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September 23, 2018

Who can legally adopt children in Kenya?

Adoption is the legal process by which an adult gets the authority to act as a parent of a child. An adoption order donates or grants the adopting parent all the duties and responsibilities of a parent upon that child, as though they were the biological parent.

 Adoption has to go through the courts. It is not adversarial, or does not involve legal battles in the court room. It is a process that involves the court.

The judges play a very important role in the exercise. They at all times ensure that the process is legally sound and that the adoption is one that promotes the best interest of the child. This way the children are always guaranteed safety from the jaws of child traffickers.

 The law that regulates all adoptions in Kenya is the Children's Act. Not everybody can adopt and not all children can be adopted.

The statute provides for the requirements that make a person eligible to adopt, and the requirements of a child to be adopted. Section 156 (1) provides that no arrangement shall be commenced for the adoption of a child unless the child is at least six weeks old and has been declared free for adoption by a registered adoption society in accordance with the rules prescribed. An adoption procedure that is initiated in contravention of this provision cannot succeed in the court.

 Section 158 (1) of the Act sets out the list of persons who qualify to make an application to adopt. It provides that an adoption order may be made upon the application of a sole applicant or jointly by two spouses where the applicant or at least one of the joint applicants 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 or is the mother or father of the child.

 The law prohibits certain people from adopting children. Section 158 provides that an adoption order shall not be made if the applicant or, in the case of joint applicants, both or any of them, is not of sound mind within the meaning of the Mental Health Act, has been charged and convicted by a court of competent jurisdiction for or any of the offences set out in the Third Schedule to this Act or similar offences or is a homosexual.

In the case of joint applicants, they are not allowed to adopt if they are not married to each other. A sole foreign male applicant is also barred from adopting Kenyan children.

 The Children's Act provides that adoption orders should not be made in favour of certain persons, unless under special circumstances those justify the order being granted.

This people include a sole male applicant in respect of a female child, a sole female applicant in respect of a male child, an applicant or joint applicants who has or both have attained the age of 65 years or a sole foreign female applicant.

 These provisions have made it difficult for single parents to adopt children, unless the court is of the view that a special circumstance does indeed exist.

The adoption committee established in the Children's Act has formulated guidelines to set out the special circumstances for sole applicants for adoption. They include, but are not limited to:-

 1. Whether the child is a relative.

 2. Whether the child has special needs and the applicant is willing and has capacity to take care of the child.

 3. Whether the applicant has adopted or has another biological child or children over whom she is willingly exercising parental responsibility.

 4. Whether the child to be adopted has a sibling who is also being adopted by the applicant.

 5. Whether the applicant is the only person available to adopt the child.

 6. Whether the applicant is the legal guardian of the child or children appointed by will or in adoption proceedings and the parents die or become permanently incapacitated.

The circumstances can be different depending on each set of facts and it will vary from case to case. The applicant must persuade the court that it is in the best interest of the child that the adoption orders are issued in their favour, since the courts primary concern is the best interest of the child.

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