At ALN Kenya, we are deeply committed to supporting vulnerable children, a commitment that is reflected in our extensive corporate social responsibility (CSR) and pro bono initiatives, which include long-standing partnerships and projects with various children’s homes and charitable institutions in Kenya. Through these engagements, we have witnessed firsthand the transformative impact that well-managed children’s homes can have on the lives of children, providing them with safety, care, and opportunities for growth. However, with the commencement of the Act, the operations of privately run children’s home are set to change significantly. As stated above, this article outlines the legal development affecting privately owned CCIs, the legal pathways available to enable CCIs to adapt to the provisions of the Act and the measures needed to be implemented to make family-based care a reality.
The Act came into force on 26 July 2022, introducing substantial reforms aimed at advancing children’s rights and welfare in Kenya. A notable provision introduced by the Act directly affects the operations of privately owned charitable children’s institutions (the CCIs). The Act mandates that these institutions cease operations within ten (10) years from its commencement. Effectively, CCIs will be required to stop operating by 2032. Upon closure, children residing in these institutions must either be reintegrated into families or transferred to government-run institutions.
To justify the change, the government pointed to the rise in child trafficking cases, emphasising the need to transition to alternative family-based care models, which are seen as a safer and more sustainable solution for vulnerable children.
For a smooth transition, the Act provides that unless there are strong reasons, a child should not stay in a privately run CCI for more than three years from the day they were admitted. Within three years of the child’s date of admission, the child is required to be reintegrated into the community through adoption by a family or transferred to a government-owned CCI.
In addition, the Office of the Secretary of Children’s Services is required to play a critical role in making sure this provision is implemented. It is empowered to assess and evaluate how CCIs will reintegrate children into society within three years of their admission.
Navigating the Transition: Legal Options for CCIs
Privately owned CCIs have several options for adapting to the legal framework. One option is for them to apply to the National Council of Children’s Services for a change of user, which would allow CCIs to continue operations in a new capacity that focuses on supporting children in different areas, like healthcare and food security. The application must be submitted at least six (6) months before the proposed change takes effect. Once approved, children currently living in that CCI need to leave it and either be housed in a government-managed institution or reintegrated into families.
Alternatively, private CCIs may choose to cease operations and reorganise as new entities, such as Public Benefit Organisations or trusts. These new structures would no longer house children, but can continue to focus on supporting vulnerable children in other areas, like educational scholarships and the psychosocial development of children. These new entities would also be able to operate across multiple counties and benefit from statutorily provided tax exemptions, making them more viable for organisations seeking to extend their reach and impact in supporting vulnerable children.
Implementation Challenges and Recommendations – Inquiry from the Senate of Kenya
The transition mandated by the Act is widely recognised as a positive development, as it prioritises family-based care over institutionalisation. This approach aligns with international standards, such as the UN Guidelines for Alternative Care of Children, which emphasise that institutional care should be a temporary and last-resort solution.
However, there are significant challenges that may delay the realisation of the Act’s objectives. For instance, many CCIs lack adequate resources and capacity to implement the reintegration programs effectively. There is also limited collaboration between CCIs, government agencies, and community organisations, as well as insufficient funding for social welfare reforms.
Additionally, the Senate of the Republic of Kenya has cautioned against the premature implementation of this transition, noting that vulnerable children could be pushed to hardship. As part of its oversight role, it raised the below inquiries:
- is there a national policy to support the rehabilitation, reintegration, and empowerment of homeless children and vulnerable mothers?
- is there a multi-agency framework to guide and promote collaboration between government agencies and civil society organisations in addressing the root causes of homelessness?
- do county government social welfare departments have adequate resources and support services, such as counselling, healthcare, and vocational training, to support the transition of homeless children?
- are there sufficient budgetary allocations for the construction, staffing, and maintenance of housing shelters?
The Senate affirmed that for the shift to family-based care to succeed, the government must first address the systemic causes of homelessness and ensure sufficient support structures are in place.
Recommendations
There are lessons, however, from various countries that have implemented successful reforms addressing vulnerable children. For example, Rwanda’s government-led reform transformed orphanages into community outreach centres and recruited professional social workers supported by trained volunteers. Other countries, like South Africa, provide financial grants to foster families to encourage them to be open to adopting children from institutions.
To ensure the realisation of the Act’s objectives, the government should strengthen funding mechanisms for CCIs to support reintegration programs, undertake public awareness campaigns on the importance of family-based care, provide financial incentives to foster families and provide training programs for all stakeholders in the realisation of the Act’s objectives.
Conclusion
The Act represents a transformative step in Kenya’s approach to child welfare by prioritising family-based care over institutionalisation. While this transition aligns with the best global practices, its success depends on addressing systemic challenges such as poverty, cultural barriers, and limited social safety nets. By adopting the strategies discussed above, Kenya can create a sustainable child welfare system that prioritises the rights and well-being of vulnerable children while addressing local challenges unique to its socio-economic context.
For organisations navigating this transition, seeking legal advice and support is crucial to ensure that any proposed alternative structure is established in accordance with the law and the private CCI ceases to exist before the deadline of 2032.
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