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TERMS OF REFERENCE FOR DEVELOPMENT OF NATIONAL GUIDELINES ON FOSTER CARE AND GUARDIANSHIP
Background
The National AIDS Control Council (NACC) in 2005 indicated that there are 2.4 million orphans with 472,000 of them being double orphans. The Kenya Integrated Household Budget Survey (KIHBS) 2005/6 indicated that only 63.9 % of children aged 0-14 years live with both parents, 17.1% live with only one of their parents although both their parents are alive while 8.3% (estimated 1.24 million) of children aged between 0-14 years whose one or both parents are alive live with neither of them. Reasons for parents not staying with their children range from them being out of the country, being in prisons, being migrant workers, abandonment, or total abdication of their parental responsibilities. In addition, the same study shows that 1.2% (estimated 178,716.8) children aged 0-14 are double orphans. These double orphans reside either alone, with relatives, with good samaritans, in the streets or in institutions. Some of these arrangements are not legally sanctioned therefore exposing most of these children to violence, abuse and exploitation.
There is therefore need to reintegrate children who have either both or one of their birth parents alive back within their families. A large and well established body of research shows that a nurturing family environment is associated with positive outcomes for children across a wide range of indicators. Families provide the context in which children develop, learn and thrive (Richter, Foster and Sherr, 2006). For double orphans, abandoned children and those who cannot live with their birth parents, there is need to place them in alternative family care arrangements, preferably within their extended family or community.
The Children Act, 2001 (CA) provides for the right to parental care and provides for guardianship, foster care and adoption as family based alternatives. Part II Section 6 (1) of the Act provides for the right of a child to live with and to be cared for by his/her parents, while 6 (2) states that a child can be separated from his/her parents if it is in the best interest of the child and that the best alternative care available shall be provided for such a child. In 6(3) the government shall support a child who is separated without leave of court to reunify with his family. Part IV 38(1) requires the Director of Children Services to safeguard the welfare of children and their families. Part VIII provides for guardianship and details all issues of consideration. The provisions on Foster Care are found in Part X1 and the Fourth Schedule of the Children Act.
It is noted that the Children Act does not provide for development of Regulations for Foster Care or Guardianship. However, Section 153 provides for the amendment of the Foster Care Rules in Schedule 4 by the Chief Justice (CJ) while Section 112 requires the CJ to make Guardianship Rules. The CJ has neither amended the Foster Care Rules nor developed the Guardianship Rules.
In addition to this glaring gap, A Technical Assessment on the Legal Provisions and Practices of Guardianship, Foster Care and Adoption of Children in Kenya commissioned by Department of Children Services (DCS) in 2008 with support from UNICEF found that there is need to strengthen the structure and mechanisms that promote guardianship and foster care in the country. The assessment found out that guardianship is the least understood and practiced among the alternative family based care arrangements in Kenya.
The same study also reconfirmed that more Charitable Children Institutions (CCI) are being established to admit an increased number of children. The phenomena of CCI seem to be the first resort rather than last resort and the most accessible option of ‘rescuing’ children from all sort of difficult situations including abandonment, orphanhood, family poverty, family disintegration such as separation and divorce, disability, displacement due to emergencies among other reasons. While the establishment of some CCIs is well intentioned in their intended programmes, others are established for economic or political gains. Worse still is that very few of these CCI have mechanisms for exiting such children from their CCI and reintegrating them with family and community. A number of children therefore spend their entire childhood life in these CCI and some even stay up to their 20s and 30s.
Currently the process of amending the Children Act 2001, is ongoing and issues of concern in foster care, guardianship and institutions will be addressed in the amendment.
To inform and guide practice on foster care and guardianship, the DCS has found it necessary to develop National Guidelines on Foster Care and National Guidelines on Guardianship which will also inform future amendment of Foster Care Rules and development of the Guardianship Rules as per provisions of the Children Act.
Purpose of the Assignment
The purpose of this assignment is;
i) To document the current practices by communities and different agencies on foster care and guardianship.
ii) To inform the current process of amending the Children Act, 2001 in matters relating to foster care and guardianship by providing concrete recommendations to the team in charge of amending the Children Act, 2001.
iii) To develop National Guidelines on Foster Care,
iv) To develop National Guidelines on Guardianship,
This assignment will contribute to strengthening of alternative family based care mechanisms and structures, with emphasis on foster care and guardianship, for the improved protection of orphans and vulnerable children.
On a higher level, the assignment will contribute towards the establishment of a Child Protection System with specific focus on the care component.
