THE ESK LEGAL BRIEF
SPOTCHECK ON THE CHILDREN ACT, 2022: OVERLOOKED PROVISIONS, UNDERUTILISED MECHANISMS AND EMERGING PRACTICE IN KENYA
Introduction
The Children Act, 2022 (Act No. 29 of 2022) was enacted principally to give effect to Article 53 of the Constitution marking an important milestone in the development of Kenya’s child-rights and child-protection framework, while consolidating and modernizing the law relating to children’s rights, parental responsibility, alternative care, care and protection, and children in conflict with the law.
The Act elevates the best interests of the child to a paramount consideration by strengthening procedural safeguards for children in conflict with the law, protects children’s privacy and establishes institutional structures intended to coordinate child-protection services. Further, the act addresses the child’s rights to survival and development, name and nationality, parental care, healthcare, education, privacy and protection from abuse and harmful practices.
Four years after commencement, the emerging jurisprudence suggests a mixed picture. Some provisions have been judicially developed and are increasingly influential while others remain underutilized. Some have been overtaken by developing regulations and institutional practice while others still contain genuine statutory gaps which courts have been unable to resolve comprehensively without legislative intervention.
The implementation of the Children Act is evolving backed by other Acts enacted to protect the Children’s rights such as the Children (Foster Care) (Practice and Procedure) Rules, 2024 and the Children (Guardianship) (Practice and Procedure) Rules, 2024. At the same time, the Government has been promoting more regulations dealing with adoption, foster care, welfare programmes, care and protection, charitable children’s institutions and the National Council for Children’s Services.
However, despite the Act being enacted, its implementation remains uneven, transitional and incomplete, particularly in areas where statutory rights depend upon coordinated administrative action. This article seeks to focus on areas where the distance between the statutory text and everyday practice remains particularly significant.
i. Evolving Cardinal Principle of Best Interests of the Child
Section 8 of the Children Act requires that, in all actions concerning children undertaken by courts, administrative authorities, social welfare institutions and legislative bodies, the best interests of the child shall be the primary consideration. Further, this provision requires judicial and administrative institutions exercising statutory powers to treat the child’s interests as the first and paramount consideration, subject to the objectives specified in the Act and that a child be given an opportunity to express an opinion in appropriate cases, having regard to age and maturity.
The First Schedule is more practical as it moves the principle beyond abstraction by identifying considerations such as the child’s age, maturity, development, background, special needs, relationships, and other circumstances relevant to the child’s welfare. This has an important practical consequence as a substantive decision-making obligation. A decision-maker dealing with a child should not merely state that the decision is “in the best interests of the child”; rather the decision should demonstrate how the best-interests assessment was undertaken.
In the case of PM (as father and next friend to TK a minor) & another v Republic through the DPP [2025] KEHC 17675 (KLR) the High Court of Kenya in its decision emphasized that “Section 8 imposes a mandatory obligation on persons exercising executive and judicial authority to promote the welfare of children and that the best interests analysis is not limited to the child accused; where several children are involved, the interests of all affected children must be considered.”
The unresolved issue is how consistently Section 8 is applied outside the courtroom, i.e in school disciplinary decisions, medical and reproductive-health decisions, child-protection interventions, police investigations, adoption and guardianship proceedings, child labour interventions and decisions concerning children with disabilities. Rarely are children’s opinion and best interest prioritized in decision making.
Section 8 should be treated as a decision-making tool, not merely a statutory slogan in all areas involving the best interest of a child. This can be implemented as follows:
• Identifying competing interests;
• Explaining the child’s circumstances;
• Addressing the child’s views where appropriate;
• Identifying the statutory factors and demonstrate why the proposed order advances the child’s welfare; and
• Making the child aware of the issues and decisions.
ii. Privacy and Confidentiality: Section 220 and the Digital Courtroom
The protection of a child’s identity is one of the areas where recent jurisprudence provides a particularly powerful warning to practitioners and institutions and the child’s entitlement to privacy and confidentiality is enshrined under Sections 27 and 220.
