Adoption And Guardianship In Kenya
9 min read
The process of adoption and guardianship in Kenya, prerequsites, who and who is not allowed to adopt and under what special circumstances one is allowed to adopt.
Adoption is the legal process by which the applicant, who must be an adult, gets the authority to act as a child's parent. The application is made to High Court of Kenya for grant of adoption order. This is done in chambers and the identity of the child and applicant is kept confidential.
An adoption order donates or grants the adopting parent all the duties and responsibilities of a parent upon that child, as though they were the biological parent. This must be greatly distinguished from guardianship which merely refers to a person who has charge or control of the child and a foster parent which simply refers to a parent registered under the Act to keep and care for a child apart from the child’s parents, guardian or relative.
Once issued, the order is served on the Registrar-General (Marriages and Adoptions Office) for entry into the Adopted Children’s Register and issuance of the Adoption Certificate.
The court process entails:
- Appointment of Guardian ad Litem
- Hearing
- Assessment Reports
- Final adoption orders
- Issuance of adoption certificate by Registrar General.
The process is usually not adversarial. The court in this case is merely a medium of ensuring that applicable legal provisions relating to adoption are adhered to and promotes the best interest of the child.
The principal law relating to adoption in Kenya is the Children Act of 2001 . The rules and regulations to this Act are found in Children (Practice and Procedure Parental Responsibility) Regulations of 2002. Additionally,Kenya subscribes to the Hague Convention; an international instrument of the United Nations that regulate and guide child adoptions worldwide, and is the general standard for countries that have ratified it.
The Children Act stipulates requirements for eligibility for a person eligible to adopt as well as for a child to be adopted. It sets the minimum age for a child to be adopted at six weeks. Besides meeting the minimum age, the child must have been declared free for adoption by a registered adoption society in the country.
Documents to accompany the application for adoption
- Birth certificates of both applicants
- Marriage certificate
- Passport copies
- Letter from employer (s) indicating period of employment and remuneration or bank statement(s) if self-employed.
- Letter from a person(s) who would be the legal guardian(s) of the infant in the event of death of the applicants.
- Certified Home study (as above)
- Certificate of approval to adopt a foreign child
- Two full sized photos
Qualification of adopting parents
On qualifications of an adopting applicant(s), the requirements depends on whether the applicant is a Kenyan or a foreigner.
Prerequisites for a Kenyan Citizens
Different countries have different adoption laws. In Kenya, for one to adopt the first child, the following prerequisites have to be met :
- Must be aged between 25 and 65,
- Must be 21 years older than the child they wish to adopt,
- Is a mother or father of child,
- In case of a joint application the couple must have been married to one another for at least three years,
- Single applicants (male or female) cannot adopt children of the opposite sex unless under special circumstances,
- A sole foreign female applicant can only adopt under special circumstances.
Prerequisites for International Applicants
NOTE: At the moment there is a moratorium placed on International Adoptions (foreigners adopting Kenyan Children) This was due to the fact that there were many increased cases of such children being abused.
- Only married couples may apply for an International Adoption,
- In practice, all applicants MUST have completed and complied with the accepted adoption proceedings in their home country/ country of Residence before making the application. Proof of such approval should accompany the application,
- A certified Home Study Report from a certified Adoption Agency, Certified Social Worker or other relevant authority MUST also be submitted with the application,
- Verification MUST be given by the relevant authority of the country of the parents’ origin that the child will be granted citizenship once the adoption order is granted,
- The Kenyan law requires that the applicants MUST reside in Kenya with the child for a mandatory three months before the legal process begins. Time must then be allowed for the legal process and processing of the travel documents (On average 4-6 months).
- Prospective adoptive parents must reside in Kenya with the child for at least three months before legal procedures begin.
- Adoptive parents must submit post adoption reports on the child’s welfare (with pictures) for five years, every three months for the first 2 years immediately following the adoption and then every 6 months for the last three years. Post adoption reports are submitted to the adoption society that was initially identified by the prospective adoptive parents.
Necessary consents to be obtained
- If applicable, from existing parents, guardians or anyone else contributing to the maintenance of the child under any agreement or order;
- If applicable, from parents or guardian(s) of the mother of the child in a case where the mother is a minor;
- If applicable, from the step-father who has acquired parental responsibility
- From the spouse of the prospective adoptive parent, if the spouse is not available in person.
- In case of foreigners not residing in Kenya, the consent of a competent jurisdiction or a government authority situated in the country where both or one of the spouses ordinarily resides, permitting the spouses to adopt a foreign child.
- In case of a child who has attained the age of 14 years, the consent of the child.
