The Children (Foster Care) (Practice and Procedure) Rules

Section 5. Eligibility for foster care placement Section a child in need of care and protection as provided under section 144 of the Act;

Section 6. Persons qualified to foster children Section 6(1)(a) is resident in Kenya and has been resident for at least twelve months; Section 6(1)(b) in the case of a single woman or single man, is aged between twenty-five and sixty-five years; and Section 6(1)(c) in the case of spouses, one or both of the spouses is between the age of twenty-five and sixty-five years of age. Section 6(2) Unless where the child is an intersex child, a single woman shall not qualify to foster a male child unless she is the mother to that child, and a single man shall not qualify to foster a female child if he is not a father to the child. Section 6(3) A person who is convicted of any of the offences set out in the Third Schedule to the Act or similar offences shall not be appointed to be a foster parent.

Section 7. Restriction on foster care arrangements Section An institution shall be eligible to undertake foster care arrangements only if it is registered and authorised in accordance with the Act.

Section 8. Foster care placement at first instance Section 8(1) Pursuant to section 172(1) of the Act, any arrangements for the foster care placement of a child shall, in the first instance, be on the direct intervention of the Secretary or pursuant to an order of the Court. Section 8(2) Where an order for foster care placement is made by the Court under subrule (1), it shall, in the first instance, be home based and for a period not exceeding twelve months. Section 8(3) The period under subrule (2) may be extended for a further period not exceeding three years in aggregate.

Section 9. Extension of period of foster care Section 9(1) Pursuant to section 171(3) of the Act, no child shall be placed under foster care for a period exceeding three years without an order of the Court. Section 9(2)(a) it has not been possible to facilitate the adoption of the child or to place the child in a family-based alternative care; Section 9(2)(b) it is shown to the satisfaction of the Court that circumstances exist to justify extension of time pending adoption or other arrangements; or Section 9(2)(c) circumstances exist that otherwise justify the extension of the foster care period beyond three years. Section 9(3) An application under rule 13 shall be made at least thirty days before the date on which the period of three years during which the child is placed in foster care lapses.

Section 10. Form of application for extension of foster care Section 10(1)(a) by notice of motion in Form No. FCR1 set out in the Schedule; Section 10(1)(a)(i) by notice of motion in Form No. FCR1 set out in the Schedule; Section 10(1)(a)(ii) supported by an affidavit in Form No. FCR2 set out in the Schedule setting out the factual circumstances and grounds on which the application is made; Section 10(1)(b) by a notice of motion made in the same proceedings in the prescribed Form No. FCR1 set out in the Schedule; Section 10(1)(b)(i) by a notice of motion made in the same proceedings in the prescribed Form No. FCR1 set out in the Schedule; Section 10(1)(b)(ii) supported by an affidavit in the prescribed Form No. FCR2 set out in the Schedule setting out the factual circumstances and grounds on which the application is made; Section 10(1)(c) by way of originating summons in Form No. FCR3 set out in the Schedule; Section 10(1)(c)(i) by way of originating summons in Form No. FCR3 set out in the Schedule; Section 10(1)(c)(ii) supported by an affidavit in Form No. FCR2 set out in the Schedule setting out the factual circumstances and grounds on which the application is made. Section 10(2)...

Section 11. Other proceedings before another court Section Where pending or previous proceedings relating to the child to be placed under foster care are before another court other than the Children’s Court, the originating summons shall be filed before the Children’s Court and shall disclose the existence and nature of those other proceedings.

Section 12. Issuance of notice to enter appearance Section Within three days from the date of filing of the summons under rule 10(2), the Court shall endorse the notice to enter appearance and issue two copies thereof to the applicant.

Section 13. Restriction on charging fees Section The Court shall not charge any fees for the filing of any pleading, application, or document, or for the issuance of any document, or service rendered under these Rules.

Section 14. Service of court process Section Unless otherwise ordered by the Court, the provisions of Order 5 of the Civil Procedure Rules (Sub.Leg) shall apply to the service of the notice to enter appearance and other Court process under these Rules.

Section 15. Service of notice to enter appearance Section all parties to the application;

Section 16. Service where application is made in other proceedings Section all parties listed under rule 15;

Section 17. Who may serve Section 17(1) Service of process under these Rules may be effected by the applicant or by a duly authorized process server. Section 17(2) The applicant or the process server, as the case may be, shall, immediately after effecting service, file a certificate of service in the Form No. FCR5 set out in the Schedule.

