The childrens Act is an Act that was enacted in 2008 to protect the rights of children.Below is an outline of the sections in the childrens Act
ARRANGEMENT OF SECTIONS
Part 1 – Preliminary
Section
1. Short title and commencement.
2. Interpretation.
Part II - Safeguards For The Rights And Welfare Of The Child
3. Realization of the rights of the child.
4. Best interests of the child.
5. Non-discrimination.
6. Right to parental care.
7. Right to education.
8. Right to religious education.
9. Right to health care.
10 .Protection from child labour and armed conflict.
1l. Name and nationality.
12. Disabled child.
13. Protection from abuse etc.
14. Protection from harmful cultural rites etc.
15. Protection from sexual exploitation.
16. Protection from drugs.
17. Leisure and recreation.
18. Torture and deprivation of liberty.
19. Right to privacy.
20. Penalties.
21. Duties and responsibilities of a child.
22. Enforcement of rights.
Part III – Parental Resp ons ibility
23. Definition of parental responsibility.
24 Who has parental responsibility.
25 Acquisition of parental responsibility by father.
26 Parental responsibility agreement etc.
27 Transmission of parental responsibility.
28 Extension of responsibility beyond eighteenth birthday.
29 Regulations by Chief Justice.
30. Establishment of National Council for Children’s Services.
31. Composition of Council.
32. Functions of the Council .
33. Power of the Council.
34. Co-option and Committees.
35. Regulations by the Council.
36. Expenses.
37. Appointment of Director, Deputy Directors and Children’s Officers.
38. Functions of Director.
39. Penalty for obstruction.
40. The role of local authorities.
41. Appointed local authorities.
42. Loca1 authority welfare schemes.
43. Delegation of powers and duties by approved local authorities.
44. Delegation of functions of county councils.
45. Delegation to charitable children’s institution.
46. Powers of local authorities to incur expenditure in temporary care.
Part V - Children’s Ins titutions
Rehabilitation Schools and Remand Homes
47. Establishment of rehabilitation schools.
48. Separate sections in the rehabilitation schools.
49. Obligation of managers.
50. Establishment of children’s remand homes.
51. Supervision of rehabilitation schools and children’s remand homes.
52. Leave of absence.
53. Revocation of children’s committal order.
54. Transfers and supervision after release.
55. Treatment of absconders and children of difficult character.
56. Removal to hospital.
57. Authority for confinement in children’s remand homes, rehabilitation
schools and hospital.
Charitable Children’s Institutions
58. Definition of a charitable children’s institution.
59. Exceptions.
60. Proof of registration.
61. Institution set up by a person or unincorporated body of persons.
62. Criteria for approval of programmes
63. Deception of children in a charitable children’s institution.
64. Duty to maintain a child in a charitable children’s institution.
65. Director to monitor progress of children.
66. Appointment and powers of approved officers.
67. Inspection of charitable children’s institutions.
68. Inspection Committees.
69. Duty to notify the Area Advisory Council.
70. Review of programming.
71. Cancellation of a programme.
72. Regulations.
Part VI - Children’s Courts
73. Jurisdiction of Children’s Courts.
74. Sittings of Children’s Courts.
75. Power to clear court.
76. General principles with regard to proceedings in Children’s Court.
77. Lega1 aid.
78. Reports.
79. Appointment of guardian ad litem.
80. Appeals.
Part VII - Custody And Maintenanc e
81. Meaning of custody, care and control.
82. Custody.
83. Principles to be applied in making custody order.
84. Restriction on removal of child where applicant has provided home for
three years.
85. Return of child taken away in breach of section 80.
86. Disputes between joint custodians.
87. Revocation of custody order.
88. Interim Custody orders.
89. Agreement not to be invalid by reason of giving custody to mother.
Maintenance of Children
90. Joint maintenance of children.
91. Power to make maintenance order.
92. Maintenance during matrimonial proceedings.
93. Financial provisions.
94. Financial provisions by step-parents and father of child born out of wedlock.
95. Power to order maintenance monies to be paid to person other than
the applicant.
