Children Act

The Act may be cited as the Children Act.

Contains the phrase "who has been deserted by the parent, guardian or caregiver; or".

The Act gives effect to the provisions of Articles 27, 47, 48, 49, 50, 51 and 53 of the Constitution on matters relating to children.

A judicial or administrative institution or any person interpreting conflicts must have regard to the best interests of a child.

Differential treatment intended to protect the child's best interest is not discrimination.

Every child has rights to parental care and protection, to live with parents except as provided by the Act, to alternative care when separated, to siblings remaining together where an order applies, and to regular contact with parents unless the Court finds it contrary to the child's best interests; the Court or the Secretary may determine separation and the Secretary must facilitate tracing and reunification on parental request.

Every child whose parent or guardian is unable to maintain the child has the right to social security; the Cabinet Secretary responsible for finance must establish a Child Welfare Fund to facilitate expenses for alternative care and social security programmes.

Every child is entitled to free and compulsory basic education; parents or guardians must present children for admission to basic education institutions; the Cabinet Secretary must develop and implement policies (in consultation) to realize the right.

Every child is entitled to leisure, play and non-harmful cultural and artistic activities; the government and parents/guardians must permit and facilitate this at public recreational facilities; county governments must set aside accessible public play areas.

Every child is entitled to freedom of thought, conscience, religion and religious education, subject to appropriate parental guidance and the child's best interests.

Every child has the right to the highest attainable standard of healthcare; reproductive health services for children require the express consent of a parent or guardian.

Every child has the right to inherit property; children are entitled to equal treatment; no person may disinherit a child; contraventions are offences with penalties and restitution rights for the child.

No person must subject a child to child labour, domestic servitude, economic exploitation, hazardous work, or work that interferes with education or is likely to harm the child’s development; and no person must use, procure or offer a child for slavery-like practices.

Prohibits subjecting or recruiting children into armed conflict and requires the State to set up mechanisms for protection, care, rehabilitation and reintegration of affected children.

Children with disabilities have entitlements to dignity and free appropriate medical treatment, special care, education and training; they also have rights under the Persons with Disabilities Act; the State must establish institutions and facilities to progressively realize these rights.

An intersex child is entitled to be treated with dignity and to appropriate medical treatment, special care, education, training and recognition as a special needs category in social protection services.

Section 22 criminalises psychological and child abuse, certain online abuses (including grooming, solicitation and cyberbullying) and intentional transmissions through computer systems that bully a child; penalties include up to five or ten years imprisonment and fines up to two million shillings.

The section prohibits a person from subjecting a child to specified harmful cultural practices (listed in subsection (1)); a person who contravenes subsection (1) commits an offence punishable by at least three years' imprisonment or a fine of at least five hundred thousand shillings or both; causing a child's death from such a procedure is an offence punishable by life imprisonment.

The provision prohibits a person from using specified harmful drugs or being involved in producing, trafficking, selling, storing or distributing them; contravention is an offence punishable by up to five years imprisonment or a fine of at least five hundred thousand shillings, or both.

Every child has the right to be free from torture and cruel, inhuman or degrading treatment or punishment.

The competent authorities must take measures to ensure humane treatment and respect for dignity of children deprived of liberty, and the State must provide legal and other assistance and family contact to apprehended and detained children; children with disabilities deprived of liberty are entitled to guarantees under the Constitution, this Act and the Persons with Disabilities Act.

No person must subject a child to arbitrary or unlawful interference with their privacy, family or private affairs, correspondence, or attacks on honour or reputation. Parents or legal guardians have the right to exercise reasonable supervision over their children. Personal data concerning a child must be processed only in accordance with the Data Protection Act (Cap. 411C).

Every child has the right to peaceably assemble, demonstrate, present petitions, and participate in matters affecting children; they may express views and have them given due weight; these rights are subject to others' rights and must be exercised in specified ways.

Specified persons may bring court proceedings to enforce children's rights; the High Court must hear such applications and may order remedies; the Cabinet Secretary may make regulations to implement this Part.

The State must take progressive measures to fully realize the rights of the child in this Part; the Cabinet Secretary must ensure policies, laws and programmes are developed, reviewed and implemented to give effect to that duty.

Every child is entitled to life, survival, wellbeing, protection and development; no court may impose the death penalty for offences committed by a child.

Every child has rights to a name and nationality, to be registered after birth, and (where applicable) to know and be cared for by their parents; the Principal Registrar must ensure correct documentation of intersex children at birth; a young child found in Kenya with unknown parents and nationality is presumed a citizen by birth.

The best interests of the child shall be the primary consideration; children must be given opportunity to express their opinions, and the Cabinet Secretary must issue guidelines to give effect to this section.

No person must discriminate against a child on specified grounds.

A child must work for the cohesion of the family.

Defines "parental responsibility" as the duties, rights, powers, responsibilities and authority a parent has regarding a child and lists parental duties (nutrition, shelter, water and sanitation, clothing, medical care including immunization, education, guidance), duties to protect the child, administrative responsibilities (name, birth registration, guardianship, property), migration facilitation/restriction, burial arrangements, a duty to ensure care during temporary absence, a permission for carers without parental responsibility to act reasonably for the child's welfare, and grants the Cabinet Secretary power to make regulations.

Parents share parental responsibility equally; neither parent has a superior right; persons with parental responsibility have duties and powers prescribed by law; they must not contravene court orders; they may not assign their responsibilities but may make temporary arrangements during absence.