Section 18. Appearance Section A party served with a notice to enter appearance under rule 15 shall, within seven days of service, enter an appearance in Form No. FCR6 set out in the Schedule.

Section 19. Form of reply to originating summons Section 19(1) A party who has been served with the notice to enter appearance and summons under rule 18 shall, whether or not that party has entered an appearance, file and serve an affidavit in reply to the application. Section 19(2) The affidavit shall be filed and served within fourteen days from the date of service of the notice to enter appearance, and shall be served upon the applicant and all persons named as party to the application. Section 19(3) The affidavit in reply shall indicate whether or not the respondent opposes the application for extension of foster care placement and the reasons thereof.

Section 20. Reply to applications Section A party served with an application under rule 16 shall, within fourteen days after service file and serve a replying affidavit indicating whether or not the party opposes the application and the reasons thereof.

Section 21. Amendment of pleadings Section The provisions of Order 8 Rule 4 of the Civil Procedure Rules (Sub.Leg), shall apply to amendment of pleadings under these Rules.

Section 22. Close of pleadings Section Pleadings shall close seven days after the filing of the affidavit in reply to the application, or fourteen days after service of the notice to enter appearance on all parties to the application, whichever is later.

Section 23. Pre-trial conference Section Within seven days of close of pleadings, the Court shall convene a pre-trial conference and notify all parties.

Section 24. Matters to be handled at the pre-trial conference Section 24(1)(a) the filing and service of pleadings; Section 24(1)(b) amendment of pleadings where necessary; Section 24(1)(c) the participation of the child at the hearing; Section 24(1)(d) parties to attend at the hearing; Section 24(1)(e) whether appropriate measures required under rule 29 have been put in place to ensure the participation of the child; Section 24(1)(f) custody and care of the child during the pendency of the proceedings; Section 24(1)(g) the date set for the hearing of the application and service of parties; Section 24(1)(h) filing of reports; Section 24(1)(i) mode by which the proceedings will be conducted; Section 24(1)(j) any other matter that promotes the welfare of the child and the expeditious disposal of the case. Section 24(2) At the pre-trial conference, the Court shall complete the hearing checklist in Form No. FCR7 set out in the Schedule. Section 24(3) Where the originating summons is uncontested, the Court may, after confirming the requirements set out at sections 171(4) and 176 of the Act, proceed to determine the application on the date set for pre-trial conference.

Section 25. Hearing notice Section At the pre-trial conference, the Court shall, where the case is certified for hearing issue directions on service of a hearing notice in Form No. FCR8 set out in the Schedule.

Section 26. Attendance at hearing Section 26(1) A party served under rule 15 who has filed and served an affidavit in reply may attend before the Court and show cause why the application for extension of foster care placement may or may not be granted: Provided that a party who is not opposed to the extension of foster care period may attend Court and submit in support of the application notwithstanding the fact that that party may not have filed any affidavit in reply. Section 26(2) Without prejudice to the generality of subrule (1), a children institution may be represented in the proceedings by a duly authorized officer of the institution. Section 26(3)(a) the child to whom the proceedings relate; Section 26(3)(b) the parties; Section 26(3)(c) the advocates representing the parties; Section 26(3)(d) witnesses; and Section 26(3)(e) any other person with the leave of the Court.

Section 27. Consequences of non-attendance Section 27(1) Where any party to the suit fails to attend at the hearing, the Court may proceed to hear and determine the case, or make such orders as it deems fit. Section 27(2) A party who is aggrieved by an order issued under subrule (1) may apply to the Court to set aside the ex parte order or proceedings. Section 27(3)(a) the applicant was not served with the notice for the hearing of the application; Section 27(3)(b) the applicant was otherwise prevented by justifiable cause from attending the trial; and Section 27(3)(c) it is in the best interests of the child that the ex parte order or proceedings be set aside.

Section 28. Oral application Section 28(1) A party to an application under these Rules may make an oral application for any order or relief from the Court in respect of the application or any other relevant matter. Section 28(2)(a) allow the application to proceed orally, in a way and on such conditions as it considers appropriate; or Section 28(2)(b) direct the party to make the application in writing. Section 28(3)(a) the Secretary; Section 28(3)(b) the foster parent; or Section 28(3)(c) any other person as the Court deems fit.

