The Regulations seek to provide the procedure for undertaking local adoption,
kinship adoption, foreign adoption and inter-country adoptions as provided under the Children Act 2022.
| REGULATION NO. | CONTENTS OF THE REGULATION | OUR COMMENTS |
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| Regulation 2 Interpretation | "Act” means the Children Act, 2022 | We propose amendment of this definition to “Children Act, Cap 141 Laws of Kenya” in line with the 24th Annual Supplement Legal Notice No. 221 of 2023. |
“adoption placement” means the placement of a child with an approved applicant for the purposes of adoption of the child by the approved applicant. | Adoption placement provides a child with a permanent home, offering a sense of stability, security and belonging. This stability is crucial for a child’s emotional and psychological development. |
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“adoption society” means a duly registered society accredited and licensed pursuant to section 208(5) of the Act. | Adoption societies are required to operate within the framework of the Act. This ensures that all adoptions are carried out legally, reducing the risk of illegal adoptions, trafficking or exploitation of children. Secondly, registered adoption societies follow strict ethical guidelines that prioritize the welfare and best interests of the child. This helps prevent unethical practices, such as coercion of birth parents or misleading prospective adoptive parents. |
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“child” has the meaning assigned to it under Article 260 of the Constitution. | This definition seeks to align the Regulations with the provisions of article 260 of the Constitution. |
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Regulation 3 Objects and principles of these Regulations | The objects of these Regulations is to: a. provide the procedure for the registration of adoption societies, agencies, persons and associations; and b. guide on the procedure for undertaking local adoption, kinship adoption, foreign adoption and inter-country adoptions as provided for under the Act. The implementation of these Regulations shall be guided by the following principles: a. ensuring that the best interests of the child are upheld; b. promoting the placement of the child in their own social-cultural environment; and c. confidentiality of all adoption proceedings. | With clear guidelines for various types of adoptions (local, kinship, foreign, and inter-country), the Regulations help ensure consistency in how different adoption cases are handled, regardless of the specific circumstances. Secondly, the primary principle guiding the regulations is ensuring that the best interests of the child are upheld. This child-centric focus ensures that every decision made during the adoption process prioritizes the safety, welfare and overall well-being of the child. Thirdly, the emphasis on the confidentiality of all adoption proceedings helps protect the privacy of the child, the birth parents and the adoptive parents. This is crucial for maintaining trust and ensuring that sensitive information is not disclosed without proper consent. |
Regulation 4 Adoption of children with special needs | The process of adoption of children with special needs shall be conducted as a matter of priority by the adoption societies and the Council from the date on which such children are declared legally free for adoption by the Council. When processing the adoption of children with special needs, the adoption societies, Council and any person involved shall ensure that the prospective adoptive parents are notified of the special needs of the child and are capable and willing to provide the care and attention required by the child. | By making the adoption of children with special needs a priority, it ensures that vulnerable children are given attention and care. This helps prevent vulnerable children from being overlooked in the adoption process. By matching children with parents who are prepared and able to handle their specific needs, the likelihood of successful and stable adoptions increases, providing a better environment for the child's growth and development. |
PART II-REGISTRATION OF ADOPTION SOCIETIES | ||
Registration | ||
Regulation 5 Application for registration of an adoption society | Pursuant to section 208 of the Act, an application for registration as an adoption society shall be made to the Secretary in Form CAR1 set out in the First Schedule and accompanied by: a. the applicable fee set out in the Schedule; b. a certificate of registration as legal entity issued at least twelve months prior to the making of the application for registration; c. certified copies of certificates academic and professional qualifications of the directors of legal entity making the application; d. a written description of the applicant’s proposed programmes and procedures, including an explanation of the applicant’s policy regarding: i. assessment of persons who apply for an adoption; ii. assessment of persons who wish to place a child for adoption through the applicant; iii. provision of counselling services for persons who apply for adoption and for adoptive parents; iv. provision of counselling services for persons who wish to place a child, or who have placed a child, for adoption through the applicant; and v. record keeping and storage of records; e. audited financial accounts of the applicant for at least twelve months prior to the submission of the application for registration; and f. a written description of the applicant’s registered office