doption in Kenya has for a very long time been considered a long and tedious process. As such persons wishing to adopt have and continue to experience several hurdles the largest being a lack of information. This article attempts to shed light on this somewhat uncommon area of law by giving a step by step overview of the adoption process in Kenya and the parties involved.
Both the Constitution and the Children’s Act are instructive in matters of child adoption in Kenya. In any matter concerning a child, the child’s best interests are of paramount importance as set out under Article 53 (2) of the Constitution
Section 4 of the Children’s Act also stipulates that in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
While it is notable that the law ranks the child’s best interests very highly it is arguable that there is leeway created in the wording allowing for the child’s interest to be balanced against other factors being considered by the court. In any event, the child’s best interests are a major concern to the court seized with the question of a child’s adoption.
The High Court is vested with the jurisdiction to make adoption orders pursuant to Section 154 of the Children’s Act. Children matters are heard in chambers for purposes of protecting the identity of the child and that of the adoptive parent(s).
Prior requirements to adopt
Some of the requirements when adopting a child would include;
a) The child’s birth certificate,
b) If the child is a school going child, a copy of the school progress report,
c) A children officers report,
d) Death certificate if the child’s parents are deceased,
e) Chief’s letter,
f) Copies of identification documentation of prospective adoptive parents,
g) Marriage certificate for couple wishing to adopt,
h) Medical report of adoptive parent,
i) Proof of financial status such as bank statements and pay slips,
j) Proof of home ownership,
k) Birth certificates of any children the adoptive parent may have, and
l) Certificates of good conduct.
The child’s biological parents’ consent has to be sought if they are alive as well as that of a sibling aged 18 years and over. Consent of a child’s biological parent may, however, be dispensed with in the event that he/she had abandoned, neglected or persistently failed to maintain the child or is accused of ill-treating the child.
If a child had been placed in an institution or children’s home and the child’s parents/ guardian have not been seen or heard from for a period of 6 months, the presumption of abandonment arises.
Who may/may not adopt a child?
An Applicant(s) wishing to adopt a child must be 25 – 65 years and should be at least 21 years older than the child. A child’s relative may also be eligible to adopt a child including the mother or father of the child.
Section 158(2) of the Children’s Act provides that:
“An adoption order shall not be made in favour of the following persons unless the court is satisfied that there are special circumstances that justify the making of an adoption order
a) Sole male applicant in respect of a female child;
b) A sole female applicant in respect of a male child;
c) An applicant or joint applicants who has or both have attained the age of sixty-five years;
d) A sole foreign female applicant.”
Section 158 (3) of the Children’s Act stipulates that an applicant or joint applicant may be denied an adoption order by the court if one;
(a) Is not of sound mind within the meaning of the Mental Health Act,
(b) Has been charged and convicted by a court of competent jurisdiction of offences against morality, offences involving bodily injury and any other offences under the Children’s Act,
(c) Is a homosexual,
(d) In the case of joint applicants, if they are, not married to each other,
(e) Is a sole foreign male applicant.
What is the role of an Adoption Agency?
An adoption agency’s role is that of oversight. A visit to an adoption society is often useful as most will guide one through the process of adoption. It is important to ensure that the adoption agency the Applicant is dealing with is duly registered and holds a valid license issued by the National Adoption Committee.
They ensure that children are placed in suitable homes in line with the best interest of the child. They also obtain the bio data of the child and the prospective adoptive parent(s). The purpose of this is to trace the child’s history and ensure that the child is free for adoption. A declaration that a child is free for adoption by a duly registered adoption society is a crucial prerequisite for adoption.
Once an adoption society declares a child free for adoption, a certificate is issued to this effect and the child is released to the Applicants for mandatory foster care pending adoption. A foster care agreement must be executed in this regard. Home visits are then conducted to ensure that the Applicant is financially and emotionally able and capable of providing for the upkeep of the child.
During placement, which will normally be three months, the issues for evaluation will mostly revolve around whether the adoptive parents are capable of taking on the challenge of raising a child as appropriate and further whether they meet the requisite social parameters. The Children’s Officer will then be expected to make an evaluation and do a report in that regard.
Once the home evaluation is complete, it is now time to move the court. The role of the court is limited to decide on the Applicant(s) eligibility to adopt a child based on evidence before it. Once the court gives an Adoption Order, it will direct that the Registrar General enters the Order in the Adoption Register.
An Adoption Order is final and the child is in no position to challenge the same once he or she has reached the age of majority.
Are foreigners allowed to adopt Kenyan Children?
An intercountry adoption is a process by which an individual can adopt a child from another country and bring the child to your country of residence to live with you permanently.
On 27th November 2014, however, the Cabinet declared an indefinite moratorium on Intercountry Adoption of Kenyan Children to foreigners. The decision was informed by Kenya’s ranking by the Global Report on Trafficking in persons 2014 that had the United Nations Office on drugs and crime cite Kenya as a source, transit & destination country in human trafficking.
Advantages of a formal adoption process
One characteristic of a formal adoption process is that it effects a permanent change in status. This comes with various advantages to both the parent and the adopted child.
First of all, the parent gets all parental and legal rights over the adopted child and this is irreversible. It protects the parent from future claims by the biological parents or blood relatives of the adopted child. Also, the parents are able to provide for the adopted children better as they can now be included as their official children/dependants in schemes such as insurance policies and medical covers.
On the part of the adopted child, they are able to enjoy a better parenting as the main cause of adoption is usually parents who have abandoned or are unable to provide for their children. A formal adoption process serves to safeguard the interests of the adopted child both during the lifetime of the adoptive parents as well as after their demise. During their lifetime, the parents are obligated to provide for the adopted child like any other of their children and after their demise, the adopted child is entitled to benefit from their estate like any other child of the deceased.