CHILDREN AND THE LAW

ALTERNATIVE FAMILY CARE IN KENYA

GROUP 3
GROUP 3 MEMBERS

CLARA ATSANGA LAW/M/0449/05/16

DOREEN SANG’ LAW/M/1050/09/16

DORCAS AYERE LAW/M/1489/09/16

FRANCIS OCKOTCH LAW/M/1659/09/16

CLIFFORD WEKESA LAW/M/0370/05/16

INTRODUCTION

Laws and policies in Kenya do not give a proper definition of alternative care; however, a
comprehensive look at Kenyan legislative framework would revile how fundamental children
welfare is. Alternative family care in Kenya is embedded in legislations and policies to get a
proper look at what it entails all legislations and policies have to be read together. 1

Alternative family care can be defined as the administrative or judicial decision to ensure
that a child is cared for at least overnight away from the parental home. 2 Children Act lists
alternative family care to include, foster care, adoption, guardianship and care and
protection of children.3

TYPES OF ALTERNATIVE CARE

Guardian: “in relation to a child includes any person who in the opinion of the court has
charge or control of the child;”4

Kinship care: “Family-based care within the child’s extended family or with close friends of
the family known to the child, whether formal or informal in nature.”5

Kafala: to provide child care to vulnerable children recognised by Islamic law by providing
financial support or any other kind of support needed to a child in an extended family or
parental care or in other cases taking a child to live on a permanent basis as recognised by
Islamic law.6

Adoption: it is the legal placement to a child to a permanent home where the legal duties and
responsibilities of a parent are transferred to the adoptive parents.7

Institutional care: this is a large residential area where children live, it is staffed by salaried
care givers or volunteers.8
1
MINISTRY OF LABOUR, SOCIAL SECURITY AND SERVICES, GUIDELINES FOR THE ALTERNATIVE
FAMILY CARE OF CHILDREN IN KENYA, 2014
2
ibid
3
Children Act, 2012 [2010]
4
Children Act, 2012 [2010] section 2
5
UN General Assembly, the Guidelines, Article III, 29c.i.
6
Cantwell, N. and S. Jacomy-Vite, Assessment of the Alternative Care System in the Syrian Arab Republic,
Ministry of Social Affairs and UNICEF, 2011.
7
International Social Service (ISS)/ International Reference Centre for the Rights of Children Deprived of their
Family (IRC), Rights of the Child in Internal and Inter-Country Adoption: Ethics and Principles Guidelines for
Practice, ISS, Geneva, 2004;
8
NGO Working Group on Children Without Parental Care, ‘Identifying Basic Characteristics of Formal
Alternative Care Settings For Children: A Discussion Paper’, 2013.
Despite the progressive legal framework in Kenya children rights are still violated
approximately 2.4 million children are classified as either orphaned or vulnerable. 9 The aim
of this research is to examine alternative family care system in Kenya with the main focus
being foster care.

RATIONALE BEHIND FOSTER CARE

Foster care is defined by UN guidelines as “Situations whereby children are placed by a

competent authority for the purposes of alternative care in the domestic environment of
a family, other than children’s own family, that has been selected, qualified, approved
and supervised for providing such care.”10

Research has shown that lack of nurturing love and individual attention brought about by
institutional care has negative effect on a child’s social, emotional, cognitive and intellectual
development.11

In Kenya informal alternative care is most common, also known as kinship care where a
private arrangement between family members exists without any administrative of judicial
orders resulting in a child living with a family member.12 The problem with this system is that
lack of administrative input may result in violation of children rights, in some cases abuse,
violence against the helpless child hence the need for a proper fostering system in Kenya.

CURRENT LEGISLATION ON CHILD ADOPTION

The Children’s Act (2001) and the Children (Practice and Procedure Parental
Responsibility) Regulations, 2002 are the main legislation on adoption in Kenya.

Under Section 154, The High Court is the court mandated with the jurisdiction to hear an act
on applications made to it, the applications herein known as adoption orders.

The other important bodies in the system are the:

9
UNICEF Overview: Kenya at a Glance’, available at: www.unicef.org/kenya/overview_4616.html accessed
1500hours
10
UN General Assembly, the Guidelines, Article III, 29c.ii.
11
‘The Development and Care of Institutionally Reared Children: The Leiden Conference on the Development
and Care of Children without Permanent Parents’, Child Development Perspectives, Volume 6, Number 2,
2012, p 174-180.
12
www.bettercarenetwork.org/library/principles-of-good-care-practices/gatekeeping/making-decisions-for-the-
better-care-of-children-the-role-of-gatekeeping-in-strengthening-family accessed 1622hours
• National Adoption Society - Child Welfare Society of Kenya (established by the
Child Welfare Society of Kenya Order, 2014)

• Adoption Committee comprising a director, 4 representatives from children

institutions, one representative from Kenyatta National Hospital, one from Law Society of
Kenya and three others. This body is paramount, as it formulates policies on adoption in
Kenya, cooperates between Non-governmental institutions and the government and propose
officers for guardianship.

