstructing the other parent's access to the child or interfering with their parental responsibilities as defined by a court order or agreement.

Additionally, this could be perceived as child abduction or preventing the other parent from fulfilling their access or responsibilities. If this occurs, the parent may face imprisonment of up to one year, a fine of up to Sh500,000, or both. They could also potentially be charged with child stealing under Section 174 of the Penal Code.

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