Kenyan legislation

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

Edition: 2024-10-18 · In force

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Part I — PRELIMINARY

1. Citation

These Rules may be cited as the Children (Foster Care)(Practice and Procedure) Rules, 2024.

2. Interpretation

In these Rules, unless the context otherwise requires—“extension order” means an order issued by the Court extending the foster care placement period beyond three years; and“summons” means an originating summons lodged in respect of an application under these Rules.

3. Objective and principles of these Rules

(1)The objective of these Rules is to facilitate the just, expeditious, and proportionate determination of applications relating to foster care under the Act.

(2)The implementation of these Rules shall be guided by the following principles—

(a)ensuring that the best interest of the child principle is upheld;

(b)promoting the placement of the child in the child’s own social-cultural environment;

(c)ensuring the realization of the objectives and principles set out in section 12 of the Act; and

(d)facilitating the achievement of the objectives of foster care placement set out in section 170 of the Act.

(3)Nothing in these Rules shall preclude the Court from exercising any power or issuing any orders or directions as may be just and fit having regard to the best interests of the child.

4. Application of Rules

The Rules shall apply to the procedures relating to the following—

(a)the placement of a child to foster care pursuant to an order of the Court;

(b)applications for extension of foster care placement for a period exceeding three years;

(c)the placement of a child to foster care under an order of the Court;

(d)applications for leave to remove a child in foster care from Kenya;

(e)applications for termination of foster care; and

(f)any other procedural matter relating to foster care placement envisaged under the Act and these Rules.

Part II — COMMENCEMENT OF FOSTER CARE PROCEEDINGS

5. Eligibility for foster care placement

Subject to section 171 and 172 of the Act, the following children may be placed under foster care—

(a)a child in need of care and protection as provided under section 144 of the Act;

(b)a child in situations of emergency;

(c)a child who has been abandoned;

(d)a child whom it has not been possible to facilitate their adoption or placement in a family-based alternative care;

(e)a child in respect of whom it is intended to commence proceedings for their adoption or placement in a family-based alternative care, or in respect of whom such proceedings are pending;

(f)a child committed to a rehabilitation school or a charitable children’s institution by reason of a care order; or

(g)with the leave of Court, a child in respect of whom a care order has been made in a criminal proceeding.

6. Persons qualified to foster children

(1)Pursuant to section 174 of the Act, a person shall qualify to foster a child if that person, and—

(a)is resident in Kenya and has been resident for at least twelve months;

(b)in the case of a single woman or single man, is aged between twenty-five and sixty-five years; and

(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.

(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.

(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.

7. Restriction on foster care arrangements

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

8. Foster care placement at first instance

(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.

(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.

(3)The period under subrule (2) may be extended for a further period not exceeding three years in aggregate.

9. Extension of period of foster care

(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.

(2)An application for extension of foster care under subrule (1) shall be made where—

(a)it has not been possible to facilitate the adoption of the child or to place the child in a family-based alternative care;

(b)it is shown to the satisfaction of the Court that circumstances exist to justify extension of time pending adoption or other arrangements; or

(c)circumstances exist that otherwise justify the extension of the foster care period beyond three years.

(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.

10. Form of application for extension of foster care

(1)An application for an order of the Court extending the period of foster care placement shall be made—

(a)where there are pending or previous proceedings before the Court relating to the child —

(i)by notice of motion in Form No. FCR1 set out in the Schedule;

(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;

(b)where the child is a ward of the Court—

(i)by a notice of motion made in the same proceedings in the prescribed Form No. FCR1 set out in the Schedule;

(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;

(c)in any other case—

(i)by way of originating summons in Form No. FCR3 set out in the Schedule;

(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.

(2)The originating summons filed under subrule (1)(c) shall be accompanied by—

(a)triplicate copies of the notice to enter appearance in Form No. FCR4 set out in the Schedule;

(b)a report containing relevant information on—

(i)the circumstances leading to the initial foster care placement in question and the date on which the placement was made;

(ii)whether there has been any extension of the initial placement period, the date when the extension was made, the extension period, and the reasons for such extension;

(iii)the date on which the current placement period ends;

(iv)the Secretary’s findings on the assessment of the child, the foster parent or parents, and the foster home conducted not more than three months prior to the date on which the application is made;

(v)a brief statement of the reasons for the extension of foster care placement;

(vi)information regarding other proceedings before any other court relating to the child, if any;

(vii)any other matter which is considers necessary to support the application;

(c)any other relevant document concerning the child which may assist the Court in determining whether to make the order.