and physical location of its principal place of operation. An application under this regulation may be submitted in such other formats as the Secretary may specify from time to time. Within thirty days of receipt of the application under sub-regulation (1), the Secretary: a. shall review the application and the accompanying documents to determine if they meet the qualifications for registration; and b. may assess the applicant’s principal place of operation to determine if it meets the requirements for registration under this regulation and prepare a report of the assessment. Within thirty days of receipt of the application under sub-regulation (1), the Secretary shall review the application and if satisfied, transmit the application and the accompanying documents to the Council for determination in accordance with section 208(3) of the Act. Upon receipt of the application and documents under sub-regulation (3), the Council shall determine the application taking into consideration: a. the capacity of the applicant to carry out adoption arrangements in a child friendly environment; b. the outcome of any assessment undertaken by Secretary in reviewing the application; c. the interest of the public on the approval registration of the adoption society; and d. any other relevant consideration. Where, pursuant to section 208(3) of the Act, the Council: a. approves an application, it shall issue a certificate of registration to a successful applicant in form CAR 2 set out in the First Schedule; b. rejects the application, it shall, in writing and through the Secretary, notify the applicant of the decision, within fourteen days of the determination, indicating the reasons thereof. The provision of section 208(6) shall apply to future applications for registration by the applicant. A person aggrieved by the rejection of their application under sub regulation (5) may appeal to the Cabinet Secretary: a. in form CAR 3 set out in the First Schedule; b. within thirty days of the receipt of the notification of the refusal of the application. | For sub-regulation (1)(a), we propose the addition of the word “Second” immediately before the word “Schedule”. The rationale for this proposal is that the applicable fees have been listed in the Second Schedule. Secondly, we propose the addition of timelines in sub-regulation (4). This proposal ensures that the application form is reviewed by the Council within a prescribed period without delays. |
Regulation 6 Validity, transferability and display of certificate of registration | A certificate of registration of an adoption society shall be valid for the period specified under section 208(6) of the Act. A certificate of registration of an adoption society issued under these Regulations shall not be transferable. A certificate of registration of an adoption society shall be maintained and displayed within the premises of operation of the adoption society in respect of which the certificate is issued. | For sub-regulation (2), non-transferability means that each adoption society is held individually accountable for its operations, practices and adherence to the Regulations. This prevents an adoption society from bypassing scrutiny or regulatory requirements by transferring their registration to another entity. The addition of sub-regulation (3) has the following benefits: a. displaying a certificate of registration prominently within the adoption society’s premises provides assurance that the organization is officially recognized and legally authorized to operate. This transparency fosters trust in the adoption process; and b. a visible certificate of registration indicates that the adoption society meets the necessary legal and regulatory requirements. It helps build credibility and reassures those involved that they are dealing with a legitimate organization. |
Regulation 7 Renewal of registration | Pursuant to section 208(6) of the Act, an application for renewal of registration as an adoption society shall be made to the Council: a. at least sixty days before the date of the expiry of certificate of registration in respect of which the application is made; b. in form CAR 4 set out in First Schedule; c. accompanied by the fees set out in the Second Schedule; d. accompanied by a detailed statement of any changes in the information given in the application for the initial registration, or since the date of the last review of registration, as the case may be. An application under this regulation shall be processed and determined in the manner specified under regulation 4. In considering an application under this regulation, the Council may require: a. the Secretary to undertake an assessment of the applicant’s principal place of operation in the manner set out under regulation 4(3); b. the adoption society to submit a detailed statement of any changes to management or operations of the adoption society. | For sub-regulation (2), we propose the deletion of the words “regulation 4” and replacing it with the words “regulation 5”. Regulation 4 contains provisions on adoption of children with special needs. On the other hand, regulation 5 contains provisions on the registration process of an adoption society. |