Unmarried parents may enter a prescribed parental responsibility agreement specifying individual responsibilities for the child; the Court may permit a child to apply if the child understands, and failure to notify a change of the child's residential address is an offence punishable by up to one year imprisonment or a fine not exceeding two hundred thousand shillings, or both.

Specifies who has parental responsibility when a parent dies and who may object or apply to court about testamentary guardians; sets that a spouse on marriage exercises parental responsibility.

The Court may extend parental responsibility for a person beyond their 18th birthday if it is satisfied that special circumstances affecting the child's welfare necessitate the extension; this can occur of the Court's own motion or on application by any person.

The Cabinet Secretary must prescribe regulations to implement this Part and to guide programmes and actions that preserve and strengthen families.

Establishes the Office of the Secretary of Children Services; the Secretary is to be appointed by the Public Service Commission and must meet listed qualifications.

The Secretary must regulate, coordinate, manage and supervise children’s officers in delivering welfare and administering children’s services.

The Secretary has power to do acts necessary to carry out the Secretary's functions, may appoint, assign or delegate functions to officers or persons, and may institute proceedings for contraventions relating to child maintenance, neglect and abuse.

The Public Service Commission must competitively recruit and appoint chief officers, children officers and any other officers necessary to assist the Secretary in performing their duties under this Act.

Establishes the National Council for Children’s Services as a body corporate and lists powers including suing and being sued, acquiring and disposing of property, entering contracts, receiving grants and performing acts necessary to carry out its functions.

The Council is the central authority for the purposes of the Hague Convention on Inter-Country Adoptions.

Section 43 lists who composes the Council, gender and diversity composition requirements, qualifications for members, and states that the Chief Executive Officer of the Council shall be the secretary to the Council.

Members appointed under section 43(1)(a),(e) and (f) hold office for three years and may be reappointed for one further three-year term; Members except the Chief Executive Officer serve part-time.

If a vacancy occurs in the office of Chairperson or member, the appointing authority must fill it within sixty days; a member appointed to fill a vacancy serves for the term specified in section 44.

The Council must pay its members remuneration or allowances as determined by the Cabinet Secretary in consultation with the Salaries and Remuneration Commission.

The Council may establish committees and may engage experts or consultants to help discharge its functions.

Section 48. Staff of the Council Section 48(1) There shall be a Chief Executive Officer of the Council who shall be competitively recruited and appointed by the Council and whose terms and conditions of service shall be determined by the

The Council decides the form of its common seal; the Chief Executive Officer must keep it in custody; the chairperson and the Chief Executive Officer (or any person authorized by Council resolution) must authenticate when the seal is affixed.

Council members and its officers, staff or agents are not personally liable for actions done in good faith to execute Council functions; the Council remains liable to pay compensation or damages for injuries arising from exercise of powers under this Act or other law.

Proceedings brought against the Council are treated as proceedings against the national government and are subject to the Government Proceedings Act (Cap. 40) and the Public Authorities Limitations Act (Cap. 39); notices or other processes for such proceedings must be served on the Chief Executive Officer.

The Council has power to do acts necessary or convenient to carry out its functions and may carry out activities alone or with others.

The Council may make regulations, with the approval of the Cabinet Secretary, to enable the effective discharge of its functions.

The Council may establish County Children Advisory Committees for better performance of its functions at the county level in accordance with the Act.

The Council must establish sub-county children advisory committees in every sub-county to advise County Children Advisory Committees and recommend child welfare programmes; those sub-county committees must submit particulars to County Children Advisory Committees, which must report to the Chief Executive Officer, who must recommend to the Council and notify relevant county committees about approvals or refusals.

Persons entrusted with the care or having actual custody of a child (but not having legal custody) must safeguard the child's interests and welfare.

A Court may make a custody order awarding legal custody of a child to applicants qualified under subsection (3); subsection (3) lists parents, guardians, long-term custodians (three years) with consent, and others who can show cause. The Court also has power, on the Secretary's application, to remove a child from an abusive situation and place the child in temporary alternative care.

Courts must apply listed principles when making custody orders; courts may grant rights and duties to a non-custodial person, including access; a parent found unfit is not entitled to custody on the death of the other parent without the Court's leave.

If a child has lived with a person for three years, no one may remove the child from that person's custody against the applicant’s will without the Court's leave; breaching this is an offence with possible imprisonment up to three months or a fine of not less than one hundred thousand shillings, or both.

A court can order return of a child removed in breach of section 104, prohibit removal when there are reasonable grounds under section 107, issue search warrants to locate such children, and give directions on access when making custody orders.

If two people jointly hold parental rights or duties under a custody order and cannot agree, either person may apply to the Court, and the Court may make orders about exercising the right or performing the duty.

A Court may revoke a custody order on application; before revoking it the Court must make an order as to who will have custody. Custodians and certain other persons may apply for revocation or variation of access or maintenance orders. Custody and related orders cease when the child turns eighteen, but the Court has power to extend them on application.

The Court may make interim custody orders, may review/suspend/vary them, but must not make an interim custody order under subsection (1) for more than twelve months.

Agreements between parents that transfer legal or actual custody between father and mother are not invalid solely for that reason, but the Court will not enforce such agreements if it believes enforcement is not in the child's best interest.

Both parents must maintain the child.