Section 162 deals with International adoptions, which is the contentious issue in the current
systems in Kenya. Although the pre-requisites are stated – express consents, satisfaction to
the Court and authorization that the persons are suitable – a large challenge still exists in
child kidnapping by foreign nationals in Kenya.

The Kenyan government, in response to a report in 2017 by a committee of experts, decided

to halt renewal of licenses for children’s homes, abstaining from granting licenses to new
ones. These children homes are in need of financial and material support, that leads them to
bend the rules on adoption when approached by foreign nationals who wish to take children
without following the legal prescriptions required.

In 2014, the Cabinet issued a high-level directive against taking Kenyan children for adoption
abroad, after imposing an indefinite moratorium, following the United Nations identifying
Kenya as a hub for child trafficking.

CHALLENGES OF ALTERNATIVE CARE SYSTEMS IN KENYA

Basically, for most Kenyans even those working in the legal system tend to go for
institutional care as the go to choose for children in need of protection and care. This
however leads to the increasing number of children growing up in institutional care. The best
environment a child should always grow around is a family this is important so as to provide
the child with skills for functional adulthood, constant one-on-one attention and affection,
exposes them to networks within the community and ensures their protection.13

13
Obange Millicent, ‘Alternative family care’ <
https://www.accikunity.org/wp-content/uploads/2019/05/Alternative-family-care-by-Obange-Millicent-A.pdf>
accessed on 15th July 2020
In the instance where the biological family is not the best environment for the child
alternative care systems must be sought for. This maybe due to death of the parents or
guardian, neglect, abuse etc. In Kenya some of this alternative care system include:

i. Guardianship,
ii. Adoption,
iii. Foster care and
iv. Kinship care.

These provide the child with a family set-up. Our aim today is to look at some of the
challenges facing these alternative care systems in Kenya. Which are:

a) Informal care arrangements.

As one of the most commonly used ways of child placement in Kenya mostly through the
method of kinship care, families place the care of their children under family friends. 14 There
many reasons as to why families opt for informal care arrangements, one being in the case
where a parent may fail to provide for the child the parent may use this means in order to
secure a future for their children maybe through guaranteed access to school in better
locations. The challenge with this is that there are no regulations governing this practice. This
also brings about issues with child protection the child may be at risk of abuse or violation of
their rights and lack a way of speaking out through this system.15

b) Economic Strain.

Even before the pandemic its well known that many Kenyans are poor and thus lack access to
the most basics of needs, these therefore makes it hard for systems such as the foster care to
operate cause if a person if having difficulty providing for him/herself how will they be able
to provide for a child under their care. In some countries such as the United States, the
government reimburses foster parents for any expenses regarding foster children. Although
this may also bring about the challenge of people taking advantage of such systems to benefit
themselves. Also, in terms of adoption, it maybe considered costly to some Kenyan hence
they may want to adopt a child but the whole process maybe costly to the person wanting to
adopt.16
14
Ibid.
15
SOS Children’s Villages Kenya, A snapshot of alternative care arrangements in Kenya. 2013 pg. 6
16
Obange Millicent, ‘Alternative family care’ <
https://www.accikunity.org/wp-content/uploads/2019/05/Alternative-family-care-by-Obange-Millicent-A.pdf>
accessed on 15th July 2020
 c) Poor coordination of services

Even with the robustness of national legislations on protection of a child, there’s still a lack
of clarity over the roles of the National Council for Children’s Services, the Department of
Children’s Services and by implication the area advisory councils. 17 This has then lead to
conflict between and within different institutions thus compromising the quality of child
protection services. An example would be the training and vetting of staff working at the
child care centers, by which there is no general standard policy on the level of vetting and
training that is required meaning that they vary from institution to institution.18

d) Lack of information

Most Kenyans do not know about the foster care system in Kenya. Like adoption, formal
foster care has largely been left to the educated elite in Kenya. Young people do not know
that they can help a child in need of care and protection. Further still, most Kenyans do not
understand the adverse effects of institutionalization on children.19

e) Reporting child abuse and reporting.

Even with the high levels of child abuse in the country there seems to be a reluctancy in
report such cases, particularly where the families know the perpetrators. Abuse that occurs
within alternative care institutions are rarely reported or is inadequately addressed when
allegations involve care givers. Even with the provisions of national policies that provide for
child abuse reporting mechanisms and the awareness of the child to their rights to complain
and the processes available such as the ChildLine there is still inadequate structures for
dealing with some of these complaints once made.20

Other challenges include Fear and Biasness.