11. Other proceedings before another court

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.

12. Issuance of notice to enter appearance

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.

13. Restriction on charging fees

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.

Part III – SERVICE OF COURT PROCESS AND PRE-HEARING PROCEEDINGS

14. Service of court process

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.

15. Service of notice to enter appearance

The notice to enter appearance and summons shall be served within ten days from the date of receipt of endorsed copies from the Court under rule 12 and shall be effected upon —

(a)all parties to the application;

(b)the foster parent or parents;

(c)the institution or institutions involved in the foster care arrangements in respect of the child;

(d)any other party as the Court may direct.

16. Service where application is made in other proceedings

Where there are pending or previous proceedings as provided under rule 11, an application under these Rules shall be served within ten days of filing upon —

(a)all parties listed under rule 15;

(b)the other parties to the pending or previous proceedings whom the Court deems necessary;

(c)any other party as the Court may direct.

17. Who may serve

(1)Service of process under these Rules may be effected by the applicant or by a duly authorized process server.

(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.

18. Appearance

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.

19. Form of reply to originating summons

(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.

(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.

(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.

20. Reply to applications

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.

21. Amendment of pleadings

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

22. Close of pleadings

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.

Part IV – PROVISIONS RELATING TO HEARING

23. Pre-trial conference

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

24. Matters to be handled at the pre-trial conference

(1)At the pre-trial conference, the Court shall confirm—

(a)the filing and service of pleadings;

(b)amendment of pleadings where necessary;

(c)the participation of the child at the hearing;

(d)parties to attend at the hearing;

(e)whether appropriate measures required under rule 29 have been put in place to ensure the participation of the child;

(f)custody and care of the child during the pendency of the proceedings;

(g)the date set for the hearing of the application and service of parties;

(h)filing of reports;

(i)mode by which the proceedings will be conducted;

(j)any other matter that promotes the welfare of the child and the expeditious disposal of the case.

(2)At the pre-trial conference, the Court shall complete the hearing checklist in Form No. FCR7 set out in the Schedule.

(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.

25. Hearing notice

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.

26. Attendance at hearing

(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.

(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.

(3)Attendance at all hearings shall be limited to—

(a)the child to whom the proceedings relate;

(b)the parties;

(c)the advocates representing the parties;

(d)witnesses; and

(e)any other person with the leave of the Court.

27. Consequences of non-attendance

(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.

(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.

(3)An application under subrule (2) may only be allowed if the Court is satisfied that —

(a)the applicant was not served with the notice for the hearing of the application;

(b)the applicant was otherwise prevented by justifiable cause from attending the trial; and

(c)it is in the best interests of the child that the ex parte order or proceedings be set aside.

28. Oral application

(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.

(2)Where a party to the proceedings makes an oral application under subrule (1), the Court may —

(a)allow the application to proceed orally, in a way and on such conditions as it considers appropriate; or

(b)direct the party to make the application in writing.

(3)The Court may, at any time during the proceedings request for an oral report from—

(a)the Secretary;

(b)the foster parent; or

(c)any other person as the Court deems fit.

29. Procedure where the child is participating

(1)Unless otherwise directed by an order of the Court, the child to whom the proceedings relate may attend the hearing.

(2)Where the child is able and willing to participate in the proceedings, unless for sufficient reason the Court orders otherwise, the Court shall —

(a)provide the child an equal and inclusive opportunity to participate during the proceedings;

(b)inform the child of the child’s rights and opportunity to participate in an age-appropriate manner;

(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;

(d)ensure an enabling and safe environment for the child to participate in the process;

(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

(f)minimize the frequency of the child’s appearance in Court.

(3)The Court shall record the reasons for excluding the child from attending the whole or any part of the proceedings under these Rules.

