What every Kenyan parent needs to know about parental responsibility agreement
A mother with her two children. In Kenya, for a parental responsibility agreement to be enforceable, it must be filed in court and adopted as a court order.
What you need to know:
- In Kenya, separated parents can formalise custody, visitation, and financial duties through a parental responsibility agreement to ensure their child’s best interests remain protected.
- Such agreements outline shared responsibilities, including education, healthcare, holidays, and communication between parents; they become enforceable once filed in court.
Dear Vivian,
I was married for four years, during which we had two children with my now ex-husband. Having read your previous articles on maintenance and custody, I first decided to visit the children’s office, where I was asked to invite him for a mediation session. I was also informed that once we agreed, we would develop a parental responsibility agreement. What is this agreement – and what does it contain?
Violet Chepng’eno,
Embakasi
Dear Violet,
When parents are separated, divorced, or not living together, it becomes difficult to play their parental responsibilities jointly and equally, hence the need for an agreement. This agreement is called a parental responsibility agreement, a co-parenting agreement, or a parenting plan. Parental responsibility ideally exists until the child attains the age of majority, that is, 18 years. However, under the Children Act, it can be extended beyond that age if the court finds special circumstances, such as severe disability or a developmental disorder, that necessitate continued care.
During your meeting, the children’s officer, in leading the conversation, will prioritise the best-interest principle. Article 53(1) of the Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child.
Additionally, the Children Act of 2022 provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.
Therefore, in drafting the agreement, the paramount consideration for each parent should be the welfare of the child. In some instances, and depending on the age, the wishes of the child can also be considered.
To affirm these laws, the Supreme Court of Kenya, in the landmark case Mutheu Agatha Khimulu v Raheem Mehdi Aziz Azad & 4 others, stated that the parental agreement remains in effect unless specifically revoked by a court order or by the parties’ mutual consent. The court also emphasised that parental responsibility cannot be extinguished, meaning it is an ongoing obligation that both parents must fulfil, regardless of their marital status.
It is, therefore, commendable that you are open to developing an agreement. Such an agreement will help prevent conflict between you and your ex-husband regarding custody, visitation, and financial obligations. This is vital for maintaining a stable environment for the children, minimising the emotional and psychological impact of parental separation.
As you draft the agreement, ensure it addresses the time spent with the children, including holidays and special events; mandatory payments made by one parent to the other for the children’s benefit; responsibility for making significant decisions about the children’s upbringing, such as education and healthcare; communication requirements between parents; and conflict resolution methods.
Finally, in Kenya, for a parental responsibility agreement to be enforceable, it must be filed in court and adopted as a court order. This means that any breaches can lead to legal consequences, thereby providing a framework for accountability.
Vivian
The writer is an advocate of the High Court of Kenya and an award-winning civil society lawyer ([email protected]).