96. Duration of financial provisions.
97. Interim orders.
98. Other maintenance provisions.
99. Power to impose conditions and to vary order.
100. Power to vary maintenance agreements.
Enforcement of maintenance Orders and contributions Orders
101. Enforcement of maintenance orders and contribution orders.
Part VIII – Guardians hip
102. Appointment of guardian.
103. Rights of surviving parent as to guardianship and power of court.
104. Appointment of testamentary guardian.
105. Appointment of guardian by the court.
106. Guardian’s revocation and disclaimer.
107. Extension of appointment of guardian beyond child’s eighteenth birthday.
108. Dispute between guardians.
109. Powers of guardian.
110. Neglect or misapplication of assets by guardians (of the estate of the child.
111. Offence by guardians of the estate of a child.
112. Ru1es.
Part IX - Judicial Orders For The Protection Of Children
113. Power of court to make orders in certain proceedings.
114. Orders which court may make.
115. Power of arrest.
116. Penalty.
117. Review etc. of order.
Part X - Children In Need Of Care And Protection
118. Jurisdiction of the court.
119. When a child is in need of care and protection.
120. Proceedings in respect of children in need of care and protection.
121. Medical care.
122. Determination as to child’s home etc.
123. Parent or guardian to be heard in any application.
124. Power of director to take over application.
125. Powers of court in respect of children in need of care and protection.
126. Application of trusts for maintenance of children.
127. Penalty for cruelty to or neglect of children.
128. Warrants for search of children.
129. Arrest without warrant.
Supervision and care orders
130. Supervision order.
131. Preliminary inquiries.
132. Care order and grounds thereof,
l33. Arrangements for access to children in care.
134. Contents of care order.
135. Transmission of order.
136. Production of child.
137. Harbouring or concealing a child.
Escapees
138. Escape from institutions etc.
139. Charitable children’s institutions and local authorities.
140. Escape from children’s remand home or rehabilitation school.
141. Assisting escape etc.
142. Production of escaped child.
Miscellaneous Provisions on Protection of Children
143. Presumption and determination of age.
144. Contribution order.
145. International reciprocity.
146. Bonds.
Part XI - Foster Care Placement
147. Conditions for foster care placement.
148. Persons qualified to foster children.
149. Registration for foster care placement.
150. Agreement for maintenance of foster child.
151. Penalty for contravening provisions of this Part.
152. Rules.
153. Amendment of rules
154. Power to make adoption orders.
155. Establishment of Adoption Committee.
Pre-requisites for Adoption
156. Preliminaries
157. Children who may be adopted.
158. Adoption applicants.
159. Power to dispense with consent.
Guardian ad Litem
160. Guardian ad litem for the child.
Interim Orders
161. Interim orders.
International Adoptions
l62. International adoptions.
Powers of the Court on Adoption Application
l63. Powers of the court.
164. Power to appoint guardian.
165. Adoption order in respect of children previously adopted.
166. Parental responsibility when adoption is refused.
167. Appeals.
168. Amendment of orders.
Registration of Adoption Orders
169. Adopted children register.
170. Registration of adoption orders.
Effects of Adoption Orders
171. Rights and duties of parents and capacity to marry.
172. Workmen’s Compensation.
173. Orders and agreements in respect of child born outside marriage.
174. Intestacies, wills and settlements.
175. Provisions supplementary to section 168.
176. Effect of overseas adoption.
Adoption Societies
177. Restriction on making arrangements for adoption.
l78. Information to be confidential.
179. Prohibition of certain payments.
180. Restriction on advertisement.
181. Offences under this Part.
182. Regulations.
183. Rules of court under this Part.
Part XIII - Child Offenders
l84. Jurisdiction of Children’s Court.
l85. Power to remit cases to Children’s Court.
l86. Guarantees to a child accused of an offence.
l87. Consideration of welfare.
l88. Friendly setting of Children’s Court.