Parents, guardians, custodians or an authorised officer may apply to the Court for matters relating to a child's maintenance and the Court may itself make a maintenance order when making, varying or discharging residence, guardianship or custody orders, even if no application has been made.

The Court may make a maintenance order for a child whether or not matrimonial proceedings have been filed, during proceedings, or after a final decree is made.

Section 113. Financial provision for child Section periodic payments; or

The Court may make a maintenance order for a child (including a non-adopted child accepted as part of the family) and may consider specified financial and personal factors when deciding.

Section 115 concerns the power to order that maintenance monies be paid to a person other than the applicant and lists circumstances (including unfitness, absence, death/incapacity/imprisonment/bankruptcy, misappropriation; transfer of the child between institutions; or the court granting custody to another person) relevant to such orders.

A maintenance order for periodic payments starts on the date of the application (or a later date the Court may direct) and stays in force until the child’s eighteenth birthday, subject to section 111; it can end on the death of the person liable or on a significant change of circumstances for a parent or guardian that is not detrimental to the child's best interests.

A Court may make an interim maintenance order and may dispense with any notice if satisfied it is in the best interests of the child, on an ex-parte application.

The Court may make orders and give directions about any aspect of a child's maintenance, including education, medical care, housing, clothing, and financial provision for the child.

The Court has the power to impose conditions or to vary an order.

The Court may, on application, vary the terms of an agreement about a child's maintenance if it is satisfied the variation is reasonable and in the child's best interest.

The Court has various powers to enforce maintenance or contribution orders, including ordering payment of arrears, detention or inspection of property, setting aside dispositions, injunctions, directing enquiries into means, postponing warrants, and varying or discharging orders; the Court must give prior notice and an opportunity to make representations before making an order.

The Council's funds include monies appropriated by Parliament, grants/gifts/donations/endowments, and funds that vest in or accrue to the Council; the Council's receipts, earnings or accruals and year-end balances shall not be paid into the Consolidated Fund but retained for Council purposes under this Act.

The Council must prepare and approve annual revenue and expenditure estimates before each financial year, submit them to the Cabinet Secretary for approval, and (after approval) must not increase estimates without the Cabinet Secretary's consent.

The financial year of the Council shall be the period of twelve months ending on the thirtieth of June in each year.

The Council must keep proper books and records of account of its income, expenditure, assets and liabilities.

Section 60 lists items for the Council's annual reports (financial statements; description of activities; recommendations on actions; recommendations on policy, legislative and administrative measures; any other relevant information). It also permits the Council to prepare, publicise and submit periodic status reports to the Cabinet Secretary.

Section 61. The Role of County governments Section 61(1)(a) provide or facilitate the provision of pre- primary education; and Section 61(1)(b) provide or facilitate the provision of childcare facilities. Section 61(2) Every county

A county government may, alone or jointly with other county governments and after consulting the Council, establish welfare schemes to provide or help provide childcare facilities and programmes for children, including children with disabilities.

The Cabinet Secretary must (in consultation with the Council and by notice in the Gazette) establish children rescue centres in every county for temporary care, may designate existing children’s institutions as rescue centres and may collaborate with county governments; regulations must be made for approval standards; certain institutions are excluded.

Inspector-General must establish child protection units in every police station on a temporary basis to provide a safe, non‑threatening environment for children in conflict with the law; the Secretary may inspect those units for compliance with standards.

No person must register or operate a Charitable Children’s Institution except as provided in law; existing Charitable Children’s Institutions must ensure every employee holds a valid certificate showing no pending criminal investigations.

Section 66 sets out the manager and staff requirements for a Charitable Children’s Institution: a manager who is a duly qualified person and a sufficient number of staff, and specifies manager qualifications including a Bachelor’s degree or Diploma in Social Sciences, a valid certificate showing no pending criminal investigations or convictions under the Third Schedule, and at least three years’ working experience in social services.

The main objective of charitable children’s institutions is to provide family-based care for all children in accordance with the national policy for the promotion and protection of the rights of the child; placement in institutions is limited by specified conditions and maximum durations.

Section 68 lists specific institutions that are not considered Charitable Children’s Institutions and requires that a charitable children’s institution, with the written approval of the Council, provide medical care, education or training for children accommodated there.

Registered charitable childrens institutions may apply to the Council to change the institution's user, submitting the application at least six months before the proposed change.

Charitable Children's Institutions cannot run child welfare programmes without the Council's prior written approval; the Council must make regulations setting criteria for approval and must keep a register of approved programmes.

Section 71 sets rules for placement of children in Charitable Childrens Institutions: institutions must notify the Secretary within 24 hours of admission and institute care proceedings within seven days; they must not admit a child without a Court committal order specifying a maximum accommodation period; a person must not remove or transfer a child without leave of the Court; the Court must consider any childrens officer report when deciding committal orders.

The Secretary must arrange periodic visits by authorized officers to charitable children’s institutions to interview and check the wellbeing of every admitted child; authorised officers must in particular check steps to place children into family-based alternative care within the three-year period in section 67(3).

The Secretary must authorise officers to inspect charitable children’s institutions, authorised officers may conduct interviews, require records, inspect facilities and report; the Secretary may require remedial management actions and appoint a manager for up to two months; obstruction or refusal to cooperate is an offence punishable by imprisonment up to three years or a fine up to one million shillings.

