The Regulations seek to protect children living in difficult circumstances from
neglect, abuse or exploitation.
REGULATION NO. | CONTENTS OF THE REGULATION | OUR COMMENTS |
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Regulation 2 Interpretation | “Act” means the Children Act, 2022. | We propose amendment of this definition to “Children Act, Cap 141 Laws of Kenya” in line with the 24th Annual Supplement Legal Notice No. 221 of 2023. |
“care order” has the meaning assigned to it under section 153 of the Act. | A care order is an order entrusting the care, control and custody of the child to a person other than the parent, guardian or custodian of the child, or an institution appointed by the Court. Secondly, a care order ensures that a child is removed from potentially harmful environments and placed in a safe and secure setting, protecting them from abuse, neglect or other forms of harm. |
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“child” has the meaning assigned to it under section 2 of the Act. | This definition seeks to align the Children (Care and Protection) Regulations (“the Regulations”) with the provisions of article 260 of the Constitution. |
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“child in need of care and protection” has the meaning assigned to it under section 142 of the Act. | A child in need of care and protection is a child who lives in difficult circumstances and needs to be protected from all kinds of neglect, abuse or exploitation. This definition recognizes the multiple dimensions of a child's well-being, including physical, emotional and psychological aspects, ensuring comprehensive protection. Thirdly, this definition facilitates the early identification of children at risk, allowing for timely and appropriate interventions to prevent further harm. |
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“fit person” has the meaning assigned to it under section 2 of the Act. | A fit person is a person whom it is shown to the satisfaction of the Court to be of high moral character and integrity, and who can exercise proper care and guardianship of a child. By emphasizing high moral character and integrity, the definition ensures that children are placed with individuals who are trustworthy and have strong ethical standards. Thirdly, a fit person ensures that children are placed in a safe and nurturing environment where they are protected from harm, abuse and exploitation. |
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“place of safety” has the meaning assigned to it under section 2 of the Act. | A place of safety in the Act includes any institution, school, feeding centre, hospital or other place that is suitable for the temporary care of children, but does not include a children’s remand home, rehabilitation school, police station or child protection unit. The inclusion of this definition has the following benefits: a. schools and feeding centres are familiar settings for many children, which can help them feel more comfortable and less distressed during a period of transition; b. hospitals provide immediate access to medical care, which is crucial for children who may have health issues or need medical attention upon arrival; and c. designating these locations as places of safety underscores the temporary nature of the care of children, focusing on providing immediate, short-term protection while long-term solutions are sought. |
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“rescue centre” means a centre established in accordance with section 63 of the Act. | Throughout the Regulations, we propose the addition of the word “child” immediately before the word “rescue” in line with section 63 of the Act. |
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Regulation 3 Guiding principles | The implementation of the Regulations shall be guided by the following principles: a. ensuring that the best interests of the child are upheld; b. promoting participatory and inclusive provision of care and protection to a child; c. the placement of a child in need of care and protection shall be appropriate to the child’s needs, development and evolving capacities; and d. safeguarding a child in need of care and protection from abuse, violence, exploitation and any other harmful conduct. | Guiding principles provide clarity about the intent and purpose of the Regulations. They help Parliament to articulate the fundamental values and goals the Regulations aims to achieve, ensuring consistency in its interpretation and application over time. |
Regulation 4 Use of institutional care | Where a child is in need of care and protection, the use of institutional care: a. shall at a first instance be limited to taking or placing the child in a place of safety; b. where the child is below the age of three years shall, so far as is reasonably practicable, be placed in family-based care; or c. shall be limited and only as a matter of last resort to any other place other than a place of safety. | For paragraph (a), designating locations as places of safety underscores the temporary nature of the care of children, focusing on providing immediate, short-term protection while long-term solutions are sought. For paragraph (b), emphasizing family-based care for children below the age of three years ensures that young children grow up in a family environment, which is crucial for their emotional and psychological development. |
Regulation 5 Procedure where child takes refuge at a place of safety | Where a child is deemed to be a child in need of care and protection, that child shall be presented or present themselves to a place of safety. The person receiving the child under sub-regulation (1) shall immediately inquire and record: a. the following details about the person presenting the child: i. their name and contact details; ii. the bio-data of the person; iii. the contacts of the person including their telephone contacts and email address; iv. the person’s description of the circumstances of the case; v. any other relevant information; b. the name and gender of the child; c. the age of the child, whether apparent or known; d. the name of the child’s parent, guardian, relative, family friend or other person connected with the child and, if known to the child or the person presenting the child, their telephone contact, or where any of them could be found; e. the physical address of the place where the child resides or the nearest landmark, if known; and f. the reason why the child is not at home or in the company of a relative, parent, guardian, friend or other person connected with the child. The person receiving the child under sub-regulation (1) shall: a. provide age-appropriate assistance to the child and where the child is a child is disability, the assistance shall meet their personal needs, taking into account the condition and nature of the disability; and b. within twenty-four hours of receipt of the child, present the child to an authorized officer or the nearest child protection unit accompanied by a copy of the record containing information obtained under sub-regulation (2). | For sub-regulation 5(2), detailed records create a documented trail of actions taken, enhancing accountability and transparency in child protection efforts. Further, comprehensive and accurate data collection supports informed decision-making for the child’s long-term care and protection arrangements. For sub-regulation 5(3)(a), ensuring that children with disabilities receive assistance tailored to their personal needs guarantees that they are not overlooked or inadequately supported. For sub-regulation 5(3)(a), we propose the deletion of the phrase “where the child is a child is disability” and replacing it with the phrase “where the child is a child with disability”. This proposal enhances clarity by correcting the grammatical error present in this sub-regulation. For sub-regulation 5(3)(b), we propose the deletion of the word “regualtion” and replacing it with the word “regulation”. This proposal enhances clarity by correcting the grammatical error present in this sub-regulation. |
