PRINCIPLE OF BEST INTEREST OF A CHILD : INSIGHTS

Introduction

The purpose of this article is to enable the reader understand the principle of best interest of a child, applicable laws as well as the elements that constitute the notion of best interest of the child.

The principle of ‘best interest of the child’ is a widely recognized principle in child rights protection movement. It largely applies in the realm of family disputes such as custody, guardianship, maintenance, adoption of the child and other issues. The principle is recognized in various international human right instruments such as Convention in the Right of the Child (CRC), which provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies the best interests of the child shall be a primary consideration.” 

The overall theme of the principle is that due focus and priority should be given to the interest of the child whenever policies, laws and decisions are made which directly or indirectly affects children.

Applicable laws

The Constitution of Kenya 2010, the Children Act and International human rights instruments are the laws that govern matters relating to best interest of a child. A child is defined under the Children Act as any human being under the age of eighteen years. Article 53(2) of the Constitution stipulates that the Child’s best interest is of paramount importance in every matter concerning the child. A child’s best interest is majorly considered by a court seized with the question of custody, guardianship, maintenance, adoption of the child and other issues.

What constitute to be the best interest of a Child

It is important to note that there is no clarity on what elements constitute the notion of best interest of the child. In other words, what is the best interest of the child has not been defined by the law. This is as it should be because the interest of each particular child will depend on the circumstance of each particular case at any one particular time.

However, there are certain minimum requirements that have universally been accepted to constitute the best interest of the child. This includes;

  1. The right of a child to be provided with shelter, food and education.
  2. The child is entitled to medical care.
  3. The child’s welfare should be taken care of under the best possible circumstances.
  4. The child is also entitled to parental guidance. This guidance shall where possible, be provided by both parents.
  5. The child is further entitled to be given a suitable, conducive and loving environment in which to grow up in.  

We are available to assist and advice on best interest of a child or any other question relating to children. Kindly reach out to us on info@mmsadvocates.co.ke or kachero@mmsadvocates.co.ke

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