Regulation 8 General obligations on registration | Upon registration under these Regulations, the adoption society shall constitute a case committee: a. consisting of not less than three and not more than five persons, one of whom shall be a trained social worker and another to be a member of the community where the society is domiciled; b. to consider as to whether a child should be placed for adoption in any case being considered by the adoption society; c. to match children who been declared free for adoption with prospective adoptive parents. An adoption society shall: a. have duly qualified staff undertaking the operations of the adoption society which shall include: i. an administrator with knowledge and experience in matters relating to children; ii. a social worker with at least a diploma in social work from a learning institution recognised in Kenya; b. have access to the services of a registered medical practitioner; and c. uphold the objects and standards of the Act relating to upholding and safeguarding the best interests of the child. | For sub-regulation (1)(a), we propose that the case committee has an odd number of members i.e., either three or five members. When there’s an even number of members who can vote, there’s a greater risk of deadlocks. This makes it difficult for the case committee to make decisions, resolve conflicts or move forward with its agenda. An odd number ensures that there will always be a majority decision. For sub-regulations (1) and (2), we propose that members and staff of the case committee are appointed through a fair, transparent and competitive process. This has the following benefits: a. a fair, transparent and competitive appointment process ensures that candidates are evaluated based on their qualifications, skills and experience. This helps to attract and select the most suitable individual, contributing to the overall effectiveness and efficiency of the case committee; and b. this proposal ensures that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. |
Regulation 9 Care and supervision | Pursuant to section 210(h) of the Act, an adoption society shall, in consultation with the Secretary, make adequate arrangements for the care and supervision of children who have been placed by their parents or guardians in the care of the adoption society pending their adoption. An adoption society shall, at least once in every three months in each calendar year, prepare a report on every child who is available for adoption but is not living under the direct control of the adoption society and submit the reports to the Secretary: Provided that the reports shall be prepared until the child is adopted, or the Secretary otherwise directs. | This clause ensures that children are placed in safe and secure environments while they await adoption. This reduces the risk of harm, abuse, neglect or exploitation. Secondly, proper care arrangements often include access to education and learning opportunities, which support the child’s cognitive development and helps maintain a sense of normalcy. Further, proper care arrangements also include access to necessary medical care. This helps to address healthcare needs and any special medical conditions that the children may have. |
Regulation 10 Annual report | Within three months after the end of each calendar year, an adoption society shall prepare annual report in form CAR 5 set out in the First Schedule and submit the report to the Secretary and the Council. | Submitting an annual report fosters transparency, allowing the Council to understand the adoption society's activities, outcomes and adherence to the Regulations. This transparency builds trust and confidence in the adoption process. Secondly, the submission of annual reports allows the Council and Secretary to monitor the activities and performance of adoption societies regularly. This oversight helps identify any potential issues, gaps or areas of concern that may require intervention or corrective action. |
PART III-ADOPTION PROCEDURES | ||
Processing of applications | ||
Regulation 11 Restriction on adoption arrangements | Pursuant to section 185 of the Act, no person shall commence any arrangements for the adoption of a child unless the Council has, in writing, declared the child free for adoption. Adoption arrangement shall be undertaken in accordance with the Act and the Fifth schedule to these Regulations. | For sub-regulation (2), we propose that the Fifth Schedule is added to the Regulations. The Regulations has four schedules. This proposal enhances clarity and completeness by removing the ambiguity present in this regulation. |
Regulation 12 Adoption placement by parent or guardian | Where the parent or guardian offers to place a child with a registered adoption society for adoption, the adoption society shall: a. furnish an explanatory memorandum to the parent or guardian in the form set out in the First Schedule and explain to the parent or guardian the details contained therein; b. ensure that the parent or guardian has been provided with a written description of the adoption services provided by the adoption society; c. avail counselling services to the parent or guardian and the child if he or she, is above ten years of age. | A written description of the adoption services offered by the adoption society provides transparency, allowing the parent or guardian to understand what services are available, the scope of support provided and any associated costs or procedures. This transparency builds trust between the adoption society and the parent or guardian. Secondly, counselling services provide essential emotional support to parents or guardians considering adoption. These services help them process their feelings, address any emotional challenges and make a decision that is in the best interest of both them and the child. For paragraph (c), we propose the deletion of the words “is above ten years of age” and replacing it with the words “is above ten years of age or is able to, upon assessment by a counsellor, understand the process”. Some children may be below 10 years but are still able to comprehend occurrence of events. |