The Chief Executive Officer must prepare and submit to the Council a report on the proposed child welfare programme; the Council may approve or withhold approval, and anyone who implements a programme or part of it without Council approval (where approval is withheld) commits an offence punishable by up to 12 months' imprisonment or a fine up to 200,000 shillings, and continuing implementation after conviction attracts a daily fine up to 10,000 shillings.

The County Children Advisory Committee must review each approved Child Welfare Programme twelve months after approval and annually thereafter, and advise the Council whether it meets Council-prescribed standards; the Council may direct remedial steps, deregistration and termination (including immediate termination and transfer of children), and continuation after deregistration is an offence punishable by up to 12 months imprisonment or a fine up to 200,000 shillings.

Section 76 sets grounds for deregistration of a child welfare programme, requires the Council to give notice and an opportunity to be heard (30 days), allows appeals to the Cabinet Secretary and High Court, and requires the Secretary to take remedial measures (including reintegration, transfer, removal, closure, prosecution or other action) if deregistration occurs; the Cabinet Secretary must make regulations for reintegration and transfer.

The Cabinet Secretary may establish children’s remand homes by Gazette notice and must facilitate suitable facilities for children with special needs; remand homes must have separate sections by sex, age, needs and risks; managers of public institutions (other than prisons) may agree to the use of their institutions as remand homes.

The Cabinet Secretary may establish and approve rehabilitation schools, declare institutions as rehabilitation schools by Gazette notice, issue and withdraw certificates of approval, and the manager may apply for approval, surrender approval with six months' notice, and affected persons may appeal deregistration within thirty days.

Rehabilitation schools must have separate sections for children by sex, by age category, by conflict-with-law status, and by risk category; they must provide a counsellor or psychologist and take account of specific needs and risks for different categories of children in conflict with the law.

Managers must admit children into a rehabilitation school.

The manager of a rehabilitation school may, with the authority of the Secretary, grant leave of absence to any child accommodated in that rehabilitation school for such period and on such conditions as the manager considers fit, and may at any time terminate such leave and direct the child to return to the school.

The Secretary may apply to the Children’s Court to revoke a child’s committal order; the Court may revoke such orders and the manager of the rehabilitation school must produce the child before the Court.

The Secretary may, by court order at any time, transfer a child between rehabilitation schools; a child committed to a rehabilitation school must be under the supervision of a probation officer for two years after the prescribed stay, as ordered by the court.

Parents/guardians with parental responsibility must be notified of and heard in proceedings concerning the child; the State must bear expenses for committing a child; children committed or whose committal is extended must be provided appropriate professional assistance, including legal services.

Managers and medical officers must arrange medical transfers and returns for seriously ill detained children and take precautions to prevent escape, with medical judgement protecting the child's wellbeing.

An order committing a child to a remand home or sending the child to a rehabilitation school authorizes the child's confinement in that place, and a child is deemed in lawful custody when confined to or being conveyed to or from such institutions or a health institution.

The Secretary must supervise and inspect child rescue and care institutions, and must facilitate placement of children into alternative family care as soon as possible; children should not remain in a rescue centre for more than six months.

The Cabinet Secretary must appoint an inspection committee to inspect rescue centres, child protection centres, charitable children’s institutions, remand homes, rehabilitation schools and borstal institutions.

Regulations on the establishment, administration and supervision of children institutions.

The Chief Justice must make rules to give effect to this Part.

The Chief Justice may designate children’s courts in counties and sub-counties and may appoint magistrates to preside over cases involving children; there shall be a Registrar and Deputy Registrars; the children’s Court has civil and criminal jurisdiction; the High Court may entertain appeals or references relating to diversion or trial of a child.

Section 91 sets out the jurisdiction and powers of the Children’s Court, obligations to transfer cases between Children’s Courts and other courts based on age, who must preside over children’s cases, High Court powers on appeal involving children, and that Children’s Courts may inspect children’s institutions.

A Children’s Court must have a setting that is friendly to the children who are before it.

Specifies when and where Children’s Court sittings occur, who may be present, provisions for converting Magistrates’ courts, and service and hygiene standards for children.

Power to make orders relating to privacy in proceedings, including allowing a witness to give evidence under the protective cover of a witness protection box

The Court must not make an order about a child under this Act unless it considers that doing so is in the best interest of the child.

If an unrepresented child under sixteen is before a children’s Court in proceedings, the Court must order that the child be granted legal representation; a child in conflict with the law is entitled to legal representation at the State’s expense.

When considering matters about a child, the Court may summon or direct any person to prepare and present reports or statements about the child; material in such reports or related evidence may be relevant to issues before the Court; when an expert is ordered or summoned a party must be given an opportunity to submit views before the Court makes an order.

A court where a child is brought may appoint a guardian ad litem to represent the child's interests in the proceedings, especially if the child lacks an advocate.

Appeals lie to the High Court on points of fact and law.

Section 122 sets rules on guardians: a guardian appointed under the Act must be a Kenyan citizen; a guardian who is not a parent must not remove the child from Kenya without a Court order (leave only in exceptional circumstances); where leave is granted the Court must impose conditions; notwithstanding leave rules the guardian must produce the child to court upon return; where guardian is appointed only for the estate they need not have custody.

If a child's father dies, the surviving mother shall be the child's guardian (alone or jointly); if the mother dies, the surviving father shall be guardian (alone or jointly). If no appointed guardian exists or that guardian will not act, the Court may appoint a guardian to act jointly; the Court may also determine on application whether a separated surviving parent is fit to act as guardian.

