Child adoption process in Kenya is the process through which a child is permanently placed with a legal parent or parents, thereby vesting the parental rights and responsibilities relating to a child in the adopter.
In all matters pertaining children, the applicable law in Kenya is the Constitution of Kenya 2010 and the Children’s Act 2022. Kenya is also a signatory to the Hague Convention on Inter-Country Adoptions. In dealing with children matters, regard and attention must be paid to the best interests of the child, Adoption notwithstanding.
Types of child adoption under Kenyan law
Under Kenya’s law, there are 3 types of adoptions:
- Kinship adoption – refers to adoptions by applicants who are relatives of the child.
- Local adoption – refers to adoptions in relation to which the child is resident in Kenya. The adopting parent or parents are Kenyan nationals resident in Kenya.
- Foreign adoption – refers to adoptions by foreign nationals or Kenyan nationals with dual citizenship.
Preliminaries
The adopter must meet certain prerequisites or prior requirements before the process of child adoption can begin. This deals with who is qualified to make an application for adoption. It also outlines which children are eligible for adoption, circumstances surrounding the child as to warrant adoption and at what age.
- The Child
Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was born in Kenya. Further, the child concerned must have been in the continuous care and control of the applicant within Kenya. This should be for a period of three consecutive months preceding the filing of the application.
In addition, the law 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 or whose parents’ or guardian’s whereabouts cannot be traced within a period of one year;
- children who are willingly offered for adoption by their biological parents in accordance with regulations made under this Part.
- Must be declared free for adoption by a registered adoption society
- Be evaluated and assessed by a registered adoption society
Who may apply for child adoption
Section 186 of the Children Act 2022, provides that either a sole applicant or two spouses jointly may make an application for Adoption.
The requirements for the applicant are that:
- 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 of the applicants in a joint application, is/are more than twenty-one years older than the child.
- a sole applicant or one of the joint applicants is the mother, father or relative of the child.
Who cannot apply to adopt a child
The Children Act 2022 provides that the following are not eligible to make an application for adoption:
- is of unsound mind within the meaning of the Mental Health Act (Cap. 248);
- is incapable of exercising proper care and guardianship of a child;
- has been convicted by a Court of competent jurisdiction for any of the offense specified in the Third Schedule or similar offense;
- in the case of joint applicants, if the applicants are not married to each other;
- is a sole male applicant except where the applicant is a biological relative of the child; or
- is a foreign applicant except where the applicant is a biological relative of the child.
Process of adoption
The law provides that no adoption agency, institution, individual or public officer may make or facilitate the making of any arrangements for the adoption of a child. Under this Act unless the agency or institution is duly registered as an adoption society in accordance with this Act.
The procedure for adopting a child in Kenya is as follows:
- Visit a registered adoption society
After the applicant has met the demands of the prerequisites, the next step will be to visit a Registered Adoption society to begin the actual process.
- 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 then conduct a home visit. This is to satisfy itself of the living conditions and suitability of the parents, as well as conduct checks to ensure the child is free to be adopted. If the society is satisfied after conducting the necessary checks, it will declare the child free for adoption.
- Child placed under care of applicant (s)
The Adoption Society will then place the child under the care of the applicants for a period of not less than 3 months. After which the applicant (s) can file an application in court for Adoption.
Application to court for an adoption order
Under Section 183 of the Children’s Act 2022, one is required to make an Application for Adoption to the High court which shall then issue an Adoption Order authorizing an applicant to adopt a child. It further provides that all Adoption proceedings shall be heard and determined in chambers. The identity of the child and the applicants shall be kept confidential.
An application for an adoption order in respect of a child shall be accompanied 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; and
- in the case of a child who has attained the age of ten years, the child himself or herself. However, If the child has a disability which restricts or impairs the child’s 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.
The application for an adoption order must also be supported by a report made by a duly registered adoption society recommending that an adoption order be made. The report shall contain the society’s findings and recommendations in respect of the child and the applicant or applicants.
Appointment of a guardian ad litem
The Court will then appoint a guardian ad litem either on its own motion or by application of the parties. The Guardian ad litem will safeguard the interests of the child pending the determination of the adoption proceedings. The appointment of the Guardian ad litem expires once the court makes the final order.
The Child Adoption order
Before making an adoption order, the Court shall inquire into and be satisfied on evidence before it that every person whose consent is required has consented to and understands the nature and effect of the adoption order for which the application is made. Both the applicant and the child should have been assessed and evaluated by a duly registered adoption society in Kenya.
If the Court is satisfied that every limb has been complied with, it will make the final adoption order. Every adoption order made by the Court shall contain a direction to the Registrar to make an entry in the Adopted Children Register in the prescribed form.
- Registration of adoption order
After the court has issued the Adoption Order, the applicant will present the said order to the registrar of children. This is in order to make an entry in the Adopted children register relating to the Adoption. A certified copy of entry in the Adopted Children Register that is sealed or stamped with the seal of registrar shall be admitted as conclusive evidence of the adoption to which it relates.
- Issuance of certified copy of entry
The Registrar, after making the entry in the Adopted Children Register, shall proceed to issue a certified copy of the said entry to the Applicant (s). The Registrar may prescribe a fee.
CONCLUSION
The effect of an adoption order is that all rights, obligations, duties and liabilities relating to the child are transferred to the applicants as if the child were their biological child.
Remember: The above is not specific legal advice for you. Always consult a lawyer to determine the best option for your specific situation
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