Regulation 13 Application for adoption | A person seeking to adopt a child shall make the application to an adoption society: a. in the form set out in the Sixth Schedule; b. accompanied by a police clearance certificate to be obtained not more than six months prior to the making of an application to the adoption society; c. accompanied by the fee set out in the Second Schedule; d. in the case of joint applicants, by applicants that have been married for a period of not less than three years prior to the date of commencement of adoption arrangements; and e. such other documents or information as the adoption society considers necessary to support the application. Upon receipt of an application under sub-regulation (1), the adoption society shall: a. prepare a child case record in the manner set out in regulation 15; b. refer the applicant for counselling by a person qualified to provide counselling services; c. undertake a home assessment pursuant to regulation 16; d. undertake a pre-placement counselling pursuant to regulation 17. Upon receipt of an application under this regulation, the adoption society shall consider the application and the results of the assessments under sub regulation (2) and may: a. approve the application and process the placement of the child; or b. reject the application and notify the applicant of decision, indicating the reasons thereof. | For sub-regulation (1)(a), we propose the deletion of the word “sixth” appearing before the word “schedule” and replacing it with the word “first”. The rationale for this proposal is that the Bill has only four schedules. Secondly, we propose that a template of an application for adoption is included in the First Schedule of the Regulations. A template provides a standard format that is easy to understand and use. Further, the use of a template enhances uniformity. For sub-regulation (1)(b), a police clearance certificate provides a background check for any criminal history or past convictions of the prospective adoptive parent(s). This ensures that individuals with a history of violent crimes, child abuse, neglect or other serious offenses are not permitted to adopt, thereby safeguarding the child from potential harm. For sub-regulation (2)(a), we propose the deletion of the words “regulation 15” and replacing it with the words “regulation 14”. The rationale for this proposal is that regulation 14 contains provisions on child case records. For sub-regulation (2)(c), we propose the deletion of the words “regulation 16” and replacing it with the words “regulation 15”. The rationale for this proposal is that regulation 15 contains provisions on home assessment. For sub-regulation (2)(d), we propose the deletion of the words “regulation 17” and replacing it with the words “regulation 16”. The rationale for this proposal is that regulation 16 contains provisions on pre-placement counselling. |
Regulation 14 Child case record | An adoption society shall prepare and maintain a child case record, in respect of every adoption proceeding. A child case record shall contain: a. a report on the child detailing: i. the background information of the child and their family; ii. an assessment of the parenting capacity of the child’s parent or guardian; iii. a summarised report, by a qualified medical practitioner, on the state of the child’s health, their health history, and any need for health care which might arise in the future; iv. the views and feelings of the child regarding the adoption, for children above ten years; v. an assessment of the child’s physical, emotional and educational needs and, particularly, where the child has a disability, chronic illness or where the child is intersex, the ability of any person or institution to provide any special care or medical attention which may be required for the wellbeing of the child; vi. if ascertainable, an indication of the child’s social, cultural and religious background; vii. a chronology of the decisions and actions taken by the adoption society with respect to the child; viii. analysis of the options for the future care of the child, which have been considered by the adoption society, and why placement for adoption is considered the preferred option; and ix. the views of the adoption society concerning the child’s need for contact with their parent or guardian, or other relative, or any other person the adoption society considers relevant; b. any consent to placement for adoption given in accordance with section 186 (8) of the Act or any withdrawal of a consent under sect 187 of the Act; c. a copy of the child’s certificate of birth or, where a child has none, a copy of the application therefor; and d. any other documents or information obtained by the adoption society in respect of the adoption proceedings. Pursuant to section 211 (1) of the Act, the contents of the child’s case record shall be confidential. Without prejudice to the generality of sub-regulation (2), an adoption society may provide such access to its child case records and disclose such information to: a. the Council; b. the Secretary for the purposes of the discharge of the Secretary’s duties under the Act; c. the Court; d. any person appointed by the adoption society for the purposes of the consideration by the adoption society of any representations, including complaints. An adoption society may transfer a copy of a child’s case record or part thereof to another adoption society if it considers this to be in the best interest of the child to whom the record