Either parent may appoint a testamentary guardian by will or deed; guardians and appointed persons have specified duties to act jointly with surviving parents and procedural requirements apply for deeds and wills.

The Court may appoint a guardian in the specified circumstances; the Chief Justice must make rules to guide guardianship procedures.

The Chief Justice must make rules to guide procedures for matters relating to customary guardianship.

A guardian’s appointment ends when the child turns eighteen unless a court extends it for exceptional circumstances (for example, mental or physical disability or illness) and the court may attach conditions or later vary, modify or revoke such orders.

Section 128 allows a person appointed guardian under sections 122 or 123 to disclaim the appointment by a written instrument within a reasonable time and signed as soon as reasonably practicable after knowing the appointment took effect; disclaimers must be in prescribed form and delivered/recorded in accordance with regulations.

Joint guardians, or the surviving parent and a guardian acting jointly, may apply to the Court for directions about matters concerning a child’s welfare; the Court may make orders it deems proper. Certain other persons may apply with the Court’s leave.

A guardian appointed under sections 122 and 126 has the same powers over the child or the child's estate as a guardian appointed under the Law of Succession Act (Cap. 160).

A guardian of a child’s estate neglects to recover or safeguard the child’s estate.

Guardians who willfully or recklessly mismanage a child’s estate (neglect, misapply, cause loss/waste, fail to produce required accounts, or produce false accounts) commit an offence; the Court may order restoration and surrender to a Court-appointed administrator; guardians must restore the estate's value if misappropriated.

The Chief Justice must make regulations to implement this Part, including procedural rules on how applications under this Part may be made.

The Court has the power to make orders to protect a child in proceedings concerning the child's welfare and upbringing.

Section 135 lists various orders the Court may make for the care and protection of children, including access, residence, assessment, assistance, wardship, provisional care, production, protection and non-interference orders.

The Court may make a supervision order placing a child under a children’s officer or authorized officer; the Court may vary, discharge or extend such orders on application of the supervisor; the Court must not extend a supervision order unless notice of the application has been given to parents or guardians or other persons with parental responsibility.

The Court may make an interim supervision order in specific situations; such an interim order must not remain in force for more than two months unless the Court extends it.

A supervision order is automatically discharged when the child attains the age of eighteen years; subsection (1) lists persons (the child with the leave of the Court; parents or custodian or any person with parental responsibility; the supervisor; any person with whom the child resides; or a person acting on behalf and in the best interest of the child).

If the Court makes an order under section 135(1)(c), (d) or (g) it may attach a power of arrest; a person named in such an order is liable to arrest if they contravene any stipulation or condition while the order remains in force.

Any person who contravenes an order under section 135 or who obstructs or unlawfully interferes with a court-appointed person in executing duties under that order commits an offence and is liable on conviction to imprisonment for up to twelve months, a fine up to two million shillings, or both.

Review, vary, suspend or discharge any order made under this Part.

Defines a person who, because of abuse, neglect, poverty, community upheaval or any other reason, has left home, family or community and lives, begs or works on the streets.

A Children’s Court has jurisdiction to make an order or render judgment under this Part even if the events leading to the order or judgment did not occur within the Court's local limits.

A child who is an orphan and has no guardian is described as a child in need of care and protection.

Sets procedures for reporting and handling children in need of care and protection, including duties for authorised officers, the Secretary, county government entities and children’s institutions, permissions for children and guardians, and safeguards on places of safety.

Authorised officers must take a child in need of healthcare to a registered health institution, which must provide appropriate treatment, care and hospital accommodation; medical practitioners/administrators must record and preserve information if certain offences against a child are suspected and must report findings to a children officer or authorised officer within forty-eight hours.

If a child in need of care and protection is found to have a home in a particular county government area, the Courts must order that the child be accommodated in that county entity's facility; the Court may also remit the case to the court of that local jurisdiction.

When a child in need of care and protection is brought before the Court, the parent, guardian or other person with parental responsibility has the right to be heard and may participate; if such parent or guardian cannot be traced a relative may, with the Court's leave, be heard and participate; the Court may summon and direct attendance of those persons for proceedings under this Part.

The Director of Public Prosecutions may authorise the Secretary to take over any application or proceedings concerning a child; but the Director may not terminate proceedings he has authorised the Secretary to assume control of without leave of the Court.

Section 150 gives the court multiple powers and duties when a child in need of care and protection is before it, including ordering return or guardianship, committing to rehabilitation or rehabilitation centres, interim accommodation, and requiring parents to seek counselling.

If a child is removed from a person's care and that person is entitled under a trust to maintenance sums, the Court may order those trust payments to be paid to an authorised officer or other caregiver for the child's benefit; the Court must have regard to the trust terms; non‑compliance with such an order is an offence punishable by up to six months' imprisonment or a fine not exceeding two million shillings, and the Court may also order seizure of trust funds or property for the child's benefit.

Section 152 describes acts (assault, ill-treatment, abandonment, exposure, or acts/omissions causing a child to need care) and allows the Court to order criminal proceedings if the conduct is serious or aggravated.

The Court must entrust a child under a care order to a person or institution, prioritising the child’s religious faith and special needs where practicable; the Court must direct provision of records, may make orders in the child's absence with consent, and aggrieved persons may appeal.