Section 29. Procedure where the child is participating Section 29(1) Unless otherwise directed by an order of the Court, the child to whom the proceedings relate may attend the hearing. Section 29(2)(a) provide the child an equal and inclusive opportunity to participate during the proceedings; Section 29(2)(b) inform the child of the child’s rights and opportunity to participate in an age-appropriate manner; Section 29(2)(c) explain to the child the process and procedure of the Court in simple language and manner that the child understands to enable the child participate in the process; Section 29(2)(d) ensure an enabling and safe environment for the child to participate in the process; Section 29(2)(e) take appropriate measures to promote child participation in the proceedings, including the appointment of an intermediary, an interpreter or other person to ensure the comfort, and provide for the special needs of the child, if any; and Section 29(2)(f) minimize the frequency of the child’s appearance in Court. Section 29(3) The Court shall record the reasons for excluding the child from attending the whole or any part of the proceedings under these Rules. Section 29(4)(a) that a pe...

Section 30. Proceedings to be conducted expeditiously Section 30(1) Proceedings under these Part shall be undertaken expeditiously and, subject to subrule (2) be determined within sixty days from the date of filing of the case. Section 30(2) The Court may, in exceptional circumstances, and where justifiable reasons exist, extend the time for the determination of the case upon the lapse of the period set at subrule (1). Section 30(3)(a) record the exceptional circumstances or reasons that justified the extension; Section 30(3)(b) indicate the period of extension; Section 30(3)(c) henceforth hear the case on priority basis. Section 30(4) Every court station shall prepare and submit to the Registrar of the Court, quarterly reports regarding cases where extension of time has been made under this rule. The report shall be in Form No. FCR9 set out in the Schedule and shall be submitted in electronic form. Section 30(5) Where the Court has issued an interim care order pending the determination of the case under these Rules, the extension of the period under subrule (2) shall be subject to the provisions of section 155(3) of the Act. Section 30(6) Where an application is filed and there ar...

Section 31. Court to issue directions on hearing of applications Section 31(1) The Court shall direct the manner in which an application filed in pending or previous proceedings shall be disposed of, and such directions may include a direction that a separate suit be filed if the disposal of the application in order to achieve the objects of these Rules. Section 31(2) Where the Court directs that a separate suit be filed, the case shall be filed by way of originating summons.

Section 32. Provisions governing hearing of applications Section The provisions of rules 25, 26, 27, 28, 29 and 30 shall apply to the hearing of applications filed in pending or previous proceedings.

Section 33. Consideration on making orders Section the need to ensure the stability of the child’s life;

Section 34. Decision of Court Section 34(1) Upon hearing the originating summons or any application filed under these Rules, the Court shall deliver its decision within fourteen days from the date when the case is concluded or submissions filed, if any. Section 34(2)(a) allow the case and issue such appropriate orders as it deems fit; or Section 34(2)(b) dismiss the case and make such other orders as it deems fit for the welfare of the child in accordance with section 134 of the Act. Section 34(3) Where the summons or application is allowed, the Court shall indicate the period of extension of the foster care placement. Section 34(4) The Court may, at the time of extension of the foster care placement period direct the filing of follow-up reports concerning the welfare of the child, or order that the case be periodically listed for mention.

Section 35. Power to set aside, amend or vary an order Section 35(1) A party may for sufficient cause before the expiry of the extended period apply to the Court to set aside, amend, or vary an order made under these Rules. Section 35(2) An application under subrule (1) shall be by way of notice of motion in the prescribed Form No. FCR1 supported by affidavit setting out the grounds on which the application is made and filed in the case where the extension orders were issued. Section 35(3)(a) all the persons who were party to the proceedings where the extension orders were issued; and Section 35(3)(b) any other party with the leave of the Court. Section 35(4) The Court shall determine an application under this rule and make such orders as it deems fit taking into consideration matters provided for in section 171 (4) of the Act. Section 35(5) Where the Court makes an order to set aside, amend, or vary an extension order, the party in whose favor the order is given shall serve a copy of the order on all persons under subrule (3) and upon any other party as the Court may direct. Section 35(6) Where the Court makes an order to set aside the terms of foster care placement, it shall make...

Section 36. Power to correct defects in the order Section 36(1) The Court may on its own motion amend or vary an order issued under these Rules to correct any defect in the particulars contained therein. Section 36(2) Where the Court amends or varies an order under subrule (1), it shall cause to be served a copy of the amended order upon all parties to the proceedings.

Section 37. Review Section Any party to any proceedings under these Rules who is aggrieved by an order of the Court may apply for review in accordance with the provisions of Order 45 of the Civil Procedure Rules (Sub.Leg).