relates, and a written record of any such transfer shall be kept. An adoption society may, with the approval of the Council, transfer a child’s case record to another adoption society where: a. the adoption society by which the child case record was maintained ceases to exist; b. the certificate of registration of the adoption society by which the child case record was maintained is cancelled or is otherwise not renewed; c. the adoption society by which the child case record was maintained is not the society by which the child is placed for adoption; or d. any other justifiable ground as the Council may determine. | Evaluating the parenting capacity of the child’s parent or guardian helps understand the child’s current environment and whether the biological family can provide adequate care. This ensures that all potential options for the child’s care are explored before proceeding with adoption. Secondly, including a medical report by a qualified practitioner ensures that the child’s health history and current health status are well-documented. This information is vital for adoptive parents to understand any medical needs and potential future healthcare requirements for the child. Thirdly, including information about the child’s social, cultural and religious background ensures that these aspects are considered in the adoption process. This is crucial for placing the child in an environment that respects and upholds their identity, heritage and values. From sub-regulation (2) onwards, we propose a re-numbering of the remaining sub-regulations. This proposal seeks to correct the arithmetic error present in this regulation. The addition of sub-regulation (3) is a good proposal. Confidentiality ensures that the personal details of the child and adoptive parents are kept confidential. This fosters a safe and supportive environment for adoption. |
Regulation 15 Home assessment | During consideration of an application for adoption under regulation 14, the adoption society shall assess an applicant’s home to determine the suitability for the care and custody of the child to be adopted. On completion of the home assessment under sub-regulation (1), the adoption society shall prepare a home assessment report containing the information specified in the Third Schedule. | For sub-regulation (1), we propose the deletion of the words “regulation 14” and replacing it with the words “regulation 13”. Regulation 13 outlines the process for applying for adoption. On the other hand, regulation 14 contains provisions on child case records. Secondly, a home assessment includes an evaluation of the cleanliness and overall hygiene of the living environment. A clean and well-maintained home is important for the child’s health, reducing the risk of illness or infection, and providing a pleasant and nurturing atmosphere. Thirdly, assessing whether the home has adequate space for the child is critical. The home assessment ensures that there is sufficient room for the child to sleep, play and study. This helps guarantee that the child will have a comfortable living environment that supports their physical and emotional development. |
Regulation 16 Pre-placement counselling | The adoption society shall not approve an adoption placement unless the applicant has received pre-placement counselling services from a qualified certified counsellor person on the adoption process and the parenting of an adopted child. | Pre-placement counselling helps prospective adoptive parents gain a thorough understanding of the adoption process, including legal requirements, timelines and the rights and responsibilities of adoptive parents. This understanding reduces uncertainty and helps the prospective adoptive parents navigate the process more confidently. Secondly, pre-placement counselling helps adoptive parents develop realistic expectations about the adoption process and parenting an adopted child. This includes understanding that the child may have complex emotional needs and that building a family through adoption may require different approaches than biological parenting. |
Regulation 17 Cancellation of approval | An adoption society may, at any time before a child is placed for adoption, cancel an approval for an adoption where circumstances have arisen, or evidence has become available, indicating that the applicant is not a fit person to have the care and custody of a child. Within ten days of making a determination under sub-regulation (1), the adoption society shall, in writing, notify: a. the applicant of the decision indicating the reasons thereof; and b. the Council of the determination. | By allowing the cancellation of an approval for adoption, adoption societies can prevent children from being placed in homes where there is a risk of abuse, neglect or other forms of mistreatment. This proactive measure ensures that children are placed in homes where they will be safe, loved and well-cared for. The addition of timelines in sub-regulation (2) is a good proposal. This proposal ensures that the applicant and Council are notified of the adoption society’s decision within a prescribed period without delays. |
Regulation 18 Adoption fees | The fees chargeable by adoption societies for the processing of applications for adoption shall be as set out in the Second Schedule. | Having a set fee schedule ensures that all applicants are charged the same fees for the same services, promoting fairness and equity. This prevents discriminatory practices or arbitrary pricing, where different applicants might be charged differently based on their perceived ability to pay. By clearly outlining the fees, prospective adoptive parents know upfront what the financial costs will be. This transparency helps to set clear expectations and allows them to plan and budget accordingly, reducing the likelihood of unexpected expenses. |
