Adoptive Parents Are Now Entitled To Parental Leave

Previously, adoptive parents did not enjoy any leave attributed to their change in status as contrasted with birth parents who are statutorily entitled to maternity and paternity leave. In a bid to streamline the issue so as to further enhance the welfare of adopted children pursuant to the Children’s Act, the Employment Act, 2007 was amended to introduce ‘pre-adoptive leave’.

What is pre-adoptive leave?

“Pre-adoptive leave” is leave that is taken by an adoptive parent during the period before conclusion of all the formalities to adopt a child. The Children’s Act provides that before adoption, “a child is to be placed in the continuous care and control of an applicant”. During this period, the adoptive parent gets an opportunity to be acquainted with the child and to engage with the adoption society as well as the courts when being evaluated prior to the issuance of an adoption order. As reiterated in the Constitution and the Children’s Act, the best interests of the child are always the most paramount interest. The law and all stakeholders must therefore work together to accord a suitable environment within which a child can settle and thrive in the adoptive home. The pre-adoptive leave is taken as being a step in this direction as it gives the adoptive parent(s) and the child a better chance at a successful placement as the parent(s) and the child get to connect and bond with the adoptive parent(s) physically, mentally and socially.

How long is pre-adoptive leave?

Adoptive parent(s) are entitled to 1-month pre-adoptive leave, with full pay from the date of the placement of the child. An employee who intends or has made an adoption application is entitled to this leave during the period before conclusion of the adoption formalities. This leave is in addition to the employee’s other leaves, that is: annual leave, sick leave, maternity leave etc) as provided under part V of the Employment Act,2007.

When should an employee apply for pre-adoptive leave?

An employee makes an application for pre-adoptive leave during the adoption process. Once the employee has confirmed the date when the child will be placed under their custody, they should notify the employer in writing of the adoption society’s intention to place the child in their custody at least fourteen (14) days before the placement of the child. The application should be accompanied by a custody agreement between the employee and the adoption society and exit certificate issued by the adoption society.  An exit certificate is a written authority given by a registered adoption society to a prospective adoptive parent to take the child from the custody of the adoption society. It serves as documentation evidencing the intention of the adoption society to place the child in the prospective adoptive parent’s custody.

Who can apply for pre- adoptive Leave?

Part XII of the Children’s Act provides that a child can be adopted by an applicant who has attained the age of 25 years and is at least 21 years older than the child but has not attained the age of 65 years; or is a relative of the child. The foregoing is qualified by Section 186 (4) and (5) of the Children’s Act which 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. Unlike in the case of maternity and paternity leave, it is worth noting that the Act has not clearly indicated whether pre-adoptive leave is to be enjoyed by a male or female employee. The wording of the law implies that this leave can be enjoyed by both male and female employees as the law allows male applicants to adopt albeit subject to various stipulated regulations.  We are eager to see how this section will be applied practically and whether further regulations will be drafted around the same.

Must employers provide for this leave?

Yes. Pre- adoptive leave is an employee’s legal entitlement. Section 26 of the Employment Act provides that the provisions relating to inter alia pre-adoptive leave constitute basic minimum terms and conditions of a contract of service and as such, an employee cannot derogate from the set standard.  Employers are thus required to incorporate this entitlement in their employment contracts and in their human resource policies. As held in ELRC Cause No. 226 of 2011, Jane Nekesa Baraza Vs. Social Service League MP Shah Hospital, a contract of employment cannot take away what the statute has granted.

Conclusion

We encourage all employers to revise their employment contracts to provide for pre-adoptive leave as this is a requirement of the law. At CM Advocates LLP, we offer bespoke world-class legal services concerning all your immigration, labour and employment matters. We are available to help you undertake an audit on your labour practices to ensure that as an employer, your policies, contracts and practices are lawful and legally compliant. We have noted that many employers are left vulnerable to legal suits from current and former employees because of ignorance of the law on this very sensitive area. We therefore endeavor to educate both employers and employees of their rights and obligations under law and under contract. We are practical and innovative in our approach and offer quick turnaround timelines. We will be delighted to receive your feedback and enquiries on this and any other of our articles.Please click here to download the article

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Victorine Rotich- Senior Associate  Esther Munyi- Legal Assistant

Disclaimer

This article is for informational purposes only and should not be construed as legal advice.