Legal Aid: I want to adopt a child who lives with me

Dear Eric,

If someone wants to adopt a child already living with them, do they have to get legal consent from the biological parents?

Dear Reader,

The silent conversation that emerges in reading the text of this question is your knowledge about recognisable parenthood. It is not clear whether you are man or woman, nonetheless, the question you pose presents our readers and those who seek legal knowledge on parenting with two concepts of parentage; biological and non-biological. It should be known that biological, similarly referred to as natural parenthood has express legal recognition and is only contestable if a party questions paternity that departs from genetic configuration of the child to both or either of the parents. Non-biological, otherwise known as adopted parenthood must be sanctioned by law.

To make this discussion precise, we will first define adoption, seen as the legal process by which a child becomes the child of another or other persons other than his or her natural or biological parents. When this happens, an automatic and permanent transfer of rights and responsibilities shifts from the biological parents to the adopters.

Four assumptions

To contextualise the situation you have described, we will tether our response along four assumptions; that you wish to adopt a child unrelated to both you and your spouse but domiciled in your house: you seek to adopt a child who is related to you or your spouse: that the child in your custody has traceable biological parents or guardian: and that the legal consent you seek is for the best interests of a child older than six weeks but less eighteen years as a principle captured by section 4 (2) and (3) of the Children’s Act in pursuant to Article 53 (1-e) of the Constitution. Equally, the difference in years between you and the child sought for adoption is 21 years on the low.  

Scenario one: if the child you seek to adopt is unrelated to either you or your spouse, then a consent will be required from the biological parents or guardians if traceable. Though this is limited to the extent that such biological parents are not deemed to have abandoned the child and are not permanently separated. Since you have been living with the child, the law on children at section 157 (1) strengthens your desire by directing that this live-in situation should be at the minimum of three months. Nonetheless, should the child be 14 years upwards, then their consent will be necessary for the completion of the adoption process.

Scenario two: if the child you seek to adopt is son or daughter to you or your spouse, then consent is required from the other biological parent outside this union. This is referred to as kinship adoption. However, this consent may be waived, if the parent seeking adoption can prove before the High Court consistent non-concern of the other on parenting obligations. In the same context, any 14-year-old and above this age has to consent.   

Other than what has been mentioned previously in this text, one needs to know that adoption processes require the would-be adopter or adopters to be of sound mind without history of insanity in accordance with the Mental Health Act, aged 25 and not exceeding sixty-five. If the applicants are a couple then their marriage should have been effectively existing for three years.  Important to know is that the law is structured to prohibit any single man seeking to adopt a baby girl, similarly any single woman seeking to adopt a baby boy, neither does it allow an adoption order to be granted to applicants staying together, yet unmarried. In a similar fashion, the law forbids homosexuals to adopt a child in Kenya, besides any applicant who has been convicted of crimes such as defilement, rape, assault, causing bodily harm, living on earnings of prostitution or runs and manages a brothel among other child welfare threatening offenses.

Therefore, for you and any other person out there in similar situation, the aforementioned must be met. Further, without rubbishing the fact of staying with the child within the minimum time required by law, the court may direct that certain issues be clarified in the best interests of the child. Through a social worker or children officer, the court may seek to get insights on the quality of the applicants’ home and environment, in which the to-be-adopted child will reside. Second, the court may also ascertain the capacity of the adopters to educate the child they seek to adopt: and third, the court may want to know  the adopters’ ability to effectively dispense off the duties of parents that include feeding, sheltering and clothing the child, as well offer reliable health care. While it is advantageous you stay with child, the law may seek to determine your other capacities to protect the child from likely harm.