189. Words “conviction’’ and ‘’sentence’’ not to be used of child.
190. Restriction on punishment.
191. Methods of dealing with offenders.
192. Mental treatment.
193. Power to order parent to pay fine etc.
194. Proceedings in respect of offences committed by a child.
Part XIV - Misc ellaneous And General Provisions
195. Appeals to the Minister.
196. General penalty.
197. General power to make regulations.
198. Exemption.
199. Grants and expenses of the Minister.
200. Repeals.
Showing posts with label Kenya Children's law. Show all posts
Showing posts with label Kenya Children's law. Show all posts
Kenya Childrens Law: The Childrens Act
The kenya Childrens Act is
ARRANGEMENT OF SECTIONS
Part 1 – Preliminary
Section
1. Short title and commeRealization of the rights of the child.
4. Best interests of the child.
5. Non-discrimination.
6. Right to parental care.
7. Right to education.
8. Right to religious education.
9. Right to health care.
10 .Protection from child labour and armed conflict.
1l. Name and nationality.
12. Disabled child.
13. Protection from abuse
ARRANGEMENT OF SECTIONS
Part 1 – Preliminary
Section
1. Short title and commencement.
2. Interpretation.
Part II - Safeguards For The Rights And Welfare Of The Child
3. Realization of the rights of the child.
4. Best interests of the child.
5. Non-discrimination.
6. Right to parental care.
7. Right to education.
8. Right to religious education.
9. Right to health care.
10 .Protection from child labour and armed conflict.
1l. Name and nationality.
12. Disabled child.
13. Protection from abuse etc.
14. Protection from harmful cultural rites etc.
15. Protection from sexual exploitation.
16. Protection from drugs.
17. Leisure and recreation.
18. Torture and deprivation of liberty.
19. Right to privacy.
20. Penalties.
21. Duties and responsibilities of a child.
22. Enforcement of rights.
Part III – Parental Resp ons ibility
23. Definition of parental responsibility.
24 Who has parental responsibility.
25 Acquisition of parental responsibility by father.
26 Parental responsibility agreement etc.
27 Transmission of parental responsibility.
28 Extension of responsibility beyond eighteenth birthday.
29 Regulations by Chief Justice.
30. Establishment of National Council for Children’s Services.
31. Composition of Council.
32. Functions of the Council .
33. Power of the Council.
34. Co-option and Committees.
35. Regulations by the Council.
36. Expenses.
37. Appointment of Director, Deputy Directors and Children’s Officers.
38. Functions of Director.
39. Penalty for obstruction.
40. The role of local authorities.
41. Appointed local authorities.
42. Loca1 authority welfare schemes.
43. Delegation of powers and duties by approved local authorities.
44. Delegation of functions of county councils.
45. Delegation to charitable children’s institution.
46. Powers of local authorities to incur expenditure in temporary care.
Part V - Children’s Ins titutions
Rehabilitation Schools and Remand Homes
47. Establishment of rehabilitation schools.
48. Separate sections in the rehabilitation schools.
49. Obligation of managers.
50. Establishment of children’s remand homes.
51. Supervision of rehabilitation schools and children’s remand homes.
52. Leave of absence.
53. Revocation of children’s committal order.
54. Transfers and supervision after release.
55. Treatment of absconders and children of difficult character.
56. Removal to hospital.
57. Authority for confinement in children’s remand homes, rehabilitation
schools and hospital.
