Ichung’wah headlines push to change law barring male guardians from adopting children
A proposed law allowing males to adopt children is awaiting approval by MPs with claims of unfairness in the current Act.
A proposed law change to lift the ban on male guardians adopting children has sparked controversy.
Male guardians will be allowed to adopt children if MPs approve proposed amendments to the Children Act 2022, which is currently before Parliament.
The Statutes Law (Miscellaneous Amendments) Bill, 2023 sponsored by National Assembly Majority Leader Kimani Ichung’wa seeks to amend the children’s Act, 2022 to remove the restriction which bars sole male applicants from being granted adoption of a child.
“The Bill proposes to amend the Children’s Act, 2022 to remove the provisions which prohibit the court from a sole male applicant adoption of a child,” reads the proposed law.
Section 186 (e) states that “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.”
The Act also states that the court shall not make an adoption order in favour of an applicant or joint applicants if the applicant or joint applicants, or any of them is of unsound mind within the meaning of the Mental Health Act, is incapable of exercising proper care and guardianship of a child, is a foreign applicant except where the applicant is a biological relative of the child.
The court may also decline to make an adoption order in the case of a joint applicant if the applicants are not married to each other.
The Act also states that the court may at its sole discretion decline to make an adoption order in favour of any person or persons if the court is of the view that it is not in the best interest of the child.
An adoption order in favour of a child shall be accompanied by written consent of 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 law requires the consent of the other spouse and in case of a child who has attained the age of 10 years, the consent of the child himself is needed.
If the child has a disability which restricts or impairs his ability to independently give his or her consent, the child shall be accorded such assistance including the assistance of an intermediary to facilitate his or her written consent.
Programme manager legislation, governance and justice at the Children Foundation Shantel Onyango told the Saturday Nation that the proposed legislation is premature at the moment since there still no mechanisms to ensure safety of children especially the girls under the care of a man.
“There are still no mechanism to ensure there is no sexual abuse are still not well established, so we can’t say that our children especially the girls will be safe,” Ms Onyango said.
“The risk of abuse is high especially if the child is not biologically related to the man,” she added.
She said for such a proposal to be put in place to allow sole male applicants to adopt a child, there is a need to escalate in person visits of children officers in the residence of the applicant before and after the adoption.
Executive Director African Institute for children Studies Samuel Munyuwiny told the Saturday Nation that the current law is discriminatory and based on assumptions that male applicants seeking to adopt a child are likely to abuse a child under their care, an issue he dismissed.
“There is no longer evidence that male people are greater abusers of children. The statistics are different and we should look at matters case-by-case because nowadays children suffer even under women,” said Mr Munyiwiny.
He said every child deserves to grow under family care and if after following all the laid down procedures found that the care can be achieved under a man, then the opportunity should be granted.
“You don’t deny a person an opportunity just because he is male. That is discriminatory and against the Constitution. What we need to do as a country is to ensure that adoption committees continually monitor children adopted on a case by case basis,” said Mr Munyuwiny.
The Children’s Act 2022 pushers gives effect to Article 53 of the Constitution of Kenya which makes provisions for children’s rights, equal parental rights, and responsibilities.
It provides for the alternative care of children through guardianship, foster care placement, and adoption. It also seeks to regulate the administration of children’s services.
Mr Ichung’wah, however, clarified that the Bill is just aligning with a court order that found the action to bar male guardians discriminatory.
Mr Ichung’wah said the Bill does not allow men to adopt a child that they are not related to as such a move would open room for gayism.
“We are not opening a room that men can now just adopt children they are not related. We are saying, for instance, if your brother dies, you can take up the children and live with them,” Mr Ichung’wah said.
He was referring to the court case of HCCC E012 of 2023: Riples International v The AG & Speaker of National Assembly and Others.
The petition challenged sections 186 (4) and 186(6)(e) of the Children Act, 2022. They claimed that sections are discriminatory and limit the rights of sole male to adopt children without justification. The petition further claimed that the sections deny institutionalised children a chance to get conducive homes.
The issue was also addressed in Re Baby M, adoption cause E004 of 2022, where the court held that sections 186(4) violate constitutional provisions against discrimination and question the validity of the sections.