Major tasks to be accomplished
Under the leadership and supervision of the Department of Children Services (DCS) and working with a Technical Working Group (TWG) constituted by the DCS, the consultants will accomplish the following:
i. Review relevant documents (national, regional and international) on alternative care for children with specific focus on foster care and guardianship (4 days).
ii. Draft outline of the national guidelines on foster care (1 and ? days).
iii. Draft outline for the national guidelines on guardianship (1 and ? days).
iv. Develop tools to be used during the interviewing sessions with key informants (2 days).
v. Accompanied by representatives from DCS and TWG, visit at least five selected districts to gather information on the current practices on foster care and guardianship and draw lessons to inform the development of the two guidelines. DCS will determine districts to be visited. The consultants will visit each district for 4 days ( 3 days x 5 districts= 15 days)
In each of the district visits, the consultants will identify and document practices and lessons learnt from;
a) A DCS initiated intervention on foster care and guardianship,
b) At least two different ‘foster projects’ and ‘guardianship projects’ done by civil society organizations,
c) At least two Charitable Children Institutions (CCIs) interventions involving foster care and guardianship as part of their exit strategy,
d) A Court that has handled foster care and/or guardianship case.
e) Children or youth who have gone through the process of foster care and guardianship ( at least 2 per district)
f) Key persons in different ethnic communities to understand how the community deals with children who are separated from their parents due to various reasons.
vi. Consolidate report from above field visit (3 days)
vii. Share the findings from above practices with the TWG (and if necessary with a wider stakeholders group) emphasizing on the best practices that can inform the development of the two guidelines. At this point, revisit the proposed outline of the two guidelines and agree on a final outline (2 days).
viii. Based on international and national legal provisions, international practices and findings from the above field visits develop draft 1(one) of national guidelines on foster care and national guidelines on guardianship (6 days).
ix. Share the Draft 1 of the two guidelines with the TWG (and if necessary with a wider stakeholders group) for their input (2 Days).
x. Input agreed recommendations to come up with final draft of each guideline (6 days).
xi. Present the draft of the national guidelines on foster care and for guardianship to the Secretary of Children Affairs and the Director Children Services for their appropriate action to make the two documents operational. (1 day)
xii. During the entire process, identify areas that relate to foster care and guardianship that need to be amended within the Children Act 2001 and put together a document with ‘draft amendment language’ for input into the amended Children Act (4 days).
xiii. Through DCS, share the ‘draft amendment language’ document with the team involved in the ongoing process of amending the Children Act 2001 and if relevant with a wider stakeholder and agree on the content (1 day).
xiv. Develop final draft ‘amendment language document’ for input into the amended Children Act and hand over to the Kenya Law Reform Commission (KLRC) and the team working on the amendment of the Children Act (2 days).
xv. Compile a report summarizing the process/activities undertaken during this assignment (1 day).
Responsibilities and division of labour between international and national consultant
This consultancy recommends the teaming up of an international individual/firm with a national individual/firm for the purposes of drawing from international practice and experiences while at the same time ensuring that the national realities of the people of Kenya are considered and inform the final drafts of the two guidelines. Both international and national consultants will form a team and work together to deliver the end products of this consultancy. However, each will have specific responsibilities and tasks to accomplish as outlined below.
1. International Consultant will be the lead consultant and will work together with the national consultant to ensure that the objectives of this consultancy are achieved. He/she will have the responsibility of delivering two of the final products of this assignment, i.e. the draft guidelines on foster care and the draft guidelines on guardianship. He/she is responsible of ensuring that the international legal provisions and recommended practices are reflected in the final products as much as is feasibly possible in their implementation within Kenya.
Specific tasks
i. Assemble all international documents required for this assignment.
ii. Together with national consultant, review all relevant documents, to inform the process.
iii. Develop a draft outline of guidelines on foster care.
iv. Develop a draft outline of guidelines on guardianship.
v. Together with international consultant, develop tools to be used during the contact sessions with key informants.
vi. Together with national consultant, visit selected districts and interview key informants.
vii. Contribute to the generation of a report on field visit and highlighting recommendations for input into the guidelines
viii. With assistance of national consultant, develop zero draft of guidelines on foster care and guardianship
i. Together with national consultant, present for validation, the zero draft and any other advance draft of the two guidelines to the TWG and a wider stakeholder forum as recommended by DCS.
ix. Develop the final draft of the guidelines on foster-care and guidelines on guardianship, ready for official handing over to the relevant authorities for their endorsement.