Regulation 6 Verification by authorized officer or the child protection unit | On receipt of a child under regulation 5(3), the authorised officer or child protection unit, as the case may be, shall within twenty-four hours of receiving the child, notify the Secretary and forthwith prepare a report on the child. The report under sub-regulation (1) shall contain the following information about the child: a. the name, address and telephone contact of the person who presented the child at the child protection unit; b. the circumstances under which the person came to be in custody of the child; c. the name and gender of the child; d. age of the child and where not known, the apparent age of the child; e. the name of the child’s parent, guardian, relative, family friend or other person connected with the child and, if known to the child or the person presenting the child, their telephone contact, or where any of them could be found; f. the physical address or a description of the place where the child resides or the nearest landmark, if known ascertainable; and g. any other information which the authorised officer considers necessary for identification and reunification of the child with the child’s parent or guardian. The notification to the Secretary under sub-regulation (1) shall be in Form No. CCP1 set out in the Schedule accompanied by the report prepared under sub-regulation (2). | The addition of timelines in sub-regulation (1) is a good proposal. This proposal ensures that a report on the child is prepared within a prescribed period without delays. Secondly, we propose the re-numbering of the sub-regulations from sub-regulation (2) onwards. This proposal seeks to correct the arithmetic error present in this regulation. Thirdly, the addition of a template in sub-regulation (3) is a good proposal. A template provides a standard format that is easy to understand and use. Further, the use of a template enhances uniformity. |
Regulation 7 Action by the Secretary | Upon receipt of the notification under regulation 6, the Secretary may take charge of the child for a period not exceeding twenty-four hours and shall: a. investigate the circumstances under which the child was considered to be in need of care and protection; b. make reasonable efforts to trace and notify the child’s parent or guardian of the location of the child; and c. take appropriate steps to ensure proper care and protection of the child. Upon establishing the circumstances of child under sub-regulation (1), the Secretary may: a. make arrangements for the child be returned to the parent or guardian (if known), if it is in the best interest of the child; b. place the child in a children rescue centre where the parent or guardian of the child has not been traced; or c. place the child in a charitable children’s institution in accordance with section 71 of the Act. | The addition of timelines in sub-regulation (1) is a good proposal. This proposal ensures immediate protection and care of the child while further steps are planned. For sub-regulation (1)(b), making reasonable efforts to trace and notify the child's parent or guardian supports the goal of family reunification, which is often in the best interest of the child. For sub-regulation (2)(b), placing the child in a children rescue centre ensures that there are safe and supportive environments available to children whose parents or guardians cannot be traced. |
Regulation 8 Placement of a child in a rescue centre | Where a child is placed in a rescue centre under regulation 7, the placement shall be for a period not exceeding six months pending arrangements for alternative care or other intervention under the Act. Within thirty days of placement of a child in a rescue centre under this regulation, the Secretary shall: a. cause a preliminary assessment of the child to be undertaken; b. determine immediate objectives of the placement having regard to the developmental, emotional, social, medical, spiritual, cultural and educational needs of the child. The assessment under sub-regulation (1)(a) evaluate and indicate: a. the immediate needs of the child; b. where determinable in the circumstances, whether the child is likely to be returned home; c. the child’s legal status, including whether the child has been abandoned or is otherwise in need of care and protection within the meaning of section 144 of the Act; d. any other information that, in the opinion of the Secretary, is necessary to facilitate reasonable care and protection. | Child rescue centres provide an immediate safe and protective environment, shielding the child from any harmful or unsafe conditions they may have been experiencing before they are placed in alternative care. |
Regulation 9 Care orders | Where all efforts to trace the parent or guardian of a child have failed, an application for a care order or an interim care order shall be made by: a. the Secretary made in accordance with section 153 of the Act; or b. the charitable children’s institution in accordance with section 71(2) of the Act. The application for a care or an interim care order shall be made in accordance with the procedure of the Court. | The purpose of a care order is to entrust the care, control and custody of a child to a person other than the parent, guardian or custodian of the child, or an institution appointed by the Court. The following are the benefits of a care order: a. a care order removes the child from potentially harmful environments, ensuring their immediate safety and security; b. the child gains access to resources and services that may not have been available in their previous environment, such as educational support, counselling and healthcare; and c. It places the child in a stable and nurturing environment, which is crucial for their physical, emotional, and psychological well-being. For sub-regulation (2), we propose the deletion of the word “Cout” and replacing it with the word “Court”. This proposal enhances clarity by removing the grammatical error present in this sub-regulation. |
Regulation 10 Persons to be entrusted with a child under a care order | Without prejudice to section 153 of the Act, a child under this regulation shall be entrusted to a person or institution that is suitably equipped to cater for the needs of the child which may include: a. a fit person; b. a foster parent registered in accordance with the Act; or c. an institution appointed by the Court, including a charitable children’s institution. | Placing children with individuals or institutions that are specifically equipped to meet their needs ensures that children receive the appropriate care and support required for their unique circumstances. For paragraph (a), By emphasizing high moral character and integrity, this ensures that children are placed with individuals who are trustworthy and have strong ethical standards. Further, a fit person provides a stable and secure home environment, which is crucial for the child’s development and sense of security. For paragraph (c), Court-appointed placements provide an additional layer of legal oversight and accountability, ensuring that placements are made in the best interest of the child. |