Pre-placement procedure | ||
Regulation 19 Pre-placement bonding | Upon approval of an application for adoption under this Part, the adoption society shall make necessary arrangement for the pre-placement bonding of the prospective adoptive parent and the child. The pre-placement bonding period shall not exceed a period of three months from the date of placement of the child. | This period allows both the child and the prospective adoptive parents to adjust emotionally. It gives them time to understand each other's needs, temperaments and behaviours in a real-life setting, helping to ensure that the adoption will be successful. Secondly, pre-placement bonding allows time for establishing daily routines and understanding the child's specific needs, which helps create a stable and predictable environment. This is crucial for the child's sense of security and belonging. |
Regulation 20 Social and medical inquiry | Prior to placing a child into the care and possession of a prospective adoptive parent, the adoption society shall undertake a social inquiry and a medical assessment of the child. Upon completion of the inquiry and assessment under sub-regulation (1), the adoption society shall obtain: a. a social worker’s report on the matters specified in form CAR 7 set out in the First Schedule; and b. a medical report on the health of the child and the adopter in form CAR 8 set out in the First Schedule. The reports obtained under this regulation shall be retained by the adoption society until the child attains the age of majority, or for such further period as the adoption society considers appropriate. | Understanding the child’s medical and social history allows for the development of personalized care plans that address their specific needs. This can include necessary medical treatments, therapies or educational support, which is essential for the child’s overall well-being and development. Secondly, a thorough medical assessment reveals the child’s current health status, any existing medical conditions, special needs or potential genetic disorders. This information is critical for matching the child with a family that is prepared and equipped to handle any specific health needs. |
Regulation 21 Commencement of Court adoption proceedings | A prospective adoptive parent shall commence adoption proceedings in Court within three months after expiry of the preplacement bonding under regulation 20 and in accordance with the rules made by the Chief Justice relating to adoption proceedings. Where the court proceedings are not commenced within the period specified under sub-regulation (1), the adoption process shall be deemed to be voidable, and the child may be removed from the custody and care of the prospective adoptive parent. | In sub-regulation (1). we propose the deletion of the words “regulation 20” and replacing it with the words “regulation 19”. The rationale for this proposal is that regulation 19 contains provisions on pre-placement bonding. |
| Placement | ||
Regulation 22 Placement of a child for adoption | A child shall not be placed for adoption unless: a. the application for adoption has been approved by the case management committee in accordance with these Regulations; and b. the applicant has read and acknowledged the explanatory memorandum for adopters set out in the Third Schedule. An adoption society shall not place a child for the purpose of adoption with an applicant if the applicant has received an adoption placement in the previous twelve months period, unless: a. the child who is proposed to be placed with the applicant is a sibling of the child previously placed with the applicant for the purpose of adoption; or b. the applicant’s previous placement for adoption is no longer subsisting. | The case management committee typically consists of professionals with expertise in child welfare. Their involvement ensures that the decision to place a child for adoption is based on a comprehensive evaluation of the child’s needs and circumstances. Secondly, the requirement for approval prevents rushed or ill-considered decisions that may not align with the child’s best interests. This oversight helps ensure that every adoption decision is carefully deliberated. |
Regulation 23 Post-placement assessment | Within twenty-one days after the placement of a child for adoption under regulation 21, the adoption society shall undertake a placement assessment in the home of the approved prospective adoptive parent. Upon conclusion of the assessment under sub-regulation (1), the adoption society shall prepare a post-placement report containing the information set out in the Third Schedule. | In sub-regulation (1). we propose the deletion of the words “regulation 21” and replacing it with the words “regulation 22”. The rationale for this proposal is that regulation 22 contains provisions on placement of children for adoption. |
Regulation 24 Report to the Council | Where the adoption society approves an adoption placement, it shall submit the report containing its decision to the Council, within fourteen days from the date its decision is made. | The addition of timelines in this regulation is a good proposal. The addition of timelines ensures that the adoption society submits its report to the Council within a prescribed period without delays. |