Section 38. Appeal Section 38(1) An appeal against an order issued under these Rules shall lie to the High Court. Section 38(2) The party who is aggrieved by an order of the Court shall file and serve a memorandum of appeal within fourteen days from the date that the order is made. Section 38(3) The memorandum of appeal shall be served on all the parties who participated in the proceedings, and a copy thereof shall be lodged with the trial Court. Section 38(4) Where a copy of the memorandum of appeal has been lodged in accordance with subrule (3), the Court shall issue directions as to the interim care and custody of the child. Section 38(5) The provisions of Order 42 of the Civil Procedure Rules shall apply to the filing and processing of appeals under these Rules.

Section 39. Mention of the case upon lapse of the extended period Section 39(1) Unless where the extension order is set aside or otherwise discharged, the Secretary shall set down the case for directions before the Court at least thirty days prior to the date when the order is set to lapse. Section 39(2) The Court may on its own motion bring up the case for mention where the Secretary fails to act as required under subrule (1), and shall cause a mention notice to be served upon all parties who participated in the proceedings. Section 39(3) At the mention date set under this rule, the Court shall confirm whether or not the Secretary intends to file an application to further extend the foster care placement period, and the arrangements being undertaken for the adoption or placement of the child in a family-based alternative care.

Section 40. Restriction on removal of the child from Kenya Section 40(1) A foster parent, whether by virtue of placement at initial instance, or upon extension of period under these Rules, shall not remove the child from Kenya without first obtaining the leave of the Court. Section 40(2) Where there are previous or pending proceedings before the Court relating to the child, an application under this rule shall be made in the pending case by way of notice of motion supported by affidavit setting out the grounds on which the application is made, and shall be served on the Secretary, the institution that was involved in the foster care arrangements, and upon any other party as the Court may direct. Section 40(3) Where there are no previous or pending proceedings before the Court relating to the child, the application shall be made by originating summons in the prescribed Form No. FCR3 set out in the Schedule supported by an affidavit stating the factual circumstances and grounds upon which it is made. Section 40(4)(a) the urgent needs of the child at the time that the application is made; Section 40(4)(b) the need to protect the child from child trafficking and other harmful practices...

Section 41. Termination of foster care placement Section 41(1)(a) an application by the Secretary to have the foster care terminated is allowed by the Court; Section 41(1)(b) an application to set aside the extension orders is allowed; Section 41(1)(c) the child attains the age of eighteen years; Section 41(1)(d) the period prescribed in the extension order expires before the child attains the age of eighteen years and no application is made for a further extension; Section 41(1)(e) the foster parent or the child dies; Section 41(1)(f) an application to further extend the foster care placement period is disallowed by the Court; Section 41(1)(g) an adoption order is subsequently issued in relation to the child; or Section 41(1)(h) a care order that led to the child being placed on foster care is terminated or discharged. Section 41(2) Where foster care placement pursuant to an extension order is terminated by virtue of subrule (1)(d) or for reason of death of the foster parent, the Secretary shall immediately set down the case for directions before the Court.

Section 42. Procedure where foster parent wishes to adopt Section Where the foster parent wishes to adopt the child, the foster parent shall file an application in accordance with the provisions of the rules relating to adoption proceeding.

Section 43. Time Section The provisions of Order 50 of the Civil Procedure Rules (Sub.Leg), shall apply to time prescribed for the doing of any act or taking any proceedings under these Rules.

Section 44. Procedure for execution of orders and decrees Section Any judgment or order given under these Rules shall be executed and enforced in accordance with the provisions of the Civil Procedure Rules, 2010.

Section 45. Form of interlocutory applications Section All interlocutory applications made under these Rules shall, unless otherwise provided be by way of notice of motion in Form FCR1 set out in the Schedule supported by an affidavit setting out the factual circumstances and grounds upon which the application is made.

Section 46. Costs Section The Court may make such orders as to costs as it deems just.

Section 47. Confidentiality of court records Section All records of proceedings made under these Rules shall be kept confidential and shall not be disclosed to any person who is not a party to the proceedings, unless the Court makes an order permitting the examination or making of copies of the records.

Section 48. Transition of Ongoing proceedings Section 48(1)(a) if, and in so far as it is impracticable in any such proceedings to apply the provisions of these Rules, the practice and procedure heretofore obtaining shall be followed; and Section 48(1)(b) the Chief Justice may issue practice notes or directions as to the procedure to be adopted in in any case of difficulty or doubt. Section 48(2) The court before which the proceedings are pending may either finalise the case in accordance with these Rules, or remit the case to the Children’s Court having jurisdiction to hear the case.