Guidelines for the Alternative Family Care of Children in Kenya

Executive Summary

The initial goal of the development of these guidelines was to seek to regulate Guardianship and Foster care of children in the country. The two processes are critical in as far as care and protection of children are concerned.

Later a need arose for the development of guidelines on other alternative care options so as to come up with a document that addresses alternative care in a comprehensive manner so as to guide the Children Act amendments, policy and practice. The scope was widened to include; kinship, places of safety and temporary shelter, adoption, kafaalah, child-headed households, supported independent living, institutional care, care of children in emergency situations and support for aftercare. This document provides the meaning of each of these practices, outlines roles of the different duty-bearers and provides a step-by-step guide on how to provide specific alternative care service. It also provides basic standards to be adhered to.

The guidelines seek to recognize the African Kinship system that have existed over the centuries which unfortunately has not been recognized by the formal legislation. They also seek to develop and promote prevention of separation of children from their family, strengthening of family tracing and reunification and providing options on various exit strategies for children in institutional care.

The guidelines also seeks to recognize and promote the practice of kafaalah of the Islamic faith among the Muslim community. Kafaalah is the commitment by a person or family to voluntarily sponsor and care for an orphaned or abandoned child. The individual or family sponsors the child’s basic needs to health, education, protection and maintenance. Kafaalah is recognized in the UNCRC.

Kenya is a signatory and state party to many regional and international instruments on the rights of the child. Key among these is the African Charter on the Rights and Welfare of the Child (ACRWC) and the United Nations Convention on the Rights of the Child (UNCRC).These have been domesticated through The Children Act, 2001.

It is internationally recognized that children are better placed within a family than in an institution. Institutionalization of children does not give children the basic social, emotional, cognitive and intellectual development.

The Children Act, 2001, under PART VIII sets out the provisions for Guardianship while PART XI deals with Foster Care Placement. The Act further sets out rules in the Fourth Schedule that may be cited as Foster Care Placement Rules. Section 152 of the Act states that Foster care placement shall be set out as set in the Fourth Schedule. On Guardianship, the Chief Justice shall make rules of court. It is worth noting that the development of these guidelines is long overdue but they have been developed at a critical time when the Children Act is being amended. These guidelines will therefore guide the amendments as far as alternative family-based care is concerned.

The guidelines were developed through inclusive stakeholder participation from relevant Government departments, faith-based organizations and civil society. Field visits were conducted to selected subcounties and various meetings were held in Machakos, Nairobi, Naivasha and Nakuru. The process was spearheaded by two leading consultants in the area of child protection. One was sourced from the international pool of experts on care of children without parental care and had coordinated the Better Care Network for several years while the other was sourced locally and had previously been instrumental in the drafting of the current Children Act, 2001.