The Tender Years Doctrine Has No Statutory Basis in Kenya and Courts Must Stop Applying It

A Doctrine That Was Never Enacted

The tender years doctrine holds that, all else being equal, a mother should be the preferred custodian of children below a certain age, typically seven years. The doctrine has its roots in Victorian English equity, was imported into Kenyan courts by reception, and has survived decades of constitutional reform without ever being examined properly.

The Children Act, No. 29 of 2022 does not contain this doctrine. It does not mention it. The word "mother" does not appear in the custody provisions as a presumptive preference. Section 83 of the Children Act states that the paramount consideration in all decisions concerning a child's custody, care, upbringing, or property is the best interests of the child. Section 84 provides a list of factors the court must consider in determining best interests, including the physical and emotional needs of the child, the wishes of the child where appropriate, the capacity of each parent to provide for those needs, and any history of abuse or neglect.

The mother's gender is not a best-interests factor. It is not on the list.

The Constitutional Position

Article 53(2) of the Constitution of Kenya 2010 provides that the best interests of the child are of paramount importance in every matter concerning the child. Article 27(3) guarantees equal treatment of men and women. Article 45(3) guarantees spouses equal rights at the time of dissolution of marriage.

A doctrine that presumes, without evidence, that a mother is the more suitable custodian for a young child on the basis of her sex alone is a violation of Article 27 as applied to the father. It is also a failure of the Article 53(2) mandate, because it substitutes a presumption about sex for a genuine inquiry into best interests. These are not reconcilable positions.

What Courts Actually Do

In practice, family court judges continue to award custody of children below seven years to mothers as a default. Fathers who challenge this default receive responses that run along the following lines: the court "notes the tender years of the children" and determines that they "would be best served in the care of their mother." That sentence contains no analysis. It contains a conclusion that restates the doctrine without applying Article 53(2) or section 83 of the Children Act.

The Court of Appeal addressed the doctrine in MWK v PKK, Civil Appeal No. 99 of 2019, where the court observed that the presumption in favour of mothers was weakened by the Children Act 2001 (now repealed) and further diminished by the 2010 Constitution. But the court stopped short of holding the doctrine extinct. That stopping short has been read by lower courts as permission to keep applying the doctrine. It was not permission. It was an incomplete judgment, and lower courts have filled the gap in the wrong direction.

The Section 84 Factors Are the Entire Inquiry

When a court applies section 84 of the Children Act 2022 honestly, it is conducting a full factual inquiry: Which parent has been the primary caregiver? What is each parent's living situation, employment, and support network? What does the child want, if the child is old enough to express a view? Has either parent been abusive, neglectful, or absent? Those questions are gender-neutral. They produce individualised outcomes. A mother might win custody, a father might win custody, or the court might award joint custody, depending entirely on the evidence.

The tender years doctrine short-circuits that inquiry. It tells the court the answer before the evidence is heard. That is not justice. It is custom dressed up as law, and the Children Act 2022 does not have room for it.

A Direct Challenge Is Overdue

No party has yet brought a constitutional petition directly challenging the continued judicial application of the tender years doctrine as a violation of Articles 27 and 53. That petition is waiting to be filed. Until it is filed and decided, advocates appearing in family courts must squarely object to any judgment that purports to apply a maternal presumption rather than the section 84 factors. The record must show the objection. Courts that see the objection recorded repeatedly will eventually feel obliged to respond to it.