2. National consultant will work together with the international consultant (lead consultant) in ensuring that the objectives of this assignment are achieved. While the national consultant will have specific tasks as outlined below, he will be responsible for providing contextual perceptive by ensuring that the recommended guidelines are within the Kenyan legal provisions and are not in conflict with positive cultural practices and beliefs of Kenyan communities that care and protect children. The national consultant is responsible of delivering three of the final products of this assignment, i.e. (i) a report from the field visits on the current practices on foster care and guardianship, (ii) draft language capturing recommendations for amendment of the Children Act with regard to foster care and guardianship, and (iii) a report summarizing processes/activities taken to accomplish this assignment.
Specific Tasks
ii. Assemble all national documents required for this assignment.
iii. Develop a list of key informants to be visited and interviewed. This will included selected civil societies, CCIs, children courts, children/youth among others.
iv. Organize for contact meetings with these informants.
v. Together with international consultant, develop tools to be used during the contact sessions with key informants.
vi. Together with lead consultant and staff members of DCS, visit selected districts and interview key informants.
vii. Generate a report from all field visits, highlighting current practices, key lessons learnt and recommendations for input into the final guidelines on foster care and guardianship.
viii. Together with the lead consultant, present findings from field visit to TWG and a wider stakeholder forum as recommended by DCS.
ix. Assist the international consultant to develop the zero and final drafts of the guidelines on foster care and guardianship.
x. Throughout the process, identify issues/gaps on foster care and guardianship that need to be included in the Children Act and draft language for inclusion into ongoing process of amending the Children Act.
xi. Share the ‘draft amendment language’ document with the team leading the process of amending the Children Act and with wider stakeholders for the purposes of validation.
xii. Develop a ‘final amendment language document’ and hand it over to KLRC and/or the team leading the amendment the Children Act as appropriate.
xiii. Generate a report summarizing processes/activities undertaken to accomplish this assignment.
TASK No of Days entitled to professional fee. Comments
International Consultant National Consultant
Review literature relevant to the assignment.
4
4
Draft outline of national guidelines on foster care 1 & 1/2 1/2
Draft outline of national guidelines on guardianship 1& 1/2 1/2
Develop tools for interviews in the field 2 2
Generate a list of persons/agencies to be visited and arrange for contact sessions
1/2
1 Work with DCS to generate this list.
Visit selected districts and interview targeted groups (refer to tasks listed above)
15
15 Each consultant will visit 4 provinces, each for 6 days.
Consultation meetings with stakeholders in Nairobi 4 4
Consolidate report from above field visits and Nairobi consultations 2 4
Share findings from above field visits with TWG and a wider stakeholders highlighting recommendations for input in the two guidelines 2 2
Develop draft 1 (one) of the foster care guidelines 3 1
Develop a draft 1(one) of guidelines on guardianship 3 1
Share draft 1(one) of the two guidelines with TWG and a wider stakeholders
4
4
Develop final draft of each guideline with input from above sharing session.
6
2
Present final draft of the guidelines on foster care and guardianship to Secretary of Children Affairs and Director of Children Services for their necessary action.
1
1
During the entire period of the assignment identify issues/gaps on foster care and guardianship that need to be captured in the amended Children Act and draft ‘amendment language’ on the same.
1
6
Share the ‘amendment language’ document with stakeholders for validation
1
2
Develop final ‘amendment language’ document and handover to KLRC and the team leading the process of amending of Children Act.
0
2
Compile a report summarizing the process/activities undertaken this assignment.
0
2
TOTAL DAYS 51.5 54
End products/deliverables
i) A report on current practices and lessons learnt from the field visits (with case studies on good practices).
ii) Final Draft of National Guidelines on Foster Care
iii) Final Draft of National Guidelines on Guardianship
iv) A document on ‘final draft amendment language’ that capture recommendations for amendment of the Children Act with regard to foster care and guardianship.
v) A report highlighting the processes of developing the guidelines on the foster care and guardianship.
Estimated duration of the contract and deadline for submission of end product:
The estimated duration of this assignment is two and half months. The table above explains the number of days each consultant is expected to put into the assignment.
One of the deliverables (i.e. Report on field visits) is expected to be ready within the first month of the assignment. The other four will be ready at the end of the assignment.
Qualification or specialized knowledge/experience required for b local or international consultant
i) Masters degree in social science preferably in either law or other child right/ protection related degree.
ii) 8 years of progressive experience in working within child protection area and especially as alternative care for children orphans and vulnerable children. For international consultant, experience working within Africa will be an added advantage.
iii) Knowledge on current debates on child protection arena, alternative care for orphans and vulnerable children and social protection for vulnerable populations.
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