Child adoption in Kenya has often been considered a very long and tedious process, that makes some of the prospective adoptive parents be afraid to initiate the process. There a number of reasons why people adopt children and the biggest hurdle that most potential adoptive parents face is lack of information; from the requirements, prerequisites, consents, actual adoption process, down to the cost and even duration the whole process takes.
Any person who meets the set requirements and guidelines, can visit one of the many adoption agencies in Kenya and will be taken through the process in a professional manner. This article attempts to shed light on this somewhat uncommon area of law by giving a step by step overview of the adoption process in Kenya and all the information potential parents need to know before hitting the start button.
What is child adoption?
Adoption is the process by which a person assumes the parenting of a child, from that person’s biological or legal parent or parents. Legal adoptions permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents.
Law governing child adoption
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).
Who can be adopted?
A child who is below the age of 18 years and residing in Kenya may be adopted as long as;
- The child is abandoned and the whereabouts of the parents/guardians are unknown.
- The child is an orphan and there is no guardian/caregiver who is willing to take care of the child.
- The parents/guardians of the child have given consent for the child to be adopted (parent offer adoptions).
- The child requires an alternative permanent placement.
Requirements for adopting a child
Some of the requirements when adopting a child in Kenya include the following.
- The child’s birth certificate.
- If the child is a school going child, a copy of the school progress report.
- A children officers report.
- Death certificate if the child’s parents are deceased.
- Chief’s letter.
- Copies of identification documentation of prospective adoptive parents.
- Marriage certificate for couple wishing to adopt.
- Medical report of adoptive parent.
- Proof of financial status such as bank statements and pay slips.
- Proof of home ownership.
- Birth certificates of any children the adoptive parent may have.
- Certificates of good conduct.
Prerequisites for child adoption
There are some prerequisites that must be met for the adoption process to proceed, though an adoption order will in all the below circumstances be made to the applicants if the court is satisfied that there are special circumstances that justify the making of the order.
- The child is at least six (6) weeks old and has been declared free for adoption by a registered adoption society.
- 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.
- Any child who is resident within Kenya may be adopted whether or not the child is a Kenyan citizen, or was or was not born in Kenya.
a. Kenyan citizens
- Must be aged between 25 and 65.
- Must be at least 21 years older than the child they wish to adopt, unless the adopter is a relative of the child (kinship adoption) then the age requirements are not mandatory.
- Is a mother or father of child.
- In case of a joint application the couple must have been married to one another for at least three years.
- Section 158 (2) of the Act disallows sole applicants (male or female) from adopting children of the opposite sex unless under special circumstances. This is aimed to protect the adopted children from potential sexual abuse.
- A sole foreign female applicant can only adopt under special circumstances.
b. International applicants
- Only married couples may apply for an international adoption.
- All applicants must have completed and complied with the accepted adoption proceedings in their home country/country of residence before applying for adoption. Proof of such approval should accompany the application.
- A certified Home Study Report from a certified Adoption Agency, Certified Social Worker or other relevant authority must also be submitted with the application.
- Verification must be given by the relevant authority of the country of the parents’ origin that the child will be granted citizenship once the adoption order is granted.
- The applicants must reside in Kenya with the child for a mandatory three months before the legal process begins. Time must then be allowed for the legal process and processing of the travel documents (an average of 4-6 months).
Consents needed for child adoption
The following consents are needed for the adoption to progress.
- The child’s biological parents’ consent has to be sought if they are alive. Consent of a child’s biological parent may, however, be dispensed with in the event that he/she had abandoned, neglected or persistently failed to maintain the child or is accused of ill-treating the child.
- The child’s consent if he or she is 14 years and above.
- The consent of the child’s sibling aged 18 years and above.
- Consent of guardians or the person with whom parental responsibilities lie with, if the child’s parents are not alive.
- Consent of the courts or relevant government authorities from their country in case of non-residents.
Instances when consent for adoption is withheld.
- When the parents or guardians are untraceable or if a child had been placed in an institution or children’s home and the child’s parents/ guardian have not been seen or heard from for a period of 6 months, the presumption of abandonment arises.
- If the child’s parents are permanently separated.
