A REVIEW OF THE ADOPTION PROCESS IN KENYA

Kibatia & Company Advocates aims to provide compliance support and legal advice to Clients on an ongoing basis which is direct, practical & innovative. To this end, we hereby give the legal alert on the following:

A REVIEW OF THE ADOPTION PROCESS IN KENYA

Adoption is the legal process through which children who will not be raised by their birth parents become full and permanent members of another family.

It is the process by which non-biological parents gain parental responsibility over a child.

It can be either inter-country (adoptions by foreign nationals of a Kenyan child, after which the child will live in the country of the adoptive parents) or local. However, on 26^th November, 2014 the Kenyan government placed an indefinite moratorium on inter-country adoptions.

Adoption in Kenya is governed mainly by the:

• The Children Act, 2001 (the Act)
• Hague Adoption Convention

In this alert we will review the adoption process in Kenya highlighting who can adopt/be adopted and how they can adopt.

Who

• Child

Section 157 of the Act states that any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was or was not born in Kenya.
However, in order to get an adoption order, the child must have been in the continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the filing of the application. Further, both the child and the applicant(s) may be evaluated and assessed by a registered adoption society in Kenya.

• Parents

An application can be made either by a sole applicant or jointly by two spouses where the applicant or at least one of the joint applicants:

i. is at least twenty-five years old

ii. is at least twenty-one years older than the child

iii. has not attained the age of sixty-five years

iv. is a relative or parent of the child.

1. Process of adoption:

Applicants who have satisfied the conditions above must first approach a registered adoption society, which assesses them and conducts a home visit to ascertain their living conditions and their suitability as parents. The society also conducts checks to ensure that the child is free to be adopted.

If the society is satisfied after conducting the necessary checks on the applicants, it will match the applicants with the child and declare the child free for adoption. The society can then place the child under the care of the applicant(s) for a period of not less than three months, after which the applicants can file an application in court.

The application may be accompanied by information relating to the child and the applicant; in addition to written consents, such as:

1. Consent of every person who is a parent or guardian of the child;
   
   
2. Consent of the parents or guardian of the child’s mother – in the case of a child born out of wedlock whose mother is also a child.
   
   
3. Consent of the father – in the case of a child born out of wedlock whose father has acquired parental responsibility in respect of the child;
4. Consent of the other spouse – in case only one of the spouses is making the application.
   
   
5. Consent of the court of competent jurisdiction or of a government authority situated in the country where both or one of the spouses is ordinarily resident, permitting the spouses to adopt a foreign child – in the case of two spouses who are not Kenyan citizens and who are not resident in Kenya.
   
   
6. Consent of the child – in the case of a child who has attained the age of 14 years.

Once the court hears and determines the application, it could either grant or deny an adoption order. The adoption order would transfer all rights, duties, obligations and liabilities relating to the child to the applicants as if the child were their biological child.

TAKE NOTE: All adoption proceedings are to be heard and determined in chambers and the identity of the child and the applicants must be kept confidential.

We trust that you shall find this information useful and should you require further information or discussion on this matter, kindly get in touch with us. Please note that this information is for public consumption and not intended to offer professional legal advice.