Parents not obligated to pay child support after 18 years: court

It is not compulsory for a parent to support a child older than 18, a Nyeri court has ruled, dismissing a woman’s application for her husband to be compelled to pay university fees for their daughter.

Senior Resident Magistrate Ruth Kefa held that parental support can only be extended under special circumstances, and that the child has to apply for this extension through the courts.

In the case, the woman wanted her former husband to pay fees for their 21-year-old daughter at Multimedia University in Nairobi.

The magistrate noted that the Children Act, No.8 of 2001 (revised 2016), provides that 'child' means any human being under the age of 18 years. 

"The plaintiff filed this suit in the children's court seeking maintenance orders. According to the annexed birth certificate, the child is over 18 years and is therefore not a child as defined by the Act."

THE LAW

Through lawyer Wambui Mwai, the woman named Ms PWM had urged the court to exercise its discretion by moving by its own motion and extending the parental responsibility.

The lawyer said the student should not be denied her right to education and that her request for maintenance while in university pointed to existence of a special circumstance.

Special circumstances in such cases include involvement in education or training beyond age 18; existence of a disability; the child's need for specialised care; or existence of an illness that requires medical care before the age of 18.

Ms Mwai further argued that it is not mandatory for the child to apply for the extension, as the magistrate cited Section 91(b) where the law uses the word ‘may’.

Section 91(b) of the Children Act says “a person who has attained the age of 18 years may, with the leave of the court, apply to the court for a maintenance order to be made in his favour…”.

The lawyer said that by using the word 'may, drafters of the law meant the role on extension is not mandatory but discretionary.

“The court is mandated to move by its own motion, which is discretionary. The application relates to university education to enable the child attend Multimedia university which is a right under the Bill of Rights,” he said.

NO APPLICATION

But the man named Mr DMM said the law does not mandate him to support an adult.

“Section 91 (b) of the Children Act provides for one to apply for maintenance. No such application for extension has been sought and therefore the plaintiff has not complied with provisions of the law,” he stated.

The magistrate said that according to Section 28 of the law, on extension of responsibility beyond the 18th birthday, the plaintiff should have filed an application for the extension.

Section 28(1) states that parental responsibility may be extended if the court is satisfied upon application or of its own motion.

An application under this section of the law may be made by the parent, relative of a child, any person who has parental responsibility for the child, the director of children or the child.