BEST INTEREST OF THE CHILD (AND THE TENDER YEARS DOCTRINE) IN FAMILY LAW: DETERMINING WHO WILL HAVE CUSTODY OF THE MINOR

What is 'the best interest of a child'?

The law does not provide one specific definition of ‘the best interests of a child’. The principle is enshrined under the Constitution of Kenya and the Children Act Cap 141. This principle is widely recognised and used by courts in other jurisdictions like the US and UK. The principle is paramount in cases where there is a family dispute.

There is no exhaustive closed list of what constitutes the best interest of a child. The family courts have been shy in giving a closed definition because that would restrict the family courts' flexibility in determining what would constitute a child's best interest. Hence, the circumstances of the child in the specific case play a major role in determining the child's best interest.

The best interest of a child principle is highly reflective of the position in the Convention on the Rights of the Child. The Convention calls for primary consideration of the best interest of the child in all legal disputes concerning children.

Relying on probation reports, sentencing minors differently than adults, and involving children’s officers in legal proceedings are just a few examples of how the courts put the best interests of a child first.

The best interest of a child and the tender years doctrine

The tender years doctrine is a 19th-century creation of common law. This doctrine has been adopted in Kenyan family law, creating a presumption that during the tender years, a child (generally regarded to be under the age of 4) should be left in the custody of the mother. This doctrine often arises in child maintenance and divorce proceedings. The argument is that the tender years doctrine has slowly been eroded by the best interest of the child. Court decisions reveal that the ‘best interest of a child’ has shifted how the courts have interpreted the tender year doctrine.

The courts must consider various factors in determining whether the child of tender years should be placed in the custody of the mother. The decision of SMM v ANK [2022] eKLR has analyzed the application of the principle of the best interest of a child in the determination of an award of custody of a child of tender years. The court held that:

However, it is apparent that while the Tender Years Doctrine, is persuasive in considering custody of children, it can no longer be considered as an inflexible rule of law. This is not to say that the substance of the rule has dissipated completely; it is to say that its inflexibility has been eroded by the evolving standards of decency reflected in Article 53 of?the Constitution. Differently put, the Tender Years Doctrine must now be explicitly subjected to the Best Interests of the Child Principle in determining custody cases. Differently put, the welfare of the children is the primary factor of consideration when deciding custody cases. The judicial rule that a child of tender years belongs with the mother is merely an application of the principle in appropriate cases. The modern rule begins with the principle that the mother and father of a child both have an equal right towards the custody of the child.

Some of the evidence which may be factored in determining the best interest of a child in custody battles in court

Determining custody relies on section 32(1) of the Children Act, which places responsibility for children on both parents equally. This means that no parent has a superior responsibility or claim to the other. In determining the best interest of a child, the courts consider if a parent can take care of a minor. This can include looking at the working patterns of the parent and the safety of the child. Previous instances of violence, neglect, abuse, and harm may play a factor in determining that a child in the custody of a parent will likely suffer harm. The history of drug abuse and mental instability can also be considered by the court, whereby courts would generally shun away from awarding custody to a parent who is an alcoholic or abuses drugs.

In practice, the tender years doctrine continues to play a major role in determining custody battles in family courts.

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