Laws governing child adoption in Kenya
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.
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).
2. Requirements
The following documents are required when an adoption is being pursued:
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 the couple wishing to adopt
h. Medical report of the 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
l. Certificates of good conduct.
3. Time taken to complete an adoption process
The average time for an adoption is 6 months.
4. Eligibility for Adopting a Child
a. The child to be adopted must be at least six (6) weeks old and been declared free for adoption by a registered adoption society. No individual or other body of persons, other than a registered adoption society, can legally make any arrangement for the adoption of a child. Informal adoptions are illegal and constitute an offense under the Act.
b. Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was/was not born in Kenya.
c. Under section 157 (1) of the Act, an application for an adoption order can only be made if the child concerned has been in the continuous care and control of the applicant (adopter) within Kenya for three (3) consecutive months preceding the filing of the application.
d. An adoption order may be made upon the application of a sole applicant or jointly by two spouses.
e. The applicant or at least one of the joint applicants must have attained the age of 25 years and be at least 21 years older than the child but should not have attained the age of 65 years. Note, however, that the age requirements are not mandatory where the applicant is the mother or father of the child or is otherwise a relative of the child.
5. Persons not allowed to adopt in Kenya
Section 158 (3) of the Children’s Act, prohibits the making of an adoption order in favor of an applicant who:
a. is not of sound mind within the meaning of the Mental Health Act (Cap. 248); or
b. has been charged and convicted by a court of competent jurisdiction for any of the offences set out in the Third Schedule to the Act or similar offences. The prescribed offences generally include defilement, sexual offences, immoral behavior, attempt to procure an abortion, unnatural offences and assault.
c. is a homosexual; Homosexuality is illegal in Kenya hence the prohibition of gay persons from adopting children.
d. in the case of joint applicants, if they are not married to each other; or
e. is a sole foreign male applicant.
6. Consents needed for adoption in Kenya
Consents that will be needed before the adoption is finalized include:
a. The child’s consent if he or she is 14 years and above
b. Consent of guardians/ parents or the person with whom parental responsibilities lie with
c. Consent of the courts or relevant government authorities from their country in case of non-residents.
There are certain instances where consent for adoption can be withheld:
a. First is when the parents or guardians are untraceable because the child was abandoned
b. It is also possible to withhold consent if spouses are permanently separated
7. The Application Process
a. A prospective adopter forwards an application for adoption to the registered adoption society.
b. The society obtains a social worker who makes an appointment to visit the applicant’s home for purposes of knowing the prospective adopter better and to assess his accommodation to determine its suitability for the child.
c. After the visit, the social worker makes a report of his assessment in the form prescribed under the Schedule to the Adoption Regulations.
d. The adoption society also makes arrangements to obtain a medical report on the health of both the child and the adopter in the prescribed forms.
e. The case committee of the adoption society vets the application together with the social worker’s report and the health report of the child and the adopter.
f. The Committee then makes a decision to approve the application or to defer or reject the same with stated reasons.
g. The approval intimates that the child is free for adoption and approves the adopter.
h. Once the adopter has been approved by the case committee, the adopter is required to read and understand the explanatory memorandum for adopters prescribed in the Regulations and sign the certificate of acknowledgement attached to the memorandum.
i. Upon approval of the application, the child is delivered into the care and possession of an adopter by or on behalf of an adoption society.
j. The child is visited in the first month and at least once in every three months thereafter by a representative of the society, who reports on the case to the case committee.
k. The committee may recommend appropriate action to be taken in the event that the child is not being taken care of properly.
l. The adopter makes an application for an adoption order to the High Court of Kenya.
m. The court may on its own motion or upon the application of the adopter, appoint a guardian ad litem for the child pending the hearing and determination of the adoption application.
n. The court may reject the application. The adopter may appeal the decision to the Court of Appeal.
o. The court may grant the adoption order which is then registered by the Registrar-General through making an entry in the Adopted Children Register.