Section 27 protects children from unlawful interference with privacy and requires personal data concerning a child to be processed in accordance with the Data Protection Act, 2019.
Section 220 provides that a child offender has a right to privacy during arrest, investigation and at every other stage of the proceedings. This section prohibits the release of information for publication which may lead to identification of the child. Contravention constitutes an offence punishable by a fine of up to Ksh. 500,000/=, imprisonment for up to twelve months or both.
In the case of Law Society of Kenya (Suing as Next Friend of and on behalf of DMM & BNM) v Chief Registrar of the Judiciary & 4 others [2026] KEHC 861 (KLR), it was found that children’s names appeared in charge sheets, court registers, cause lists and the Judiciary’s electronic systems. The High Court held that the disclosure violated the children’s constitutional and statutory rights to privacy and dignity and stated that “the use of initials rather than full names was required in the circumstances and issued orders requiring offending names to be expunged and substituted with initials. It also directed the National Police Service Commission to implement children’s-rights training concerning the handling of matters involving minors and prohibited disclosure of a minor’s identity in legal proceedings unless sanctioned by the court.”
iii. Reproductive Health and Children’s Access to Information
Section 16 provides that every child has a right to healthcare and expressly includes access to age-appropriate information concerning health promotion, mental health and reproductive health. It also recognizes confidentiality concerning health status, subject to the child’s best interests. The Act further provides for information affirming human dignity in human relationships and promoting sexual-risk avoidance.
However, we note that the Act does not provide for mechanisms for implementation and access of this rights, it fails to spell out what constitutes age-appropriate information, who is responsible for providing it, the role of health facilities, parental consent, confidentiality, children with disabilities and more importantly the consistency between legislation, education policy and health policy.
Section 16 also expressly provides that reproductive health services to children are subject to the express consent of a parent or guardian. This provision therefore requires practitioners to draw a careful distinction between the information, healthcare, confidentiality and consent.
iv. Alternative Care, Foster Care and Adoption
The Children Act, 2022 expressly prioritises family-based care and establishes frameworks for alternative care, foster care, kinship adoption, guardianship and adoption. The Children (Foster Care) (Practice and Procedure) Rules, 2024 further provide a procedural framework for foster-care applications, extensions and termination, with the best interests of the child guiding implementation and home-based foster care being prioritised in the first instance.
Recent practice also demonstrates the child-centred approach contemplated by the Act. In Re SN (Baby) [2025] KEHC 123 (KLR), the High Court, in a kinship adoption proceeding, considered the applicants’ suitability, the requisite consents and the
child’s own consent before determining that the adoption was in the child’s best interests.
Sections 11 and 12 reinforce the right to parental care and the obligation to provide appropriate alternative care where separation from parents is necessary. Yet, a pressing question remains: are these statutory protections translating into meaningful family-based care for children who are abandoned, separated from their parents or living on the streets? The increasing number of children falling into the care of charitable institutions and societies suggests a potential disconnect between the Act’s vision and its implementation.
Failure to comply with the rules can have adverse consequences and depending on the circumstances, the court may strike out the suit, require the appointment of the proper representative or allow an amendment where the defect is minimal or curable.
v. Child Protection Units and Institutional Accountability
The Children Act establishes child protection units as facilities intended to provide a safe and non-threatening environment for children. The statutory framework also assigns responsibilities to police, children’s officers, county governments and other institutions. Section 223 requires that detention-pending trial be replaced, where reasonably practicable, by alternative measures and that detention conditions take account of the child’s age, gender, offence, health and special needs.
How ESK Advocates LLP Can Help
At ESK Advocates LLP, we provide comprehensive legal advice and representation in children matters ensuring the child’s best interest is preserved and protected. Our services include child custody and maintenance matters, adoption matters and defending and watching brief in cases where the child is in conflict with the law. We also assist clients in making the right decision on the cause of action to take in the event child rights are violated. By identifying potential legal and procedural issues at an early stage, we help our clients protect their child’s interests, explore the legal structures and make informed decisions in relation to their child’s rights.
Article By:
Anastacia Njambi
Legal Assistant
Disclaimer:
This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.
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