The import of declaration of sections 24(3) & 25 of the children’s act as unconstitutional on the protection of the right to parental responsibility

Abstract

Parental responsibility is an essential facet in the overall wellbeing of a child. It takes into consideration the child’s best interest, which is of paramount consideration in any case where a child is involved. Parental responsibility is explicitly provided for under article 53(e) of the Constitution of Kenya and sections 23, 24 and 25 of the Children Act. However, in 2013, The High Court declared sections 24(3) and 25 of the children Act unconstitutional for being in contravention of article 53(e) by not providing for equal parental responsibility. Section 24(3) provides that parental responsibility of a mother can be automatically acquired by virtue of the child’s birth while a father is expected to apply for parental responsibility in accordance with section 25 in the case that they are not married. Section 25 further states that a father is required to apply for parental responsibility or enter into an agreement with the child’s mother to acquire responsibility in the case that they are not married and have not subsequently done so. Despite the declaration, no laws have been put in place to uphold equal parental responsibility. Therefore, this study is conducted based on four objectives: to analyse why the court went ahead to declare sections 24(3) and 25 of the Children Act unconstitutional; to analyse the effects the declaration has had on child laws and parental responsibility; to determine the steps taken by the government to remedy the provision in terms of rights of a child and lastly to investigate current practice regarding parental responsibility in terms of children rights in Kenya.