When it comes to determining child custody, the law prioritizes parental care as the primary basis for awarding custody in the event of a dispute. It acknowledges that a child has an inherent right to live with their parents. However, if a court determines that such a living arrangement is not in the child's best interest, it may order a separation.

In such cases, the court ensures that the child receives the best possible alternative care, with a preference for family-based options. This may include placement with the mother, father, older siblings, or other relatives.

If a court orders the separation of siblings from their mother, it mandates that the siblings be placed together under care and protection, unless compelling reasons justify their separation.

Children who are separated from one or both parents have the right to maintain regular personal contact and relationships with the parent(s) they are separated from, unless the court deems such contact to be contrary to the child's best interests.

Right to Social Security

In instances where parents are unable to support their child, the child is entitled to social security as guaranteed by Article 43(3) of the Constitution. This Article provides that “the State shall provide appropriate social security to persons who are unable to support themselves and their dependents”. This provision ensures that the government provides appropriate social security for individuals who cannot support themselves and their dependents.

"Social security" in regards to Children Matters includes alternative care services, and in particular— adoption, foster care, kinship care, institutional care, guardianship, supported independent living, supported child-headed households, kafaalah, aftercare, among others.

Objectives of Alternative Care

The primary objectives of alternative care are to:

1. Protect the child from abuse, violence, or exploitation.
2. Provide parental care and protection that aligns with the child's best interests and well-being.
3. Ensure a stable, loving, and protective home environment, aiming for permanency as a long-term goal.
4. Place the child as close as possible to their usual place of residence.

It is crucial to note that factors such as poverty, disability, or the need for education should not be the sole reasons for removing a child from their family and placing them in alternative care. Such removal should be a temporary measure and considered only as a last resort, with close monitoring.

Siblings should remain together during the removal and placement process, unless it is unsafe or not in their best interests. Alternative care placements may be initiated by the child, their parents, or other primary caregivers, such as grandparents or other relatives.

To support these efforts, the Cabinet Secretary responsible for finance established the Child Welfare Fund under the Public Finance Management Act (2012) (Cap. 412A). This fund will facilitate the realization of the rights guaranteed by Article 43(3) of the Constitution by covering reasonable expenses related to alternative care and other social security programs aimed at ensuring the child's welfare.

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Disclaimer: This is not legal advice and should not be relied upon as such.

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