The Court controls and may permit or restrict access to a child in care; it must refuse contact deemed detrimental to the child and determines frequency and duration when making access orders.

A Court may make an interim care order either of its own motion or on application by any person, on any of the grounds in section 153(2); the Court may, for good cause, extend the interim order once for up to a further two months.

Describes the ways a care order may be discharged, lists persons related to applications or interests in discharge, and allows an order to include a supervision order in substitution for a care or interim care order.

Section 157 requires police officers to escort children committed to rehabilitation schools within twenty-four hours; the Secretary must facilitate the escort and placement; the school must submit a report to the Court within seven days; and the Court must record the committal. If not escorted within twenty-four hours the child shall be held in a child protection unit.

When the Court makes a care order for a child committed to a rehabilitation school, the Court must send the order and a prescribed record about the child to the school's manager.

The Court may summon a person to produce a child if an authorised escort cannot obtain custody; failure to comply or to attend without reasonable cause is an offence punishable by up to one year imprisonment or a fine (KSh 100,000 or KSh 50,000 depending on the subsection), or both.

If a child who has been placed under care in a rehabilitation school is harboured or concealed after the time fixed for the child to enter the rehabilitation school, any person commits an offence and is liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding one hundred thousand shillings, or to both.

If a child escapes from a person or institution to whose care the child was entrusted, the child may be apprehended without warrant and brought before a Children’s Court, which may make various orders (return, alternative placement, rehabilitation school, orders under section 150, counselling); the court must act in the child’s best interests and must consider the child’s views before making an order.

Charitable children’s institutions and County Public Entities must report certain occurrences to the nearest police station within 24 hours and must lodge a written notice of a child’s escape with the Court within one month; failure by managers or officers to comply is an offence punishable by a fine not exceeding one million shillings.

A child who escapes from a remand home, rehabilitation school, hospital or similar place, or while being escorted to or from such a place, may be apprehended without a warrant and dealt with under section 157; if a child restored to a rehabilitation school after escape, the child’s committal period is to be increased by the time the child was at large and absent from the school.

Aiding escape: to run away from a fit person, a charitable children’s 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 whom or with which the child has been placed

A Children’s Court may issue a summons requiring a person named in the information to attend court and produce a child.

When a person under eighteen appears to a court in proceedings, the Court must inquire into their age and may take evidence (including medical evidence) to determine it.

If a court places a child in a rehabilitation school, the court must not order a parent or guardian to pay any money for the child's maintenance.

The Cabinet Secretary may enter into agreements with other countries to allow children ordered by a Kenyan court to be received, placed, or returned under that country's law; children subject to such orders may be removed by warrant signed by the Cabinet Secretary into countries with such agreements and placed there; foreign court orders of partner countries received in Kenya have the same effect as Kenyan court orders.

The provisions of the Criminal Procedure Code relating to bonds for good behaviour, including provisions about their enforcement, apply to bonds entered under this Part.

Section 170 lists objectives for foster care placement (protect and nurture children; promote long-term parental care aiming for family reunification; accommodate children in safe alternative family relationships for long periods; provide social and economic stability for children without stable family support; promote family relationships reflecting Kenya's cultural, ethnic and community diversity) and states that when a child needs care and protection (including where the Secretary intervenes or a Court orders), the child shall initially be placed in family-based alternative care.

Foster-care arrangements must start by application to the Secretary and are limited to an initial period not exceeding twelve months, extendable from time to time up to three years in the aggregate; no child may be placed under foster care for more than three years without a court order obtained on application specifying the grounds.

Sets conditions for foster care placement: placement may occur by the Secretary’s direct intervention or by Court order; the Secretary may place children from certain institutions with foster parents; a child subject to a care order for a criminal offence cannot be placed without the Court's leave; foster parents must maintain the child as if they were the parent.

Sets application and procedural rules for foster care: prospective foster parents must apply in the prescribed form; the Secretary must conduct due diligence and prepare a report; parents/guardians and certain institution managers have the right to make representations; emergency carers may provide temporary foster care up to three months but must give prescribed notice to the local Officer Commanding Station, who must notify the Secretary within 24 hours.

Specifies who may qualify as foster parents (spouses and single persons aged 25–65), bars appointment of convicted or non-resident persons, restricts removal of a child from Kenya without Court leave, and allows exceptions including for applicants to be foster parents of intersex children.

The Secretary must not authorize a foster care placement of a child when the application was not made following the procedures in rules under this Act.

Limitation on the number of children placed under foster care in a household

Persons must not keep a child with unidentified parents/custodians for foster purposes unless they first notify the Secretary; registered charitable children institutions working with the Secretary must keep a register of prescribed particulars; the Secretary must keep the Foster Care Register of foster care placements as specified in regulations.

The Secretary may direct that a maintenance agreement be made between the foster parent and the parent or guardian of a child placed in foster care, and any such maintenance agreement is legally binding on the parties.

The Secretary may direct in writing the termination of a foster care placement if, in the Secretary’s opinion, the termination is in the best interest of the child.

A person who, without reasonable cause, contravenes any provision of this Part commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both.

The Cabinet Secretary must make regulations to better carry out the provisions of this Part.

The Chief Justice may make court rules of procedure and practice in matters relating to foster care placement.

The High Court may, subject to the Act and on an application in the prescribed form, make an adoption order authorising an applicant to adopt a child.

