Child maintenance in Kenya: An appraisal of the State’s Legal Obligation in providing maintenance to vulnerable Children

Abstract

Children’s rights in Kenya are guaranteed in the Constitution of Kenya 2010. These rights are also protected by a substantive and procedural statute: The Children’s Act 2022. However, the realization of these rights is impaired by various complexities, such as the push and pull between private rights and state intervention in the family unit. The right to child maintenance is similarly plagued. This study set out to identify and analyse key theoretical concepts on the state’s responsibility towards child maintenance and the legal framework governing it, interrogates the legal framework governing child maintenance in Kenya, explore the existing barriers that hinder state realization of child maintenance through a comparative analysis of South Africa and to come up with recommendations based on these findings. In doing so, this thesis, therefore, interrogates the nature and content of these rights and brings out the core obligations of the state as well as the parents or guardians of a child. The research was based on the assumption that child maintenance is a socio-economic right, and the barriers to their enforcement, such as progressive realization and minimum core obligations, are also stipulated. The right to child maintenance is reviewed in light of the best interests of the child principle, the principle of subsidiarity, and the doctrine of private ordering. In addition, this research explores the burden of child support in Kenya. The study further investigates the relationship between the parents/guardians and the state concerning child support. Finally, there is a review of child maintenance enforcement mechanisms in which a comparison is made between judicial, administrative, and mixed systems for child maintenance enforcement. Under each system, state obligations and public policy measures are reviewed. This study adopted a doctrinal legal research methodology, also called "black letter" methodology that focuses on the letter of the law rather than the law in action as a means of synthesising legal facts. This study found that Kenyan laws align with international instruments touching on child Maintenance. However, we noted a difference in the enforcement mechanism. We also noted that both the state and the parents play a crucial role in contributions toward child maintenance through a hybrid system. Finally, family formation and poverty were the barriers identified during the study. This study concludes that though parents’ primary responsibility for child maintenance is vested, the state must come in when parents fail or cannot provide for their children. The study recommends a review of the Children's Act 2022 to bring it in line with constitutional principles to cover the obligations of the state in the maintenance of children whose parents or primary caregivers are unable or unwilling to do so and also the enactment of legislation to provide material support for those children. The findings will add to the scholarly literature on child maintenance in general and the scope of child maintenance in Kenya in particular. It is an increasingly contentious but little-studied field in Kenya today