How The Children’s Act 2022 Will Affect Your Adoption And Guardianship Plans

The Children’s Act 2022 ushers in an era that 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 through the incorporation of the following amendments: -

1. Establishment of the National Council for Children’s Services-

The Act establishes a Council to be known as the National Council for Children’s Services whose role with regard to adoption is as follows;

• Central authority for the purposes of The Hague Convention on Inter-Country Adoptions.
• Advise the Cabinet Secretary on matters relating to child protection.
• Establish a panel of persons who may be appointed by the court as guardians’ ad litem in matters relating to children including adoption.
• Maintain and update a register of guardians’ ad litem.
• Advise the Cabinet Secretary on matters relating to the formulation of national policy on domestic and inter-county adoptions.
• Accredit and license duly registered adoption and child protection agencies in order to facilitate domestic and inter-country adoptions.
• Establish, update and maintain a database for domestic and inter-country adoptions.
• Certify and declare a child free for adoption.
• Promote cooperation between state agencies, and local and on-state agencies concerned with matters relating to adoption with central adoption authorities in other countries including tracing and repatriation of children in need of care and protection.

Members of this council are to be appointed by the President of the Republic of Kenya

1. Foreign adoption

The Act provides for foreign/Inter-Country adoption which is an adoption whereby: -

• The adopting parent(s) are Kenyan nationals with dual citizenship.
• The adopting parent(s) are foreign nationals whether or not resident in Kenya.
• The adopting parent(s) are not Kenyan nationals but are biologically related to the child.
• The adopting parent(s) were once Kenyan nationals but have lost their nationality by operation of the law of the host country to which the prospective parent(s) have a nationality.

Pre-requisites for Adoption; 

The Act provides for requirements prior to adoption which include: -

• The National Council for Children’s Services is to declare the child free for adoption. (Such declarations were previously done by an Adoption Society.)
• Registered adoption societies are to make a report recommending an adoption order to be made.

Consents that are required for the court to grant an Adoption Order; -

The following consents should be obtained and presented to Court for it to grant an adoption order

• Consent of a parent/guardian of the child or other person who is liable by virtue of any order or agreement to contribute to the maintenance of the child.
• On application of one of the spouses, the consent of the other spouse.
• Consent of a child who has attained 10 years.

Notably, the court will dispense with above consents where;

• The parent/guardian has abandoned, neglected, persistently failed to maintain, or persistently ill-treated the child.
• The person liable by virtue of an order or agreement to contribute to the maintenance of the child, that person has persistently neglected or refused to make a contribution in accordance with the order.
• The person whose consent is required cannot be found or is incapable of giving their consent or has unreasonably withheld their consent.
• Though married, the court is satisfied that the applicant and their spouse have separated or divorced and are living apart and that such separation is likely to be permanent.

Leaving Kenya with a child before the Adoption Order is granted –

Where a court makes an order allowing an applicant to leave the country/Kenyan jurisdiction with a child before the Adoption Order is granted, the court shall make a wardship order in respect of the child and ensure that the applicant executes a security bond with sureties requiring that the child be returned to Kenya by the applicant within such period as may be specified by the court. Persons who without lawful justification fail to return the child whom a wardship order above has been made commits an offence and on conviction is liable to imprisonment for a term not exceeding 3 years or to a fine not exceeding 2 million shillings or both.

Review of Adoption Orders –

The Act provides that the biological parent of a child in respect to whom an adoption order has been granted may apply for review of that order of adoption on the following grounds;

• The child in respect of whom an adoption order has been granted by a court was lost or abducted.
• The biological parent reported to the Secretary and took all measures to trace, to find and to reunite with the child and were not successful.
• It is in the best interest of child to reunite with their biological parent.

In the event the adoption order is reviewed, it may lead to the following: -

• The adoption order may be revoked and custody of the child given to their biological parent.
• Court may award joint custody to a biological parent and an adoptive parent where the child has been in the custody of the adoptive parent(s) for more than 5 years and/or where the child expresses that they would wish to maintain a relationship with the adoptive parent(s)

Inter-Country/Foreign Adoption; -

The Court may make an inter-country adoption order in the following circumstances: -

• Efforts to trace the child’s parents and relatives and unify them have despite state efforts failed.
• All local arrangements for the placement of the child in family-based alternative care have been exhausted and failed.
• The country where the non-citizens’/non-resident adoptive parents ordinarily reside and where they intend to reside with the child immediately after the making of the adoption order will respect and recognize the adoption order and grant resident status to the child.
• The foreign applicants have been authorized and recommended as persons who are fit, including being morally fit and financially capable, to adopt a foreign child by a competent government authority or Court of competent jurisdiction in the country where they intend to reside with the child immediately after the making of the adoption order.

Conditional Adoption Orders

These are adoption orders: -

• Requiring the adopter, by bond or otherwise to make such provision for the child as, in the opinion of the Court, are just and expedient.
• Directing that the child shall not be removed from the jurisdiction of the Court without leave of the Court for such period as the Court may direct.
• Requiring the adopter to accept supervision by, and advice from, an adoption society specified by the Court for such period as the Court may direct.
• Requiring the child to be brought up in accordance with a particular tradition conditional to which the consent was given.
• Requiring the adopter to furnish such security by bond or otherwise as the Court may consider fit for the due performance of any condition that the Court may impose.
• In a case where the adopter is not a resident or citizen of Kenya, requiring the adopter to avail such periodic reports from a Court of competent jurisdiction or state agency responsible for matters relating to adoption in the adopter’s country of residence for such period as the Court may specify.

Quick FAQ’S

1. Can I apply to adopt a child under my foster care?
2. Can I make an adoption application as a sole male person? Yes, only of your blood relatives.
3. What is Kinship adoption? Adoption of a child by a person who is their relative.
4. Can a court make an adoption order in respect of children that had previously been adopted? The Court may make an adoption order or an interim adoption order in respect of a child who has previously been the subject of an adoption order under this Act or any other written law in any Commonwealth jurisdiction.
5. What happens when the court declines to grant an Adoption Order? The court will make such order in respect of parental responsibilities over the child as the Court may consider fit.
6. What are the rights and duties of an adoptive parent(s)? All rights, duties, obligations and liabilities of the biological parents in relation to the future custody, maintenance, and education of the child, including all rights to appoint a guardian, inherit property, and consent or give notice of dissent to marriage.
7. What if a maintenance order had been issued on behalf of the child I see to adopt/have adopted? Maintenance Orders made in respect of a child cease to have effect at the date of the Adoption Order.
8. Can I apply for guardianship of a child? Only Kenyan citizens are allowed to apply for guardianship orders.
9. What is the effect of this law on the Moratorium on Inter-Country & Resident Adoptions issued on 26^th November 2014? The moratorium remains in place.

The Wealth and Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills, and experience on matters of family law including but not limited to children matters spanning domestic and inter-country custodial arrangements, maintenance of the children, litigation, and mediation of these and many other matters affecting the parenting relationship and the rights of the child, Adoptions and Guardianships, Succession & Probate Matters, and Divorce/ Separation and Matrimonial Property matters spanning across the East African Region and other International Regions.  We are practical and innovative in our approach and offer quick turnaround timelines. We will be delighted to receive your feedback, and inquiries and offer our services on this and any other of our practice areas.Please click here to download the article

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Disclaimer

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