SOUTH AFRICA

Foster care system is not a unique concept in one country but a global concept. The term
foster care was first introduced to South African law in the children’s act of 1960.21 Section

17
Mbugua, 2012, available at: resourcecentre.savethechildren.se/sites/default/files/documents/6628.pdf.
18
SOS Children’s Villages Kenya, A snapshot of alternative care arrangements in Kenya. 2013 pg. 7
19
Obange Millicent, ‘Alternative family care’ <
https://www.accikunity.org/wp-content/uploads/2019/05/Alternative-family-care-by-Obange-Millicent-A.pdf>
accessed on 15th July 2020
20
SOS Children’s Villages Kenya, A snapshot of alternative care arrangements in Kenya. 2013 pg. 7
21
Candice Lynn Fortune, ‘’An Overview of the Foster Care Crisis in South Africa and Its Effect On the Best
Interests of the Child Principle: A Socioeconomic Perspective,’’ (December 2016) University of Western Cape
2722 of the south African Constitution provides for the right to access social security,
including, those who are unable to support themselves and their dependents and for
appropriate social assistance. Section 2823 of the constitution further grants children the right
to basic social services. Furthermore, Section 150 24of the Children’s Act shows how to
identify a child in need of care and protection and these are children who have been
abandoned or orphaned without any visible means of support, those who display behaviours
that cannot be controlled by their parents or care givers, children who have been exploited or
exposed to exploitation, children who are at a risk if returned to the custody of their parents
or guardians a child who is a victim , a child who is in a child headed house hold and a child
who is in a state of mental or physical neglect.

The foster care system in south Africa works with volunteers. These volunteers must attain
certain qualifications to be considered as foster parents. They must be eighteen years and
above, the must be willing and able to take care of a child, finally, they must be able to
provide for a favorable environment for the child’s growth and development.25 However,
majority of the children in south Africa are placed in foster care systems with their relatives,
most of them being their grandmothers and they take responsibility as the primary
caregivers.26

To be a foster parent in south Africa you must apply at the department of social development
or a credited child protection organization in south Africa. After application you are referred
to a social worker who conducts an investigation in 90 days. If the biological parents are alive
they must be involved in the process. The social worker, then compiles the report and
presents it to the children’s court, based on the social workers report the presiding officer
may find the child to be in need of care and protection.27 The officer then issues a court
orders. The orders issued by the court are stipulated under section 156 of the Children’s Act.

Social workers in South Africa are not enough making it difficult for all foster care children
to be looked after since most of the work is done by the social workers. The courts are
overwhelmed due to the many cases it handles leading to a backlog of case that only means
there that there are children who intern are not being catered for making the fostering process
slow. One good thing however is that education and medical bills are free for the foster
children hence the children are able to access educational services which is very beneficial to
them.28

22
Constitution of the Republic of South Africa Act 108 of 1996, section 27 sub- section (1) (c)
23
Constitution of the Republic of South Africa Act 108 of 1996, section 28 sub section (1) (c)
24
Children’s act section 150
25
South Africa, ‘’ Apply for Foster Care,’’ < https://www.gov.za/services/adopt-child/foster-care#:~:text=Foster
%20care%20is%20the%20temporary,or%20guardian%20of%20the%20child.&text=The%20child%20mu >
accessed July 20, 2020
26
Candice Lynn Fortune, ‘’An Overview of the Foster Care Crisis in South Africa and Its Effect On the Best
Interests of the Child Principle: A Socioeconomic Perspective,’’ (December 2016) University of Western Cape
27
South Africa, ‘’ Apply for Foster Care,’’ < https://www.gov.za/services/adopt-child/foster-care#:~:text=Foster
%20care%20is%20the%20temporary,or%20guardian%20of%20the%20child.&text=The%20child%20mu >
accessed July 20, 2020
28
Candice Lynn Fortune, ‘’An Overview of the Foster Care Crisis in South Africa and Its Effect On the Best
Interests of the Child Principle: A Socioeconomic Perspective,’’ (December 2016) University of Western Cape
UNITED KINGDOM

In the early 70s, in the United Kingdom around 29,000 children were in foster care. This rose
to 50% in 1985. The proportion is seen to increase steadily and has been stable at around 73%
to 75% since 2011.29 By March 2017 there were 53,420 children in foster care homes.30

Fostering is a devolved issue in the United Kingdom (UK). Therefore, there are many
legislations and regulations that vary across the UK31. These regulations are put in place to
provide for legal and statutory framework for foster organization.32 The Children Act 198933
is the primary legislation looking after and governing children fostering services. The Care
Standard Act34 sets the regulatory and inspectoral regime and establishes the national
minimum standards. The children’s act 2004 requires local authorities to promote educational
achievement of the foster children and it introduced the children’s commissioner, Local
Safeguarding Boards, directors of children’s services, lead member for children’s services
and minimum fostering allowances. The Children and Young Persons act35 amended the
Children’s act 1989 regarding the placement of foster children and strengthened the visiting
requirements and the role of independent reviewing officer.36

There is also the Fostering Services (England) Regulations 201137 which regulates
fostering services. The Care Planning, Placement and Case Review (England)
Regulations 201038 this specifies requirement for care plans and placement plans, the
placement decisions monitoring and reviewing foster children. The Care Planning and
Fostering (Miscellaneous Amendments) (England) Regulations 201539 introduced a legal
definition of a long-term foster placement and sets out the conditions that must be complied
with before a child can be placed in a long- term care system40.