Adoption prerequisites: council declaration and child age requirement; persons must not entrust a child to unqualified persons before an adoption order; the Secretary must monitor and report; contraventions of subsections (1) or (2) are offences punishable by up to three years' imprisonment or a fine up to one million shillings, or both.

Children resident in Kenya may be adopted; applicants must have had continuous care and control of the child in Kenya for three consecutive months before filing and must file an application supported by a report from a duly registered adoption society, and that report must contain the society’s findings and recommendations.

Sets who may apply to adopt: a sole applicant or two spouses jointly, age and relationship requirements and restrictions, who must give consent, and the Court's discretion.

The Court may dispense with required consents for an adoption order in specified circumstances and may treat certain consents as unreasonably withheld.

When an adoption order is applied for, the Court must appoint a fit person as guardian ad litem for the child.

The Court may make interim orders concerning custody, welfare and parental responsibility; persons who consented to an adoption must not remove the child from the applicant's care except with the Court's leave; the Court must make a wardship order and require a security bond when it makes an order under this section; failure to return a child as ordered is an offence with imprisonment up to three years or a fine up to two million shillings.

Sets criteria for reviewing an adoption and contemplates revoking an adoption order or arranging joint custody where specified conditions are met.

All efforts to trace the child’s parents and relatives and reunify with them have, despite State support, failed; and

Adoption by citizens of Kenya who are not ordinarily resident in Kenya.

Kinship adoption orders may only be made in favour of a relative of the child; the Cabinet Secretary may make regulations to give effect to this Part.

Lists factual conditions and steps relevant to making an adoption order and enumerates measures the Court may require of an adopter (such as provision for the child, supervision, removal restrictions, traditions, security and periodic reports for non-resident adopters).

When making an adoption order, the Court may appoint a guardian for the child to take effect if the adopter(s) die or become incapacitated before the child turns eighteen; the Court may later revoke that appointment and appoint another guardian on application before the child turns eighteen.

The Court may make adoption orders (including interim orders) for a child who has previously been adopted under this Act or any Commonwealth jurisdiction; adopters under the previous or last adoption order are deemed to be the child's parents for applications under subsection (1).

If the Court declines to make an adoption order, the Court may make an order about parental responsibilities for the child.

A person aggrieved by a court order about an adoption application or parental responsibility under this Part may appeal to the Court of Appeal.

The Court may vary an adoption order on the adopter's application to correct particulars; the Court must direct the Registrar to cancel register entries if the order is quashed or overturned; the Registrar must update the Adopted Children Register when an order is varied.

The Registrar must keep an Adopted Children Register and make court-directed entries; the Court must direct issuance of certified copies on payment of prescribed fees; the Registrar must keep a record linking birth entries to adopted-children entries.

Adoption orders by the Court must direct the Registrar to enter the child in the Adopted Children Register in the prescribed form; if the child’s precise birth date is not proved the Court must determine a probable date which will be deemed the date of birth; where an adoption order relates to a child already linked to a birth register entry the Registrar must mark that birth entry "Adopted" or mark as "Re-adopted" if the child had been previously adopted under this Act.

Upon an adoption order, the adopter acquires the rights, duties and liabilities of the child's biological or previous guardians (including custody, maintenance, education, guardianship appointments, inheritance and marriage consent), joint adopters stand to the child as lawful parents, and for marriage law an adopter and the adopted child are treated as within prohibited degrees of consanguinity.

For purposes of the Work Injury Benefits Act, a child a deceased employee was authorised to adopt is deemed a member of the employee's family, and an adopter is deemed the parent of a deceased child whom he was authorized to adopt.

If an adoption order is made for a child who was previously under a care order, that care order immediately stops having effect; likewise, a maintenance order for such a child ceases to have effect on the date of the adoption order (subject to recovery of arrears).

If, after an adoption order, the adopter, the adopted child or any other person dies intestate, the property devolves as if the adopted child were the adopter's biological child; subsection (1) does not apply to property subject to settlements or entailed interests made before the adoption order; and subsection (3) prescribes how references to children and relations are to be construed.

Adoptions made in other countries that fall within this section have the same effect as an adoption order made under this Act; certain foreign adoption orders must be lodged in Court when the adopter is resident in Kenya.

Makes it unlawful for adoption agencies, institutions, individuals or public officers to arrange adoptions unless the placing body is duly registered as an adoption society.

It is prohibited to willfully and without lawful justification take part in or facilitate the adoption of a child unless the association is registered as an adoption society; unregistered managers arranging adoptions commit an offence punishable by up to ten years' imprisonment or a fine up to two million shillings; a body corporate contravening this Part is liable to a fine up to five million shillings.

Adoption societies must make inquiries and investigations and obtain reports (as prescribed or as the Court directs) to try to ensure the suitability of a proposed adoption of a child.

Members or officers of adoption societies and persons employed in administering the Act must treat all documents and information relating to adoptions and the parties involved as secret and confidential.

Prohibits giving, agreeing to give, receiving or arranging payments or rewards in consideration of adopting a child, while listing specific permitted payments.

Advertising is prohibited in relation to the listed adoption matters; anyone who contravenes this prohibition commits an offence punishable on conviction by up to twelve months imprisonment or a fine up to two hundred thousand shillings, or both.

