The process of adoption in Kenya is governed by the Children Act and the guidelines issued thereunder. The Children Act aims to protect the rights and welfare of children throughout the adoption process.
The Act contemplates three (3) main categories of adoption:
Kinship Adoption
Adoption of a child by a person who is a relative of the child.
Local Adoption
Adoption of a child resident in Kenya by Kenyan nationals resident in Kenya.
Foreign Adoption / Inter-country Adoption
Adoption by: Kenyan nationals with dual citizenship or foreign nationals whether or not resident in Kenya or non-Kenyan nationals but are biologically related to the child or Kenyan nationals who have lost their nationality by operation of the law of the host country.
Below are key aspects to take note of in the adoption process:
Eligibility
- The child must have attained the age of six (6) weeks;
- The National Council for Children’s Services must have declared the child to be free for adoption;
- To be eligible to adopt a child, one must be over 25 years of age, not above 65 years of age, and at least 21 years older than the child they intend to adopt. This does not apply in any case where a sole applicant or one of the joint applicants is the mother, father, or relative of the child.
- The Court shall not make an adoption order in favour of a sole male applicant, unless the applicant is a blood relative of the child;
- Joint applicants must be married to each other. Married couples must adopt jointly.
An applicant is not allowed to preselect a prospective adoptive child except in the case of kinship adoption or adoption by a foster parent seeking to adopt a fostered child under his or her care.
Assessment and Evaluation:
Prospective adoptive parents must undergo a home study conducted by a social worker from a registered adoption society. The report assesses the suitability of the home environment and the ability of the applicants to care for a child, and meet their obligations in relation to future custody, maintenance, and education of the child.
Foster Period:
The prospective adoptive child must have been in the continuous care and control of the applicant within Kenya for a period of three consecutive months preceding the filing of the application for adoption. This is to allow bonding between the child and the new parents. This period is under the supervision of an adoption society.
Recent Amendments and Evolving Trends
Legal Process:
After the foster period, the adoption process moves to court. Prospective parents must file a petition for adoption with supporting documents, including the home study report by a registered adoption society recommending the adoption, their financial status report, and the child’s birth certificate or any other identifying information.
The Application shall also be accompanied by consents of the following persons:
- parent or guardian of the child, or any person who is liable by virtue of any order or agreement to contribute to the maintenance of the child;
- on the application of one of the spouses, the consent of the other spouse; and
- child who has attained the age of ten years.
The court has powers to dispense with the requirements of any of these consents. In doing this the court shall consider the interests of the child as paramount and, subject thereto, give priority to the interests of the parents, guardians or relatives of the child over those of the applicants. The consent may be withdrawn at any time before the court makes the adoption Order.
The Court shall make an order appointing a fit person to be guardian ad litem of the child to whom the application relates. The Guardian ad litem shall be under a duty to safeguard the interests of the child pending the determination of the adoption proceedings.
Court Ruling
The court will hear the petition and consider all the evidence presented, including the recommendations of the adoption society. If satisfied that the adoption is in the child’s best interest, the court will issue an adoption order.
The court makes exceptions where the biological parents of the child claim back custody, but give emphasis on the best interest of the child and the time already spent with the foster parents.
Adoption Order and Registration
Once the adoption order is granted, the Registrar of Births makes an entry in of the order in the Adopted Children Register and an entry is made in the Register of Births with the word “Adopted”.
A certified copy of an entry in the Adopted Children Register that is sealed or stamped with the seal of the Registrar shall be admitted as evidence of the adoption to which it relates.
Removal of a child from Kenya pending issuance of Adoption Order
An applicant who has received a child into his or her care for the purposes of an adoption shall not remove the child from Kenya except with leave of the Court. In granting this Leave the court shall have regard to:
- exceptional circumstances exist in relation to the health, welfare and safety of the child;
- written consent of the parents or guardian of the child, if they are living or can be found, to the removal of the child from Kenya has been obtained; and
- a welfare report has been made by the parent or guardian of the child, if they are living or can be found.
The Court shall make a wardship order in respect of the child, and shall cause the applicant to execute a security bond with sureties requiring that the child be returned to Kenya by the applicant within such period as may be specified by the Court, and give such directions as may be necessary to secure the return of the child to Kenya.
Post-Adoption Support
Some adoption agencies provide support after the adoption process, helping with the adjustment period and any legal issues that might arise.
Effect of adoption
- Duties and responsibilities
all rights, duties, obligations and liabilities of the biological parents in case of a first adoption or adoptive parents in case of subsequent adoption are extinguished and the same vest in and are exercisable by, and enforceable against, the adopter.
- Succession Laws
If the adopter or the adopted child or any other person dies intestate their property shall devolve in all respects as if the adopted child were a biological child of the adopter.
In addition, any disposition of property made, whether by instrument inter vivos or by will, at the date of an adoption order any reference to the children of the adopter shall be construed as, or as including, a reference to the adopted child.
3. Marriage Laws
An adopter and the adopted child shall be deemed to be within the prohibited degrees of consanguinity, and this shall continue to have effect notwithstanding that some person other than the adopter is authorised by a subsequent order to adopt the same child
4.Work Injury Benefits Act
For purposes of this Act, a child whom a deceased employee had been authorised to adopt under an adoption order shall be deemed to be a member of the family of the employee, and an adopter shall be deemed to be the parent of a deceased child whom he had been authorized to adopt
The court process and considerations are on a case to case basis, noting that the adoption may either be foreign or local; biological or non-biological; and by a single person or married couple.
Lastly, the timelines depend on how fast the case is expedited, but would be between 6-8 months.
The cost of adoption is subsidized by the state whereby the payments include procedural matters such as home study and taking of fingerprints of parties. The general outlook of children matters is that the processes are made affordable and ideally free for the best interest of the child to be attained.
The information provided on this blog is for general informational purposes only and is not intended to be legal advice. For personalized legal counsel, please consult with a qualified attorney.
