Want to adopt? Here’s what you need to know
Each and every child resident in Kenya can be adopted.
Dear Eric,
I need to understand adoption, please help.
Wanja
Children are about the only human beings that the law has treated with utmost sense and intention of care. It is constitutionally provided at Article 53 (2), and captured in many international legal instruments, that children’s best interest is the principle and power applied to push, relax and promote some decisions and actions.
The law that facilitates the rights of children is drawn and applied on the premise that their vulnerability is incomparable and immeasurable. Child adoption is one of those laws whose entirety is framed on the best interest of the child principle.
Adoption is the complete severance of the legal relationship between a child and their biological parents, or family, and the establishment of similar but new relationship between the said child and new parents, referred to as adoptive parents. At Section 2 of Part I of the Children’s Act (2022) defines adoption as the process through which a child is permanently placed with a legal parent or parents as described in Sections 183 of the Act.
Each and every child resident in Kenya can be adopted. Similarly, each and every adult has a fair chance to adopt a child. However, such child and such adult have to meet certain criterion established and entrenched in law.
For the child, there must be declaration from the National Council for Children’s services indicating that such child is available for adoption, and is not less than six weeks old, as provided for at Section 184 (1, a-b) of the Children’s Act.
Further, it is provided at Section 185 (4) of the Act that a child who is an orphan and has no guardian or caregiver able and willing to take care of the child, in addition to a child who has been abandoned or whose parents’ or guardian’s whereabouts cannot be traced within a period of one year, and children who are willingly offered for adoption by their biological parents in accordance with set regulations.
It should be understood that adoption is premised and executed in the best interest of the child, in an equation where the adopter’s interests are secondary, although necessary and right driven. As an adult, Section 186 of the Children’s Act provides that the court can make an adoption order for a sole applicant or spouses jointly. Such applicants must have attained the age of 25 years, and be younger than 65.
This is in addition to the requirement that either or both must be 21 years older than the child being sought for adoption. However, the afore-described restrictions will not apply if the applicants or either of them is the father, mother or relative of the child to be adopted. A sole applicant shall not be considered by any children’s court to adopt a child, not unless the applicant is a relative.
The law about children sits on their right side despite the provisions that demand fulfilment of responsibility assigned to them by caregivers, parents and institutions that shape and influence their growth and development. In adoption matters, the law does not allow a person of unsound mind as defined within the Mental Health Amendment Act (2022) to adopt a child.
Moreover, it is not permissible that a person incapable of exercising care and guardianship of a child or who holds a criminal record for offenses of sexual nature, indecent assault, human trafficking and arms smuggling besides corruption (as provided in the third schedule of the Children’s Act) to be granted adoption orders. In the scenario of joint application, such couples, not unless married to each other will not be granted adoption orders. Neither is adoption to a sole male applicant, unless there is a relationship with the child, similarly a foreign applicant except where such an applicant is a biological relative of the child.
The person who seeks to adopt a child, having fulfilled the aforementioned criterion, must put the same in writing through an application for an adoption order. Such an application must be supported by written consents of the following persons: a 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; in the case of a children who have attained the age of ten years, their consent to the adoption: and if the child in issue has disability, which likely impairs their capacity to independently give consent, such will be accorded assistance, including the assistance of an intermediary, to facilitate his or her written consent.
Upon application, the role of a social worker is activated to carry out a visit to the applicant(s)’ home, while the adoption society makes arrangements to obtain a medical report regarding the health of child and the applicant too. In converging the intentions of an adoption process, a counselor is assigned to prepare the adoptees on what it means to be an adopting parent.
Once this is availed, the court sets its decision to either accept or reject the application. Should it give the adoption order, the same will be registered with Registrar-General by an entry into the Adopted Children Register.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