Persons Prohibited from adopting
The law prohibits certain people from adopting children. Section 158 provides that an adoption order shall not be made if the applicant or, in the case of joint applicants, both or any of them, is not of sound mind within the meaning of the Mental Health Act, has been charged and convicted by a court of competent jurisdiction for or any of the offences set out in the Third Schedule to the Act or similar offences, is a homosexual, in the case of joint applicants, if they are not married to each other or is a sole foreign male applicant.
Adoption advertisements prohibited
It is illegal to publish an advertisement indicating that a parent or guardian desires to place a child for adoption, that a person wishes to adopt a child, or that a person (who is not an adoption society) is willing to facilitate the adoption of a child.
Persons permitted to adopt only under special circumstances
The Children Act provides that adoption orders should not be made in favour of certain persons, unless such grant is necessitated or justified by special circumstances. This people include a sole male applicant in respect of a female child, a sole female applicant in respect of a male child, an applicant or joint applicants who has or both have attained the age of 65 years or a sole foreign female applicant.
These provisions have made it difficult for single parents to adopt children, unless the court is of the view that a special circumstance does indeed exist. The adoption committee established in the Children Act has formulated guidelines to set out the special circumstances for sole applicants for adoption. They include, but not limited to:
- Whether the child is a relative,
- Whether the child has special needs and the applicant is willing and has capacity to take care of the child,
- Whether the applicant has adopted or has another biological child or children over whom she is willingly exercising parental responsibility,
- Whether the child to be adopted has a sibling who is also being adopted by the applicant,
- Whether the applicant is the only person available to adopt the child, and
- Whether the applicant is the legal guardian of the child or children appointed by will or in adoption proceedings and the parents die or become permanently incapacitated.
The circumstances can be different depending on each set of facts. The applicant must persuade the court that it is in the best interest of the child that the adoption orders are issued in their favour, since that is the primary concern of the court.
Legal Process
The legal process should commence immediately after the 3 months foster period. For this process, you will need:
- A lawyer - to represent you in court. NOTE: you should NOT commence the legal procedure before a written consent is granted by the respective home.
- Guardian ad litem - This is Latin for "guardian at law." This is the person appointed by the court to look out for the best interests of the child during the course of legal proceedings. It can also be done to protect the best interest of the child during the adoption proceedings. Preferably a social worker, though a friend can also act as thus. The guardian must do a report and file it in court.
- Declaration from a Registered Adoption Society –This is a declaration that the Child is free for Adoption and the prospective Adoptive parents fit to Adopt. For this purpose, the Society’s social worker will make a visit to your home.
- Report from the Children’s Department – A Children’s Officer will conduct a Home Study and File a report in court.
NOTE:
- The legal process varies in time depending on the court schedule, the advocate you engage, and sometimes how fast the reports above are done and filed in court.
- On average it takes between 4-6 months.
- You should not make any arrangements to travel out of the country with the child until the Adoption/Guardianship order has been granted by the court. It is against the law.
- Custody; It must be clearly understood that the child is in the legal custody of the relevant home until the Guardian is appointed.
- The applicant therefore has no legal claim over the child until the High Court of Kenya has granted the Adoption or Guardianship order.
Explanatory Memorandum For Prospective Adoptive Parents
- Once the court makes an adoption order in your favor you shall acquire all the rights duties, obligations and liabilities of a parent over the child permanently as if the child were born to you.
- All such rights, duties, obligations and liabilities of the natural parent shall be extinguished permanently.
- The adoption order is absolute and irreversible.
- For the purpose of the jurisdiction of any court to make orders as to the legal custody, maintenance of and the right of contact with the child both and your spouse stand to each other and to the child in the same relation as the lawful father and mother of the child and the child shall stand to you in the same relation as to a lawful mother and father respectively.
- An adopted child has all the inheritance rights as if he or she was born to you.
- For the purpose of any written law relating to marriage for the time being in Kenya you, your children (If any) and the adopted child shall be deemed to be within the prohibited degree of consanguinity and therefore cannot enter into a marriage relationship.
- Often the child may have been through traumatic experiences and will need you to provide a caring and secure family environment.
- The child has a right to know that he or she is adopted, and has a right to know about his origin as soon as the child is able to understand.
- You may also be asked to provide other forms such as medical forms, marriage and divorce certificate, citizenship certificate, police record authorization and previous assessment for placement of children, birth certificate and other information. You shall be required to furnish the adoption society with a full size photograph taken three months prior to the making of the application. For joint applicants, photograph of the couple will be required.
- An application to the adoption society does not guarantee placement.
- The child placed with you pending an adoption order may be withdrawn from you.
- That periodic home visits and supervision will be carried out by a representative of the adoption society while the child is placed with you pending an adoption order and that you shall inform the adoption society in case of change of address, serious illness or death of the child within 24 hours.
- You shall inform the adoption society in the event death of a spouse of change of marital status in case of joint application.
Also check: http://www.kchadopt.org/adoption/4-how-to-adopt