SAVE THAT CHILD…. WHY KENYANS SHOULD ADOPT A CHILD TODAY

By CHRISTINE KIPSANG

One evening, I asked my daughter what comes to mind when you hear the word adoption and without any hesitation she answered that it is process in person or family is looking to have orphan child without a home and offering the child a home. As a bonus answer she  added based on previous interactions in college her classmates seem to be open to adoption to give a child a home though for her she  has not given it a thought, because it is not something to think about it right now.

Further from informal discussions with members of public especially on social media it emerged there exists some common myths about adoption and which I can summarize them as follows.

  1. adoption process is an exchange of a child and money whereby you purchase of a child which is not your child from a poor single parent or poor parents by a rich individual or couple.
  2. Adoption as a procedure is too complicated to get a child to your home.
  3. Adoption is clouded in mystery.
  4. Adoption is purely child trafficking and should be discouraged.
  5. Adoption process is for the child-less couple.
  6. Adoption is for rich people only.
  7. Adoption is evil.
  8. Adoption is ungodly.
  9. You can only adopt a girl child.
  10. Adopting a child will bring a curse to the family.
  11. Adopted children are rude generally.
  12. Adoption is for those children found in charitable children institutions
  13. Finally, adoption process is for unwanted children only.

Thus,  I would argue that due to limited knowledge on adoption very few people understand this process and it is important to analyze the adoption process and thus pay a closer look at the legal aspects of the adoption process to understand the process. According to Black’s Law Dictionary, adoption is the “statutory process of terminating a child’s legal rights and duties toward the natural parents and substituting similar rights and duties toward adoptive parents. This entails following the governing law relating to adoption in-order to avoid short cuts or incomplete procedure when handling adoption.

Thus, to adopt is legally take (another’s child) and bring it up as one’s own. Thus adoption being a  legal process by which a child becomes the child of persons other than his/her natural or biological parents we need to create awareness for Kenyans who qualify to adopt children in Kenya through what is known as local adoption process because there are many children who need to be adopted and there are many potential adopters who may want to use this method to increase their family sizes.

The Constitution of Kenya 2010, Article 45 asserts that the family is the natural and fundamental unit of society and the necessary basis of social order and shall enjoy the recognition and protection of the State. When a child is legally adopted the adopter or adopters become the child’s parent(s) and the family size is enlarged. This means the child  is the central player in the adoption process  and the same Constitution provides for children rights under Article 53, that every child has the right to a name and nationality from birth, to free and compulsory basic education, to basic nutrition, shelter and health care, to be protected from abuse, neglect, harmful cultural practices, all forms of   violence, inhuman treatment and punishment, and hazardous or exploitative labour. This calls for anybody dealing with a child to understand that children rights must be respected by all in the society in-order to have functional families in the country.

In 2001, the Children Act Legal notice no.8 of 2001 was enacted whose preamble states that an Act of Parliament to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children; to make provision for the administration of children’s institutions; to give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes..

We, therefore, have adequate legal framework to deal with adoption in Kenya  though the Children Act is yet to be amended to bring it in line with Constitution of Kenya ,2010.

There are varied reasons as there are the number of applicants in adoption matters that are filed in court and no one case is like the other and the list hereinbelow is far from being exhaustive.

  1. A relative may wish to adopt a child of a family member in cases where the child or children are orphaned at a young age what is commonly known as Kin or Family adoption.
  2. Having biological children of one gender and wishing to adopt the other gender.
  3. Having no child and seeking to have a child carryon your name and inherit your wealth.
  4. Praying for a child and getting the answer through adopting a homeless child who may have suffered hard abandonment (e.g. being left on their own in a pit latrine ) or soft abandonment (being left at public bus stage or hospital bed unattended).
  5. On Medical grounds such as having overgrown fibroids or endometriosis.
  6. Divorced person having been reject by a spouse may opt to adopt and start a family on their own.
  7. Inability to carry a pregnancy to term due to multiple miscarriages.
  8. Having premature menopause at an early age.
  9. Victims of road traffic accidents which results to permanent injury to the reproductive organs or system.
  10. Sickness leading to complete removal of Uterus
  11. Having blocked fallopian tubes.
  12. Men with Low sperm count
  13. Infertility
  14. Being born with malfunctioning reproductive organ
  15. Having no uterus or no ovulation at all.

Now, turning to the requirements of adoption, let us start with child then look at the Applicant(s) in order to demystify the above stated myths especially the notion that adoption is complicated and may only be undertaken by chosen few.

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 provided  that no application for an adoption order, shall be made in respect of a child unless the child   concerned has been in the continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the filing of the application and both the child and the applicant or applicants, as the case may be evaluated and assessed by a registered adoption society in Kenya. Any person who contravenes this requirement shall be guilty of an offence and liable to imprisonment for a term not exceeding one year or to a fine not exceeding twenty thousand shillings or to both such imprisonment and such fine.

Once you apply in court the application is considered by the Family Court Judge. The 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; as attained the age of twenty-five years and is at least twenty-one years older than the child but has not attained the age of sixty-five years or is a relative of the child or is the mother or father of the child.

Contrary to many beliefs, an adoption order shall not be made in favour of the following persons unless the court is satisfied that there are special circumstances that justify the making of an adoption order; 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 sixty-five years, a sole foreign female applicant.

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 Cap 248, has been charged and convicted by a court of competent jurisdiction for any of the offences set out in the Third Schedule to this Act or similar offences, is a homosexual, in the case of joint applicants if they are not married to each other and finally  is a sole foreign male applicant:

There are situation in which the court may refuse to make an adoption order in respect of any person or persons if it is satisfied for any reason that it would not be in the best interests of the welfare of the child to do so.

The adoption procedure takes a duration similar to pregnant mother takes from birth to delivery of a child however the process involves many stakeholders and thus besides the child and the applicant(s) and  depending on whether it is a family adoption or adoption from a child matched with an applicant from a charitable children institution the following service provider and professional are involved in the adoption process.

  1. Good Samaritan
  2. Police
  3. Biological parents or parent
  4. Children home
  5. Children department
  6. Adoption agency /agencies
  7. Court clerk
  8. Family Court judge
  9. Court registry staff
  10. Guardian Ad Litem
  11. Employer
  12. Friends
  13. Family members
  14. Church
  15. Advocate of the High Court of Kenya
  16.  School Community
  17. Immigration Department
  18. Births and Deaths Registry
  19. Neighbours
  20. Legal guardian
  21. National Adoption Committee
  22. Case Committee
  23. Social workers
  24. Medical Practitioners,
  25. Attorney General Chambers
  26. Ministry of foreign affairs

These stakeholders provide checks and balances in adoption to ensure that the best interests of the child or children is observed at all time and it is therefore rarely for an applicant to get an application for adoption rejected in court.

In Conclusion, Adoption is a legitimate legal process in Kenya  and  given we have law specifically dealing with all children in Kenya, adoption is a choice you can take and follow in-order to start a family or allow a fellow Kenyan increase their family size. There are many children (around 10,000) in charitable children institutions and it is necessary they are adopted so that they grow in a family home as opposed to an institution. There are many teenage pregnancies right now in the country and many young mothers may be tempted to commit illegal abortions not knowing there is an option in adoption locally. The Chiefs and families need to be sensitized about adoption. This will also minimize the abortion cases in Kenya and then Kenyans will increase by adopting children in Kenya.

 

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CHRISTINE MWIKALI KIPSANG

MANAGING PARTNER

CHRISTINE KIPSANG & CO. ADVOCATES

VICE CHAIRMAN – MOMBASA LAW SOCIETY