If a corporate offence is proved to have involved the consent, connivance or neglect of a director, manager, committee member, secretary or other officer, that person is treated as having committed the offence and is liable to the penal sanctions prescribed by the Act.

Regulates and maintains supervision over adoption societies and persons or associations that purport to assist in arranging adoptions of children.

The Chief Justice may make rules of Court directing how applications are made and proceedings undertaken under this Part.

A Children’s Court may try a child for any offence except murder; this is stated notwithstanding Part II of the Criminal Procedure Code.

Police officers must notify a childs parent or guardian and the Secretary or an authorised officer within twenty four hours of arrest, summons or written notice; Childrens Officers must assess the child in a secure, child-friendly place and in a manner that considers the childs comfort and best interests, following the Fifth Schedule.

Courts (other than Children’s Courts) may or, where a subordinate court has an established Children’s Court in its area, shall remit a child’s case (not murder and not charged with adults) to a Children’s Court; the remitting court must send a certificate and may give directions about custody or bail; the Children’s Court may deal with the offender as if tried and convicted by it.

Child offenders have a right to privacy during arrest, investigation and other stages; persons must not publish identifying information about a child offender; contravention is an offence punishable by a fine not exceeding five hundred thousand shillings or imprisonment up to 12 months, or both.

Children under 12 are not criminally responsible; children under 14 who commit an offence are presumed unable to tell right from wrong unless the court decides otherwise; the Part still applies to persons who turn 18 before proceedings conclude.

Section 222 grants children the right to be heard in proceedings and lists fair trial rights; it entitles parents, guardians and fit persons to assist and requires the State to provide communication mechanisms for children in conflict with the law.

Detention or institutionalization of children pending trial must be used only as a last resort and, where reasonably practicable, replaced by alternatives; detention must account for the child’s particular needs (age, gender, type of offence, mental and physical health or disability) and protect them from harmful influences and risks.

Procedure in cases of children in conflict with the law: diversion in accordance with this Act; or

Courts must prioritize the best interests of a child brought before them and, where appropriate, remove the child from undesirable surroundings and secure provision for maintenance, education and training; children in remand or custodial care who are ill or complain of illness must be promptly examined and treated by a qualified medical practitioner.

The provision states an object is to make use of alternative methods to hold children accountable for unlawful acts or omissions that result in harm to other persons.

Authorised officers or judicial officers must, in the first instance, consider a child for diversion when the child is eligible for diversion under this Act.

A preliminary inquiry must be held in respect of every child prior to plea, with specified matters to be considered; the Chief Justice may make rules of procedure for such inquiries.

Determination of a child’s age; a previous determination of age by a magistrate under this Act or any other written law.

A magistrate conducting the preliminary inquiry under section 228 may apply any of the diversion options in this section to a child who is eligible for diversion.

When ordering diversion, the magistrate must identify a children's officer, a probation officer, or another suitable person to monitor the child's compliance with the diversion option.

Children officers must convene another family group conference within 14 days if the scheduled conference fails to take place; participants must follow agreed procedures; children officers must record and furnish agreed plans; officers must notify magistrate and DPP if a child fails to comply; children officers must remit matters to the magistrate if participants do not agree.

Assistance to child offender in court; the right to remain silent.

The Chief Justice must make Court rules of practice and procedure in diversion.

A child accused of an offence must be promptly and directly informed of the charges against him or her.

Court must prioritize the best interests of a child before it, remove them from undesirable surroundings and ensure maintenance, education and training; officers must secure medical examination and care for remanded children who are ill; parents and guardians of remanded child offenders have a right to access the child.

The words "conviction" and "sentence" must not be used in relation to a child; references to conviction or sentence regarding a child are to be construed as findings of guilt or orders upon such findings.

Courts must not imprison children, must not impose the death penalty on a child, and Children’s Courts must not send children under twelve to rehabilitation schools.

Lists methods and orders that may be used to deal with a child in conflict with the law, and allows the Court to impose other sanctions it considers just.

The Court may, when making a probation order, require a child subject to that order to undergo mental treatment or professional counselling under a medical practitioner or counsellor.

The Court must order fines, compensation or costs to be paid by a child’s parent or guardian in specified cases; the Court may order a parent or guardian to give security; the Court must not make such orders without giving the parent or guardian an opportunity to be heard; sums ordered from a parent or guardian may be recovered as if they were convictions; a parent or guardian may appeal to the High Court.

Names a "Special police unit" and states it deals with children matters.

The Chief Justice may make rules of court about how proceedings for a child accused of an offence are conducted.

A person aggrieved by acts of the Secretary or an authorised officer may appeal to the Cabinet Secretary within fourteen days; the appeal must be in the prescribed form; the Cabinet Secretary must make regulations prescribing the appeal procedure.

The Council must develop a code of conduct for its members and staff.

A person convicted of an offence under this Act for which no other penalty is prescribed is liable to imprisonment for up to twelve months, or a fine up to two hundred thousand shillings, or both.

Grants a general power to make regulations prescribing anything that may be prescribed under this Act.

Childrens institutions receiving public funds must keep proper books and records in accordance with the Public Finance Management Act; their accounts must be prepared, audited and reported under the Public Audit Act. The Cabinet Secretary may authorise grants in aid to adoption societies, foster parents or charitable childrens institutions from time to time.

Repeals The Children Act (No. 8 of 2001) and provides that transitional provisions in the Seventh Schedule take effect on commencement.