Parental responsibility; an interrogation of the Kenyan legal system regarding enforcement of child support orders

Abstract

A critical examination of the enforcement of child support orders in Kenya, with a particular focus on the legal obligations of parents under the Children Act 2022 and Article 53 of the Constitution of Kenya. The Constitution of Kenya aims to protect all citizens, with a special emphasis on the rights and welfare of children, recognizing them as a vulnerable segment of society that requires additional safeguards. Maintenance of children is a fundamental responsibility of parents, as mandated by law, and this duty must not be neglected or left unfulfilled. Despite the strong legal framework, there is a significant gap in the effective enforcement of child support obligations, especially in cases involving single-parent families. This gap has detrimental effects on the welfare of children, contrary to the principles enshrined in both national and international law. Kenya has ratified important international instruments such as the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of the Child, both of which reinforce the obligation of the state to ensure that children’s rights, including the right to maintenance, are upheld. Using a doctrinal methodology, this study analyses the existing legal provisions and their practical application, revealing the disparities in the protection of children due to the lack of a robust enforcement framework. The research is grounded in the best interest of the child principle and the theory of conformity of law, which together underscore the necessity of aligning legal practices with the rights and needs of children. The aim of this paper is to expose the inconsistencies and inadequacies in the current child support enforcement mechanisms in Kenya, which contribute to the insufficient protection of children. It argues for the establishment of a comprehensive enforcement framework that ensures child maintenance obligations are consistently met. By proposing this framework, the study seeks to create a sustainable legal mechanism that upholds the welfare of children, minimising the need for repetitive court interventions and ensuring that parental responsibilities are not abandoned. Ultimately, the research aspires to contribute to the strengthening of Kenya's legal system in a way that better protects its youngest and most vulnerable citizens.