ADOPTION IN KENYA

Introduction

Adoption is the process through which a child is permanently placed under the legal custody of an adopter (a person in whose favor an adoption order is made), thereby vesting parental rights and responsibilities relating to that child in person. Adoption can either be inter-country/foreign adoption (in which case adoption is done by a foreigner or local with dual citizenship), local adoption (in which case the adoption is done by a Kenyan resident), and kinship adoption (in which case the adopter is the relative of the child.

Primarily, matters pertaining to adoption of a child in Kenya are governed by the Kenyan Constitution and Children’s Act 2022. Kenya is also a signatory to the Hague Convention on Inter-Country Adoption.

Children who may be adopted

The Children’s Act,2022 states that for a child to be eligible for adoption they must be at least six (6) weeks old and must be declared free for adoption by the National Council for Children’ s Services. Further, Section 185 of the Children’s Act states that any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was born in Kenya. In order to for an adoption order to be issued the child must have been in the continuous care of the applicant within Kenya for a period not less than three (3) months preceding the date of the adoption application.

The application for an adoption order must be supported by a report made by a duly registered adoption society recommending that an adoption order be made.

In addition, the Act provides that the following children shall be eligible for adoption:

• A child who is an orphan and has no guardian or caregiver;
• A child who has been abandoned and the whereabouts of their parents’ or guardian cannot be traced in a period of one year; and
• Children willingly offered for adoption by their biological parents in accordance with the Regulations.

Adopter eligibility

The Act stipulates that either a sole applicant or two spouses jointly may make an application for adoption. The following are requirements for the applicants;

• The applicant must have attained the age of twenty-five years;
• He/she should not be above the age of sixty-five years; and
• The applicant, or both the applicants in a joint application, is/are more than twenty-one years older than the child.
• A sole male applicant if the applicant is a blood relative to the child.

Disqualified applicants

The Act provides that persons of unsound mind with the meaning of the mental Health Act, persons incapable of exercising proper care and guardianship of a child, and persons who have been convicted by a court of competent jurisdiction for any offence specified in the Third schedule or similar offences are not eligible to make an application for adoption.

The following is an outline of the procedures for adoption in Kenya;

• Assessment – both the applicant(s) and the child will be assessed and evaluated by a duly registered adoption society in Kenya.
• Home visit – the adoption society will conduct home visit to satisfying itself of the living conditions and the suitability of the parents. If satisfied the society will declare the child free for adoption.
• The adoption society will then place the child under care of the applicant(s) for a period not less than three months. After which the applicant(s) can file an application in court for adoption.

The application shall be made to the High court which shall proceed to issue an Adoption order. The identity of the parties to the application shall be kept confidential. The application for adoption order shall be accompanied by written consent of the following;

• A parent or guardian of the child, or any other person liable by virtue of any order or agreement to contribute to the maintenance of the child;
• Consent of the other spouse in the case of a sole applicant; and
• In the case of child who has attained the age of ten years, the child himself or herself.

Upon issuance of the adoption order the court will appoint guardian ad litem during the pendency and disposal of the application to protect the interest of the child until such a time that the final order will be issued. The court shall evaluate the evidence before it including assessment report by the adoption society before issuance of the final adoption order. The applicant will present the final order to the registrar of children for entry into the adopted children register, and be issued with a certified copy of the entry.

Conclusion

Adoption fully transfers rights and obligation relating to the child being adopted to the adopter in the manner that it is legally vested in biological parents.

At A.O.WANGA ADVOCATES we are happy to assist you with all matters relating to adoption in Kenya.

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