Charitable Children’s Institutions
58. Definition of a charitable children’s institution.
59. Exceptions.
60. Proof of registration.
61. Institution set up by a person or unincorporated body of persons.
62. Criteria for approval of programmes
63. Deception of children in a charitable children’s institution.
64. Duty to maintain a child in a charitable children’s institution.
65. Director to monitor progress of children.
66. Appointment and powers of approved officers.
67. Inspection of charitable children’s institutions.
68. Inspection Committees.
69. Duty to notify the Area Advisory Council.
70. Review of programming.
71. Cancellation of a programme.
72. Regulations.
Part VI - Children’s Courts
73. Jurisdiction of Children’s Courts.
74. Sittings of Children’s Courts.
75. Power to clear court.
76. General principles with regard to proceedings in Children’s Court.
77. Lega1 aid.
78. Reports.
79. Appointment of guardian ad litem.
80. Appeals.
Part VII - Custody And Maintenanc e
81. Meaning of custody, care and control.
82. Custody.
83. Principles to be applied in making custody order.
84. Restriction on removal of child where applicant has provided home for
three years.
85. Return of child taken away in breach of section 80.
86. Disputes between joint custodians.
87. Revocation of custody order.
88. Interim Custody orders.
89. Agreement not to be invalid by reason of giving custody to mother.
Maintenance of Children
90. Joint maintenance of children.
91. Power to make maintenance order.
92. Maintenance during matrimonial proceedings.
93. Financial provisions.
94. Financial provisions by step-parents and father of child born out of wedlock.
95. Power to order maintenance monies to be paid to person other than
the applicant.
96. Duration of financial provisions.
97. Interim orders.
98. Other maintenance provisions.
99. Power to impose conditions and to vary order.
4. Best interests of the child.
5. Non-discrimination.
6. Right to parental care.
7. Right to education.
8. Right to religious education.
9. Right to health care.
10 .Protection from child labour and armed conflict.
1l. Name and nationality.
12. Disabled child.
13. Protection from abuse
ARRANGEMENT OF SECTIONS
Part 1 – Preliminary
Section
1. Short title and commencement.
2. Interpretation.
Part II - Safeguards For The Rights And Welfare Of The Child
3. Realization of the rights of the child.
4. Best interests of the child.
5. Non-discrimination.
6. Right to parental care.
7. Right to education.
8. Right to religious education.
9. Right to health care.
10 .Protection from child labour and armed conflict.
1l. Name and nationality.
12. Disabled child.
13. Protection from abuse etc.
14. Protection from harmful cultural rites etc.
15. Protection from sexual exploitation.
16. Protection from drugs.
17. Leisure and recreation.
18. Torture and deprivation of liberty.
19. Right to privacy.
20. Penalties.
21. Duties and responsibilities of a child.
22. Enforcement of rights.
Part III – Parental Resp ons ibility
23. Definition of parental responsibility.
24 Who has parental responsibility.
25 Acquisition of parental responsibility by father.
26 Parental responsibility agreement etc.
27 Transmission of parental responsibility.
28 Extension of responsibility beyond eighteenth birthday.
29 Regulations by Chief Justice.
30. Establishment of National Council for Children’s Services.
31. Composition of Council.
32. Functions of the Council .
33. Power of the Council.
34. Co-option and Committees.
35. Regulations by the Council.
36. Expenses.
37. Appointment of Director, Deputy Directors and Children’s Officers.
38. Functions of Director.
39. Penalty for obstruction.
40. The role of local authorities.
41. Appointed local authorities.
42. Loca1 authority welfare schemes.
43. Delegation of powers and duties by approved local authorities.
44. Delegation of functions of county councils.
45. Delegation to charitable children’s institution.
46. Powers of local authorities to incur expenditure in temporary care.
Part V - Children’s Ins titutions
Rehabilitation Schools and Remand Homes
47. Establishment of rehabilitation schools.
48. Separate sections in the rehabilitation schools.
49. Obligation of managers.
50. Establishment of children’s remand homes.
51. Supervision of rehabilitation schools and children’s remand homes.
52. Leave of absence.
53. Revocation of children’s committal order.
54. Transfers and supervision after release.
55. Treatment of absconders and children of difficult character.
56. Removal to hospital.
57. Authority for confinement in children’s remand homes, rehabilitation
schools and hospital.