29
Martin Narey and Mark Owers, ‘’ Foster Care in England,’’ (February 2018) <
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
679320/Foster_Care_in_England_Review.pdf > accessed July 20, 2020
30
Figures provided for residential accommodation 1971 – 1990 consist of children in community homes, and
voluntary homes and hostels. 1991 onwards: children in secure units, homes, and hostels. Figures since 1991
exclude children looked after under an agreed series of short- term placements (recorded for the first time
from 1991, and excluded from previous statistics). 1971 to 1991: All numbers of children have been rounded
to the nearest hundred. 1992 onwards: All numbers of children have been rounded to the nearest ten
31
The Fostering Network, ‘’ Fostering legislation in England,’’ <
https://www.thefosteringnetwork.org.uk/policy-practice/policies/fostering-legislation-in-england > accessed
July 20, 2020
32
Simply Fostering, National Fostering Regulations,’’ < https://simplyfostering.co.uk/how-to-be-a-foster-
carer/fostering-regulations/ > accessed July 20, 2020
33
Children’s Act 1989
34
The Care Standards Act 2000
35
Children and Young persons Act 2008
36
The Fostering Network, ‘’ Fostering legislation in England,’’ <
https://www.thefosteringnetwork.org.uk/policy-practice/policies/fostering-legislation-in-england > accessed
July 20, 2020
37
Fostering Services (England) Regulations 2011
38
The Care Planning, Placement and Case Review (England) Regulations 2010
39
Care Planning and Fostering (Miscellaneous Amendments) (England) Regulations 2015 and come into force
on 1st April 2015.
40
The Fostering Network, ‘’ Fostering legislation in England,’’ <
https://www.thefosteringnetwork.org.uk/policy-practice/policies/fostering-legislation-in-england > accessed
With all these regulations the foster care system in UK still faces challenges like the children
placed in care homes do not perform well as compared to the other students in the country.
Most of the children don’t feel comfortable being placed in those homes. There are also
inconsistencies and a general lack of clarity on compensation and reward given to the care
givers.41

Conclusions and recommendations

1. Consolidation of the legal framework for alternative care

Throughout the development of the Guidelines, and based on experience of alternative care
givers, several gaps were identified in the Children Act, 2001 and a list of recommendations
for inclusion in the amendment of the Children (Amendment) Bill were conceived. The DCS,
in association with stakeholders, will ensure that these recommendations are fused in the
Children Act, 2001. The DCS, in association with partners, shall find and advance
supplementary guidelines and standards as well as revisions to other existing laws that are
vital to effectively implement these Guidelines and strengthen alternative service provision in
Kenya.

2. Resourcing the Guidelines

a) The DCS, in collaboration with other relevant government MDA and stakeholders, shall
cost the implementation of these Guidelines.

b) The DCS and its partners shall advocate to Treasury to increase budgetary allocation to
support the provision of alternative care and protective services for children. It is
recommended that specific financial resources are allocated for i) family tracing and
reintegration activities; ii) family support and prevention services; iii) support to families
with children with special needs; and iv) family-based care service provision, in particular for
foster care and local adoption.

c) The ministry in charge of children affairs and DCS shall work with donors, the private
sector and civil society to garner additional financial and technical support.

d) The DCS shall explore and link these Guidelines with other government and non-
governmental initiatives in order to share financial and technical resources.

e) The DCS shall monitor the finances directed towards alternative care to ensure that both
public and private alternative care providers use resources appropriately.

3. Dissemination and Awareness-Raising

July 20, 2020
41
Martin Narey and Mark Owers, ‘’ Foster Care in England,’’ (February 2018) <
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
679320/Foster_Care_in_England_Review.pdf > accessed July 20, 2020
a) The DCS shall work with the Alternative Care Technical Working Group to develop a
training package and carry out a structured, time-bound and targeted dissemination plan that
includes all 134 key partners and covers all counties and sub-counties.

b) The DCS, in collaboration with stakeholders, shall disseminate copies of the Guidelines to
all responsible parties and institutions.

Bibliography

1. Obange Millicent, Alternative family care.

2. SOS Children’s Villages Kenya, A snapshot of alternative care arrangements in
Kenya. (SOS Children’s Villages International publishing 2013.)