Leah Kiguatha Muteru On GUARDIANSHIP and FOSTER CARE

Guardianship is a court process by which the court gives you parental rights over a child who is not your biological child but unlike adoption, it is not permanent and the child, the guardian or the biological parent can go back to court to have it terminated failing which it expires when the child turns eighteen. It gives you legal ties to the child but you are no longer responsible when the child turns eighteen and the child does not get an automatic right to inherit from you. It also does not terminate the rights of the biological parent so that for example if you want to be a guardian to your sister’s child, the court can say that you are a guardian jointly with the mother of the child. When you get your international job, some countries will recognize the guardianship and give you a visa for the child. Some countries do not and will only recognize adoption for purposes of granting a visa to a child who is not your biological child. Similarly some employers recognize guardianship for purposes of extending benefits to a child in your family who is not your biological child while some insist on adoption. Same as insurance companies. Some will consider a child in your family who is not yours biologically as a beneficiary of an insurance policy if you have a guardianship order while some will insist on adoption.

And finally, foster care. Foster care has not really picked up in our system mainly because in my view, we believe in institutionalization and love children’s homes while all over the world – research shows the damage institutionalization does to children and there are no orphanages in the developed world. Even where the foster care system is broken and limping, none of the proposals for reform include herding children back into orphanages. The international principle as captured in the U.N Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the child is that the family set up is the best for the welfare and full development of the child. Kenyan law provides for foster care.. The foster parent does not take on full financial responsibility for the child – the home is supposed to take care of that and the role of the parent is to provide a family for the child. The Department of Children services also has a cash transfer system for orphaned and vulnerable children where their extended families are encouraged to keep them instead of sending them to institutions and the government contributes some money for their upkeep.

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