Charitable Children’s Institutions
58. Definition of a charitable children’s institution.
59. Exceptions.
60. Proof of registration.
61. Institution set up by a person or unincorporated body of persons.
62. Criteria for approval of programmes
63. Deception of children in a charitable children’s institution.
64. Duty to maintain a child in a charitable children’s institution.
65. Director to monitor progress of children.
66. Appointment and powers of approved officers.
67. Inspection of charitable children’s institutions.
68. Inspection Committees.
69. Duty to notify the Area Advisory Council.
70. Review of programming.
71. Cancellation of a programme.
72. Regulations.
Part VI - Children’s Courts
73. Jurisdiction of Children’s Courts.
74. Sittings of Children’s Courts.
75. Power to clear court.
76. General principles with regard to proceedings in Children’s Court.
77. Lega1 aid.
78. Reports.
79. Appointment of guardian ad litem.
80. Appeals.
Part VII - Custody And Maintenanc e
81. Meaning of custody, care and control.
82. Custody.
83. Principles to be applied in making custody order.
84. Restriction on removal of child where applicant has provided home for
three years.
85. Return of child taken away in breach of section 80.
86. Disputes between joint custodians.
87. Revocation of custody order.
88. Interim Custody orders.
89. Agreement not to be invalid by reason of giving custody to mother.
Maintenance of Children
90. Joint maintenance of children.
91. Power to make maintenance order.
92. Maintenance during matrimonial proceedings.
93. Financial provisions.
94. Financial provisions by step-parents and father of child born out of wedlock.
95. Power to order maintenance monies to be paid to person other than
the applicant.
96. Duration of financial provisions.
97. Interim orders.
98. Other maintenance provisions.
99. Power to impose conditions and to vary order.
Kenya Children's law: The rights of children in Kenya
Children's rights under Kenya laws are the human rights of children with particular attention to the rights of special protection and care afforded to minors, including their right to association with both parents, human identity as well as the basic needs for food, universal state-paid education, health care and criminal laws appropriate for the age and development of the child, equal protection of the child's civil rights, and freedom from discrimination on the basis of the child's race, gender, sexual orientation, gender identity, national origin, religion, disability, color, ethnicity, or other characteristics.
Interpretations of children's rights range from allowing children the capacity for autonomous action to the enforcement of children being physically, mentally and emotionally free from abuse, though what constitutes "abuse" is a matter of debate. Other definitions include the rights to care and nurturing."A child is any human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier. According to Cornell University, a child is a person, not a subperson.
The term "child" often, but does not necessarily, mean minor, but can include adult children as well as adult nondependent children. There are no definitions of other terms used to describe young people such as "adolescents", "teenagers," or "youth" in international law,but the children's rights movement is considered distinct from the youth rights movement. The field of children's rights spans the fields of law, politics, religion, and morality.
Children's rights are defined in numerous ways, including a wide spectrum of civil, cultural, economic, social and political rights. Rights tend to be of two general types: those advocating for children as autonomous persons under the law and those placing a claim on society for protection from harms perpetrated on children because of their dependency. These have been labeled as the right of empowerment and as the right to protection.One organisation clasiified Children's rights into three categories:
Scholarly study generally focuses children's rights by identifying individual rights. The following rights "allow children to grow up healthy and free":
Interpretations of children's rights range from allowing children the capacity for autonomous action to the enforcement of children being physically, mentally and emotionally free from abuse, though what constitutes "abuse" is a matter of debate. Other definitions include the rights to care and nurturing."A child is any human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier. According to Cornell University, a child is a person, not a subperson.
The term "child" often, but does not necessarily, mean minor, but can include adult children as well as adult nondependent children. There are no definitions of other terms used to describe young people such as "adolescents", "teenagers," or "youth" in international law,but the children's rights movement is considered distinct from the youth rights movement. The field of children's rights spans the fields of law, politics, religion, and morality.