(4)The Court may make orders or give directions on how the child shall adduce evidence at a hearing and such direction shall include—

(a)that a person be excluded from the courtroom while the child is giving evidence;

(b)that the child may have an intermediary to support the child throughout his or her evidence; and

(c)if necessary, the child’s evidence be given with the use of technology, including an audio or audio-visual link.

30. Proceedings to be conducted expeditiously

(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.

(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).

(3)Where the Court extends time under subrule (2), it shall—

(a)record the exceptional circumstances or reasons that justified the extension;

(b)indicate the period of extension;

(c)henceforth hear the case on priority basis.

(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.

(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.

(6)Where an application is filed and there are in pending or previous proceedings in respect of the child, the proceedings shall be heard expeditiously and be disposed of within sixty days from the date of filing.

31. Court to issue directions on hearing of applications

(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.

(2)Where the Court directs that a separate suit be filed, the case shall be filed by way of originating summons.

32. Provisions governing hearing of applications

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

Part V – PROVISIONS RELATING TO ORDERS

33. Consideration on making orders

In making a determination under these Rules, the Court shall take into account—

(a)the need to ensure the stability of the child’s life;

(b)the best interests of the child;

(c)the objectives and principles set out in sections 12(3) and 12(4) of the Act;

(d)the objectives and principles of these Rules; and

(e)the limitation on the number of children that may be placed under foster care in a household as provided for under section 176 of the Act.

34. Decision of Court

(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.

(2)The Court may in its determination—

(a)allow the case and issue such appropriate orders as it deems fit; or

(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.

(3)Where the summons or application is allowed, the Court shall indicate the period of extension of the foster care placement.

(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.

35. Power to set aside, amend or vary an order

(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.

(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.

(3)An application under this rule shall be served on—

(a)all the persons who were party to the proceedings where the extension orders were issued; and

(b)any other party with the leave of the Court.

(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.

(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.

(6)Where the Court makes an order to set aside the terms of foster care placement, it shall make such other orders for the welfare of the child in accordance with section 134 of the Act.

36. Power to correct defects in the order

(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.

(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.

Part VI – PROCEDURE AFTER ISSUANCE OF EXTENSION ORDERS

37. Review

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).

38. Appeal

(1)An appeal against an order issued under these Rules shall lie to the High Court.

(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.

(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.

(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.

(5)The provisions of Order 42 of the Civil Procedure Rules shall apply to the filing and processing of appeals under these Rules.

39. Mention of the case upon lapse of the extended period

(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.

(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.

(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.

40. Restriction on removal of the child from Kenya

(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.

(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.

(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.

(4)The grant of leave under this rule shall be at the discretion of the Court and shall only be issued in exceptional circumstances having regard to —

(a)the urgent needs of the child at the time that the application is made;

(b)the need to protect the child from child trafficking and other harmful practices; and

(c)the child’s best interests

(5)Where the Court grants leave under this rule, it shall impose such conditions or restrictions as it considers appropriate.

(6)Where a foster parent removes a child from the jurisdiction of the republic of Kenya pursuant to leave granted under this rule, the foster parent shall be required to produce the child to Court upon return.

41. Termination of foster care placement

(1)Foster care placement pursuant to an order for extension under these Rules may be terminated where —

(a)an application by the Secretary to have the foster care terminated is allowed by the Court;

(b)an application to set aside the extension orders is allowed;

(c)the child attains the age of eighteen years;

(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;

(e)the foster parent or the child dies;

(f)an application to further extend the foster care placement period is disallowed by the Court;

(g)an adoption order is subsequently issued in relation to the child; or

(h)a care order that led to the child being placed on foster care is terminated or discharged.

(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.

42. Procedure where foster parent wishes to adopt

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.

Part VII – MISCELLANEOUS PROVISIONS

43. Time

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.

44. Procedure for execution of orders and decrees

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

45. Form of interlocutory applications

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.

46. Costs

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

47. Confidentiality of court records

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.

48. Transition of Ongoing proceedings

(1)Any proceedings relating to foster care placement pending in any court at the time of coming into force of these Rules shall be finalized in accordance with these Rules:Provided that—

(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

(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.

(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.

Source: Kenya Law · Imported 4 October 2026