Why would I want to stop a parent leaving Kenya with my child?

The main instances this can arise are:

• during a separation with a parent who is a foreigner;
• during divorce with a parent who is a foreigner;
• where you are apprehensive your child will not be returned to Kenya once a foreign parent/spouse leaves Kenya with the Child;
• where you have a Kenyan citizen parent wanting to relocate from Kenya with the child without your consent.

What is the risk to you if the child actually leaves Kenya against your wishes?

Cross border child custody cases can be complex due to the competing laws in various jurisdictions as pertains to children. Additionally, there are international conventions on the abduction and return of children, which Kenya not being party to, would affect your right to have the child returned to Kenya, so in many cases it is best to consider the complexity of a cross border child custody and residence case.

How can Kenyan Courts help?

If you are apprehensive that your child leaving Kenya means they may not be returned back and you will lose your child who will remain in the country of the foreign parent, one can seek certain orders to restrain the removal of the child from Kenya:

For instance an order alerting ports of Kenya including road borders not to allow the travel of the children of Kenya, also called a port alert; additionally, depending on the circumstances of your case you can seek residence and custody orders or even wardship orders, whereby the child is put under the care of the court and even if the child leaves Kenya the court in a foreign jurisdiction is more persuaded to have the child returned  because the child has already been made a ward of a court in a foreign jurisdiction.

How long will it take to obtain such orders?

Ordinarily if you are fearful of a sudden removal of the child from Kenya e.g. imminent plans to remove the child from Kenya, you can apply to the court for emergency interim orders under a certificate of urgency and if the court is persuaded that your application is compelling, it will issue orders within several days thus securing the stay of your child in Kenya. These shall be interim orders pending the hearing of the application and the suit.

How will cross border child custody cases ultimately be resolved by Kenyan Courts?

If you successfully obtain interim orders, in most instances, the court will direct that a children officer’s report be filed before the hearing and this will entail a visit by the officer to the home where the child is living.

This report will be taken into account in determining whether it is in the best interests of the child to remain in Kenya or whether the foreign parent will be allowed to depart Kenya with the child.

The main principle Kenyan courts follow is the best interest s of the child principle and you may present compelling evidence in such a case to get positive results.

What recourse do I have if the Child has already been removed from Kenya?

You may seek advice from the Kenyan lawyer on cross border child custody cases.

You will also consider getting legal counsel in the place where your child has been taken, as many times foreign courts can exercise jurisdiction because of the child’s presence in that country. The foreign lawyer will also advise you on the law of that country and may work in conjunction with the Kenyan lawyer to advise what recourse can additionally be pursued.

How about if My child is brought to live in Kenya and yet I live abroad?

In this reverse situation, you can approach the Kenyan court for an order compelling the other party to return the child to the foreign country. It is also prudent to ask for custody and residence orders to finally resolve the issue of where the child should live and avoid similar turmoil in the future. Often when the court issues such an order, it will direct that the parent that brought the child to Kenya make travel arrangements to return the child to the foreign country and even may require the parent to accompany the child on any such journey from Kenya to the foreign country.