Types of childrens rights in Kenya
Children have two types of human rights under international human rights law. Firstly, they have the same fundamental general human rights as adults, although some human rights, such as the right to marry, are dormant until they are of age, Secondly, they have special human rights that are necessary to protect them during their minority.General rights operative in childhood include the right to security of the person, to freedom from inhuman, cruel, or degrading treatment, and the right to special protection during childhood.Particular human rights of children include, among other rights, the right to life, the right to a name, the right to express his views in matters concerning the child, the right to freedom of thought, conscience and religion, the right to health care, the right to protection from economic and sexual exploitation, and the right to education.Children's rights are defined in numerous ways, including a wide spectrum of civil, cultural, economic, social and political rights. Rights tend to be of two general types: those advocating for children as autonomous persons under the law and those placing a claim on society for protection from harms perpetrated on children because of their dependency. These have been labeled as the right of empowerment and as the right to protection.One organisation clasiified Children's rights into three categories:
- Provision: Children have the right to an adequate standard of living, health care, education and services, and to play and recreation. These include a balanced diet, a warm bed to sleep in, and access to schooling.
- Protection: Children have the right to protection from abuse, neglect, exploitation and discrimination. This includes the right to safe places for children to play; constructive child rearing behavior, and acknowledgment of the evolving capacities of children.
- Participation: Children have the right to participate in communities and have programs and services for themselves. This includes children's involvement in libraries and community programs, youth voice activities, and involving children as decision-makers.
- Economic, social and cultural rights, related to the conditions necessary to meet basic human needs such as food, shelter, education, health care, and gainful employment. Included are rights to education, adequate housing, food, water, the highest attainable standard of health, the right to work and rights at work, as well as the cultural rights of minorities and indigenous peoples.
- Environmental, cultural and developmental rights, which are sometimes called "third generation rights," and including the right to live in safe and healthy environments and that groups of people have the right to cultural, political, and economic development.
Scholarly study generally focuses children's rights by identifying individual rights. The following rights "allow children to grow up healthy and free":
- Freedom of speech
- Freedom of thought
- Freedom from fear
- Freedom of choice and the right to make decisions
- Ownership over one's body
Physical rights
Newell (1993) argued that corporal punishment violates the human rights of the child and concluded, "...pressure for protection of children's physical integrity should be an integral part of pressure for all children's rights."Kenya children's law: Adoption in Kenya
Adoption under Kenya law is the process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents. Unlike guardianship or other systems designed for the care of the young, adoption is
intended to effect a permanent change in status and as such requires
societal recognition, either through legal or religious sanction.
Adoption legally terminates the natural bond between a child and its natural parents and substitutes these parents with adoptive parents, creating a permanent relationship. This is done through the Kenya Adoption Act (Cap. 143) which provides for the making and registration of adoption arrangements made by adoption societies and other persons concerned with the adoption of children and the restriction of pecuniary transactions in relation to adoption matters. An adoption order may be made only in respect of a person who is aged 18 or below, is not married and has not at any time been married.
Section 4 of the Kenya Adoption act lists three categories of persons who obtain an adoption order:
• persons who have attained 25 years of age and are at least 21 years older than the child to be adopted
• a relative of the child who is at least 21 years of age
• the mother or father of a child who has been born out of wedlock and whose parents are not mar - ried to each other.
The following restrictions also apply:
• A sole male applicant may obtain an adoption order only in special and exceptional circumstanc - es.
• A spouse in a polygamous marriage may obtain an adoption order only in special and exceptional circumstances.
• An applicant who is of a different race to the child may obtain an adoption order only in special and exceptional circumstances.
• An applicant who does not intend to reside with the child in Kenya may be granted an adoption order only in special and exceptional circumstances.