Persons barred from adopting children
Section 158 (3) of the Children’s Act stipulates that an applicant or joint applicant may be denied an adoption order by the court if one;
- Is not of sound mind within the meaning of the Mental Health Act (Cap. 248).
- Has been charged and convicted by a court of competent jurisdiction of offences set out in the Third Schedule under the Children’s Act or similar offences. The offences stipulated include; defilement, sexual offences, immoral behavior, attempt to procure abortion, unnatural offences and assault.
- Is a homosexual.
- In the case of joint applicants, if they are, not married to each other.
- Is a sole foreign male applicant.
Adoption process
One can only adopt through a registered and accredited adoption society. The stages of adoption are:
a. Orientation meeting
One visits the registered adoption society and makes enquiries. The adoption agency will explain in detail the adoption process and the requirements to the adopting parent(s).
b. Application
The adopter(s) will be required to fill and return the application forms. After that the society obtains a social worker who makes an appointment to visit the applicant’s home.
c. Home visit
The society looks into the whereabouts of the adopter(s) to know whether the needs of the child will be met. Some of the things that are checked are:
- The reasons for wanting to adopt.
- The family situation of the adopters.
- Their home area security.
- The adopters’ expectations of the child i.e. age, sex, etc.
The aim of the visit is to get to know the adopter(s) better, financially and emotionally, and determine if the home conditions are suitable for the child’s upkeep. The social worker will make a report on the assessment in the form prescribed under the Schedule to the Adoption Regulations.
d. Application assessment
The adoption society will obtain a medical report on the health of both the child and the adopter in the prescribed forms. Then adoption agency’s case committee will vet the adoption application together with the social worker’s report and the health report of the child and the adopter. The committee might approve, defer or reject the application citing reasons why. If approved, 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.
e. Matching and placement
The agency consults with the adopting parent(s) and arrangement to meet the child is made (introduction and bonding period). If bonding is deemed successful, the child is released to the care of the adopter(s). During placement, which will normally be three months, the issues for evaluation will mostly revolve around whether the adoptive parents are capable of taking on the challenge of raising a child as appropriate and further whether they meet the requisite social parameters.
f. Fostering period
The adopting parent(s) stay with the child for a period of three months. The social worker regularly drops by to check on the relationship between the parent(s) and the child, and reports to the case committee. The social worker also looks at how well the child is adjusting to the new environment. The committee may recommend appropriate action to be taken in the event that the child is not being taken care of properly.
g. Court legal process
The potential adopter makes an application for an adoption order to the Children’s Court, High Court of Kenya. The role of the court is limited to decide on the applicant(s) eligibility to adopt a child based on evidence before it. While pending the hearing and determination of the adoption application, the court may on its own motion or upon the application of the adopter, appoint guardian ad litem for the child. The ability to support and educate the child are examined by the court which may or may not allow the adoption.
The social worker may give an opinion on the capability of the adoptive parent(s). If the court grants the adoption order, the order will be entered by the Registrar General in the Adopted Children Register. However, the court may reject the application, in case of that the adopter may appeal the decision to the Court of Appeal. An Adoption Order is final and the child is in no position to challenge the same once he or she has reached the age of majority.
International (Inter-country) adoptions in Kenya
An inter-country adoption is a process by which an individual can adopt a child from another country and bring the child to your country of residence to live with you permanently.
Duration of the adoption process
The average time for an adoption process takes about 6 months.
Cost of child adoption
The cost of adopting a child in Kenya is pegged on a number of factors, and varies from one adoption society to another depending on their facilitation fees. Also, the cost will depend if you choose to represent yourself in court or hire a lawyer. However, most agencies charge a standard fee of Ksh 12,500 ($12.5). Adoption in Kenya is not about the rich or people with a considerable amount of money, any person even those with low incomes can make an adoption application.
Giving up your child for adoption
Where appropriate as the case may be, the parent or guardian places the child who is to be potentially adopted, at the disposal of a registered adoption society. The parent or guardian is issued with an explanatory memorandum in the prescribed form whereon a certificate of acknowledgement is attached. The parent or guardian must sign and deliver to the society a certificate of acknowledgement in the prescribed form indicating that he/she has read and understood the memorandum. The adoption society thereafter accepts the child.
