Child Rights and Child protection is an area that is often neglected. The protection and promotion of children’s rights is a foundation of any just and equitable society. In Kenya, the enactment of the Children’s Act 2022 represents a progressive milestone in advancing the welfare and rights of children in accordance with both national and international legal frameworks. This Act repealed the earlier Children Act 2001, aligning domestic law with the Constitution of Kenya (2010), international conventions such as the United Nations Convention on the Rights of the Child (UNCRC) (1989) and the African Charter on the Rights and Welfare of the Child (ACRWC) (1990). The Children’s Act 2022 aims to strengthen child protection mechanisms, enhance accountability, and create a rights-based framework that places the best interests of the child at the forefront of all decision-making processes.
It was enacted to implement Article 53 of the Constitution of Kenya, 2010, which guarantees every child’s right to protection from abuse, neglect, harmful cultural practices, hazardous labour and to parental care, survival, development and participation.
At the core of the Act is the best interests principle, which is both constitutional and statutory. Section 8(1) of the Act states that in all actions concerning children, whether undertaken by courts, welfare institutions or administrative bodies, the best interests of the child shall be the primary consideration. This requirement binds all adjudicators, from Children’s Courts to the High Court, ensuring that decisions protect children’s rights above competing adult interests.
The Act imposes affirmative duties on parents, Part III provides for parental responsibility, including financial maintenance, care, protection and the provision of basic needs. Furthermore, The Act criminalises and prohibits all forms of child abuse, exploitation and harmful cultural practices and Recruitment into armed groups, hazardous labour, sexual exploitation and abandonment.
The Children Act, 2022 has already influenced judicial decisions in family and child protection matters.
RECENT DEVELOPMENTS OF THE PRINCIPLE OF THE BEST INTERESTS OF THE CHILD.
In Re N (Baby) (Adoption Cause E011 of 2024), In May 2025, the High Court ruled that any decision affecting a child must holistically factor in the child’s welfare, including relationships with parents/caregivers, emotional security, developmental needs, stability of living arrangements, and protection from harm. The court restated that Section 8 requires that the best interests be the primary consideration in every child related action, in line with constitutional demands.
In Re CP [ Adoption cause E156 of 2025], In September 2025, the High Court reaffirmed that Sections 8(1)–(3), together with the First Schedule, obligate courts to prioritise the child’s welfare when granting adoption or making other child-focused orders. The judgment underscored that assessing best interests involves weighing a child’s stable living environment, emotional bonds, developmental needs and views (if matured enough) , clearly reflecting the statutory criteria.
In the case of JCK vs EC [ Children’s appeal case no EO38 OF 2024 [2025], In this High Court appeal from Eldoret, the court considered a custody and maintenance dispute involving two minors. The trial court had issued orders on physical custody, shared legal custody, school fees, upkeep and access. The High Court dismissed the appeal, upholding the trial court’s judgment. In doing so, the court referred explicitly to Section 8(1) of the Children Act 2022, reaffirming that the best interests of the child is the primary consideration in all child matters, both in Children’s Courts and on appeal.
In MNN vs AM [Civil Appeal 159 of 2023 [2025] , In this appeal from Meru, the High Court dealt with a custody battle where the appellant challenged the Children’s Court decision that awarded joint custody to both parents, with specific terms for school terms and holidays. Although the appeal was struck out for procedural reasons, the case illustrates how the Act’s principles guide decision-making in custody and care disputes. The Children’s Court applied Section 8 of the Act, focusing on the best interests of the child in structuring custody and care arrangements. The judgment emphasised continuity of care, educational stability and emotional wellbeing, all core elements of the Act’s protective framework.
In Conclusion, Section 8 of the Children Act,2022 has rapidly become a cornerstone of child protection law in Kenya. It elevates the best interests of the child from constitutional principle into day-to-day legal and administrative practice, supported by detailed criteria in the First Schedule, widespread judicial application, and increasing public awareness.