The Adoption Act should be amended as follows:
• Adoptions at early ages, for example between one and five years, should be preferred. Older chil - dren should only be adopted in exceptional circumstances at the court's discretion. The process of adjusting to different home conditions is more exacting on older children.
• The age of adopting parents should be changed to between 28 and 50 years for women and 28 and 60 years for men, considering the nurturing required of such parents. Health conditions should also guide the court alongside these age requirements.
• Race as a factor in granting or refusing an adoption order should be repealed. Caution should, however, be exercised in granting adoption orders where the adopting parent and the child belong to different races.
• Intending adopters should be required by law to produce evidence of economic standing.
• The personal character of a prospective adopter should be a relevant factor in making an adoption order.
• The age and sex of the child should be important factors for consideration where a single man or a woman apply for an adoption order. 7
• International adoptions involving Kenyan chidren should be subject to the restrictions in Section 4 of the act along with all the above conditions. In addition, in international adoptions: A single man should not be granted an adoption order. If the applicant is married, the marriage must be a heterogeneous union. The applicant(s) must obtain authority from a recognised juvenile court in their home country The applicant(s) must obtain immigration authority from their home country respecting the adopted child. The applicant(s) must produce a security bond from their home country for the safety of an adopted child. The applicant(s) must produce a certificate of moral fitness. The applicant(s) must produce a certificate of financial fitness. The applicant(s) must appear before a High Court judge for a preliminary hearing before proceeding to an adoption society. The applicant(s), if successful at the preliminary hearing, should be required to remain in Kenya for at least three months, during which an interim order is in force and a Kenyan agency is to be appointed guardian ad litem.
The guardian ad litem must be able to visit the child freely and make frank reports in court. The court should have .the power to reject any preliminary application summarily; the power to act on its own motion between the preliminary hearing and the final order, the power to rescind any order made in the mean - time and the power to impose penalties in accordance with the law (which should provide the same).
• Any appeals in such cases should be heard under a certificate of urgency.
• A register of international adoption should be kept by the public office in charge of adoptions.
• Kenyans adopting abroad and complying with the laws of the country in question should have such adoptions automatically registered in Kenya and governed by Kenyan law . These suggestions are based on the fact that while international adoptions are not undesirable, it is advisable to keep a tight rein on them given the fact that the children adopted will be out of our courts' jurisdiction. For adoption of children born out of wedlock where the father has not acknowledged paternity, the law should require that the consent of the unwed mother (and that of her parents if she is under 18) is sufficient consent. However, the court should have discretion to require the consent of the extended family.
The adoption process should be streamlined by establishing a Council of Adoption to:
• formulate policy in matters of adoption
• liaise between adoption societies, government and non-governmental or ganisations
• propose names of officers who may serve as guardians ad litem
• monitor adoption activities in the country • expedite all documentation required for the adoption process
Forms of adoption
Contemporary adoption practices can be open or closed.- Open adoption allows identifying information to be communicated between adoptive and biological parents and, perhaps, interaction between kin and the adopted person. Rarely, it is the outgrowth of laws that maintain an adoptee's right to unaltered birth certificates and/or adoption records, but such access is not universal.Open adoption can be an informal arrangement subject to termination by adoptive parents who have sole authority over the child. In some jurisdictions, the biological and adoptive parents may enter into a legally enforceable and binding agreement concerning visitation, exchange of information, or other interaction regarding the child.
- The practice of closed adoption (aka confidential or secret adoption), which has not been the norm for most of modern history,seals all identifying information, maintaining it as secret and preventing disclosure of the adoptive parents', biological kins', and adoptees' identities. Nevertheless, closed adoption may allow the transmittal of non-identifying information such as medical history and religious and ethnic background.Closed adoption, lack of medical history and the broken thread of family continuity can have a detrimental impact on an adoptee's psychological and physical health. The lack of openness, honesty and family connections in adoption can be detrimental to the psychological well being of adoptees and of their descendants.