Regulation 25 Termination of placement for adoption | A prospective adoptive parent whose application has been approved under these Regulations may at any time before the making of an adoption order and by notice in writing to the adoption society, terminate the placement of a child. Upon receipt of the notice under sub-regulation (1): a. notify the Council and the Secretary of the termination; b. notify the parent or guardian of the child, or the institution or the alternative care provider in which the child was accommodated prior to the placement and advice on the right to resume custody of the child. Where adoption placement is terminated under this regulation, the adoption society shall refer the parent or guardian of the child, and the child (if the child is ten years of age or older) to an advocate for the completion of a consent to the making of an adoption order, pursuant to section 186 (8) of the Act, in favour of another applicant. | For sub-regulation (2), we propose the addition of the words “the adoption society shall” immediately after the words “sub-regulation (1)”. The rationale for this proposal is that the notice of termination is submitted by the prospective adoptive parent to the adoption society in sub-regulation (1). |
PART IV–INTER-COUNTRY ADOPTIONS | ||
Regulation 26 Interpretation of Part | In this Part, unless the context otherwise requires: “central authority” means the Council for purposes of the Hague Convention on Inter-Country Adoptions as provided under section 42(a) of the Act. “foreign adoption society” means a society other than a local adoption society, and which has been approved by the government of the receiving State; “Hague Convention” means the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption of 29th May 1993. “inter-country adoption” has the meaning assigned to it under section 191 of The Act. “local adoption society” means a society registered under section 208 of the Act. “receiving State” means the country where the adopted child will ordinarily reside and gain citizenship, and which is a signatory to the Hague Convention. | The addition of inter-country adoption is a good proposal for the following reasons: a. adoptive parents in other countries may have access to more substantial resources, including better healthcare, education and opportunities for social development. This can significantly improve the child's quality of life and future prospects; and b. by widening the pool of potential adoptive parents to include those from other countries, children can be adopted more quickly, reducing the time they spend in institutional care or temporary placements. Secondly, the addition of the Hague Convention is a good proposal. The Hague Convention emphasizes that the best interests of the child should be the primary consideration in all adoption procedures. This ensures that children are placed in environments that promote their well-being, stability and development. |
Regulation 27 Restriction on inter-country adoption | No inter-country adoption arrangements shall be commenced in Kenya except through the designated central authority. | A central authority ensures that adoption laws are applied consistently across all adoption applications. This helps prevent discrepancies and ensures that all adoptions meet the same legal and ethical standards. |
Regulation 28 Registration of a local adoption society for inter-country adoption | A local adoption society may apply to the Secretary for registration to undertake inter-country adoptions. An application for registration under sub-regulation (1) shall be: a. made in form CAR 10 set out in the First Schedule; b. accompanied by documents set out under regulation 5; and c. registered locally and undertaking local adoption for at least one year. | For sub-regulation (2)(a), we propose the deletion of the words “CAR 10” and replacing it with the words “CAR 11”. In the First Schedule, there are two templates erroneously labelled as form CAR 10. Further, we propose a re-numbering of the templates from form CAR 10 onwards. This proposal seeks to correct the arithmetic error present in the First Schedule. The addition of sub-regulation (2)(c) is a good proposal. By requiring a local adoption society to be active in domestic adoptions for at least one year, this ensures that the adoption society gains sufficient experience and understanding of the adoption process, legal requirements and ethical standards. Secondly, during this period, the adoption society’s staff can develop and refine their skills in managing adoption cases, conducting assessments and supporting adoptive families and children, thereby building a strong foundation for handling more complex inter-country adoptions. |
Regulation 29 Application for inter-country adoption | An application for inter-country adoption shall be: a. made to the Council by a designated central authority of the receiving State; b. accompanied by: i. the documents specified in the Sixth Schedule duly authenticated by the State Department or Ministry responsible for matters relating to foreign affairs in the receiving State; ii. a certificate of approval by the designated central authority of the receiving State; and iii. an undertaking by the foreign adoption society in form CAR 7 set out in the First Schedule to carry out all activities pertaining to the proposed adoption. Upon receipt of an application under sub-regulation (2), the Council shall consider the application and may: a. approve the application and within thirty days from the date of its decision notify the designated central authority of the receiving State and the relevant local adoption society of its decisions; or b. reject