Codifying the best interests of the child in post-divorce custody cases with regard to legal certainty

Abstract

The Children Act of 2001 can be considered to be the most important legal source in Kenya as it is the pioneering statute that introduced the concept of the best interests of the child. The concept was later buttressed by the Constitution of Kenya 2010, Article 53. The concept demands that the child’s best interests be given priority in all matters concerning it. Regardless, it is yet to be defined in law and its contents are yet to be firmly established. It is, therefore, left to the discretion of judges to determine what it entails, a role which has been actively undertaken by judges. This paper shall demonstrate the reason which necessitate the creation of the concept of the best interests of the child. This shall be grounded on the argument that certain legal concepts need to be reduced to formal law. This paper shall then aim to consider the best interests are. In this regard, this paper shall establish the factors that have influenced the creation of the concept as well as its content. This paper shall then discuss the factors that have and continue to influence custody decisions in the different communities in Kenya. The aim shall be to determine where uncertainties may crop up which the formal law seeks to reduce and possibly eradicate. Finally, the paper shall discuss whether the inclusion in the formal law of the factors that shape a decision that is in a child’s best interests will facilitate legal certainty and make custody battle outcomes more predictable.