Adoption legally terminates the natural bond between a child and its natural parents and substitutes these parents with adoptive parents, creating a permanent relationship. This is done through the Kenya Adoption Act (Cap. 143) which provides for the making and registration of adoption arrangements made by adoption societies and other persons concerned with the adoption of children and the restriction of pecuniary transactions in relation to adoption matters. An adoption order may be made only in respect of a person who is aged 18 or below, is not married and has not at any time been married.
Section 4 of the Kenya Adoption act lists three categories of persons who obtain an adoption order:
• persons who have attained 25 years of age and are at least 21 years older than the child to be adopted
• a relative of the child who is at least 21 years of age
• the mother or father of a child who has been born out of wedlock and whose parents are not mar - ried to each other.
The following restrictions also apply:
• A sole male applicant may obtain an adoption order only in special and exceptional circumstanc - es.
• A spouse in a polygamous marriage may obtain an adoption order only in special and exceptional circumstances.
• An applicant who is of a different race to the child may obtain an adoption order only in special and exceptional circumstances.
• An applicant who does not intend to reside with the child in Kenya may be granted an adoption order only in special and exceptional circumstances.
The Adoption Act should be amended as follows:
• Adoptions at early ages, for example between one and five years, should be preferred. Older chil - dren should only be adopted in exceptional circumstances at the court's discretion. The process of adjusting to different home conditions is more exacting on older children.
• The age of adopting parents should be changed to between 28 and 50 years for women and 28 and 60 years for men, considering the nurturing required of such parents. Health conditions should also guide the court alongside these age requirements.
• Race as a factor in granting or refusing an adoption order should be repealed. Caution should, however, be exercised in granting adoption orders where the adopting parent and the child belong to different races.
• Intending adopters should be required by law to produce evidence of economic standing.
• The personal character of a prospective adopter should be a relevant factor in making an adoption order.
• The age and sex of the child should be important factors for consideration where a single man or a woman apply for an adoption order. 7
• International adoptions involving Kenyan chidren should be subject to the restrictions in Section 4 of the act along with all the above conditions. In addition, in international adoptions: A single man should not be granted an adoption order. If the applicant is married, the marriage must be a heterogeneous union. The applicant(s) must obtain authority from a recognised juvenile court in their home country The applicant(s) must obtain immigration authority from their home country respecting the adopted child. The applicant(s) must produce a security bond from their home country for the safety of an adopted child. The applicant(s) must produce a certificate of moral fitness. The applicant(s) must produce a certificate of financial fitness. The applicant(s) must appear before a High Court judge for a preliminary hearing before proceeding to an adoption society. The applicant(s), if successful at the preliminary hearing, should be required to remain in Kenya for at least three months, during which an interim order is in force and a Kenyan agency is to be appointed guardian ad litem.
The guardian ad litem must be able to visit the child freely and make frank reports in court. The court should have .the power to reject any preliminary application summarily; the power to act on its own motion between the preliminary hearing and the final order, the power to rescind any order made in the mean - time and the power to impose penalties in accordance with the law (which should provide the same).
• Any appeals in such cases should be heard under a certificate of urgency.
• A register of international adoption should be kept by the public office in charge of adoptions.
• Kenyans adopting abroad and complying with the laws of the country in question should have such adoptions automatically registered in Kenya and governed by Kenyan law . These suggestions are based on the fact that while international adoptions are not undesirable, it is advisable to keep a tight rein on them given the fact that the children adopted will be out of our courts' jurisdiction. For adoption of children born out of wedlock where the father has not acknowledged paternity, the law should require that the consent of the unwed mother (and that of her parents if she is under 18) is sufficient consent. However, the court should have discretion to require the consent of the extended family.
The adoption process should be streamlined by establishing a Council of Adoption to:
• formulate policy in matters of adoption
• liaise between adoption societies, government and non-governmental or ganisations
• propose names of officers who may serve as guardians ad litem
• monitor adoption activities in the country • expedite all documentation required for the adoption process
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