the application and within seven days from the date of the decision notify the designated Central Authority of the receiving State of its decision indicating the reasons thereof. Where a particular application for approval under this Part is rejected, the designated central authority may submit another application by the same prospective adopters within six months from the date of rejection of the previous application. | For paragraph (b)(i), the sixth schedule has not been included in the Regulations. We propose that the sixth schedule is added to the Regulations. This proposal will enhance clarity and completeness in this regulation. Secondly, we propose that once the sixth schedule is added, it is changed to be known as the sixth schedule. The rationale for this proposal is that the Regulations has four schedules. For paragraph (b)(iii), we propose the deletion of the words “CAR 7” and replacing it with the words “CAR 9”. A template of an undertaking by a foreign adoption society is found in form CAR 9 of the First Schedule. Thirdly, we propose a re-numbering of the sub-regulations in this regulation. This proposal seeks to correct the arithmetic error present in this regulation. For sub-regulation (2), we propose the deletion of the words “sub-regulation (2)” and replacing it with the words “sub-regulation (1)”. An application for inter-country adoption has been covered in sub-regulation (1). |
Regulation 30 Approvals before adoptive placement | Where an application for an inter-country adoption under regulation 28 is approved, the child shall not be placed with the prospective adoptive parent unless: a. the application is approved in accordance with this regulation; b. the central authority of the receiving State has approved the decision, where such approval is required by the law of that state; c. the Council and the central authority of the receiving State have approved that the proposed adoption may proceed; and d. subject to the making of an adoption order, the child will be authorised to enter and reside permanently in the receiving State. | We propose the deletion of the words “regulation 28” and replacing it with the words “regulation 29”. The rationale for this proposal is that an application for inter-country adoption has been covered in regulation 29. |
Regulation 31 Pre-placement bonding | Within three months of receipt of the approvals under regulation 28, the foreign adoption society shall, in consultation with the local adoption society, make arrangements for the prospective adoptive parent to travel to Kenya. Upon arrival of the prospective adoptive parented into Kenya, the local adoption society shall introduce the prospective adopters to the child for whom the approval to adopt has been granted. | This period allows both the child and the prospective adoptive parents to adjust emotionally. It gives them time to understand each other's needs, temperaments and behaviours in a real-life setting, helping to ensure that the adoption will be successful. Secondly, it allows time for establishing daily routines and understanding the child's specific needs, which helps create a stable and predictable environment. This is crucial for the child's sense of security and belonging. We propose the deletion of the word “parented” and replacing it with the word “parent”. This proposal enhances clarity by correcting the grammatical error present in this sub-regulation. |
Regulation 32 Undertaking by prospective adoptive parent | Where the prospective adoptive parents seek to proceed with the adoption process, require the adopters to sign the undertaking set out in the First Schedule before commencement of adoption proceedings. | We propose the deletion of the words “require the adopters” and replacing it with the words “the adoptive parents will sign”. This proposal will make this regulation clear and easy to understand. |
Regulation 33 Placement | The placement of a child for adoption and supervision by the local adoption society shall be undertaken in accordance with these Regulations. On completion of the placement period: a. the local adoption society may assist the adopters in making an application, either in person or by their advocate, to the Court for an adoption order; and b. the approval of the Council to the adoption arrangements shall form part of the supporting documents to the application for an adoption order. Where the local adoption society determines that proposed adoption is not in the best interests of the child, it shall promptly notify the Council. Upon receipt of a notification under sub-regulation (3), the Council shall investigate the suitability of the prospective adoptive parents, including making inquiries with the designated central authority of the intended receiving state. Where, upon conclusion of investigations conducted under sub-regulation (4) the Council determines that the prospective adoptive parents are not suitable, the Council may cancel the adoption arrangements and notify the local adoption society and the Central Authority of the intended receiving State of its decision. Where a prospective adoption arrangement is cancelled under sub-regulation (5), the provisions of regulation 25 shall apply with necessary modifications. | For sub-regulation (2)(a), we propose that a template of an application for an adoption order is included in the First Schedule of the Regulations. A template provides a standard format that is easy to understand and use. Further, the use of a template enhances uniformity. |
Regulation 34 Restriction of a foreign adoption society | Where, in the course of an inter-country adoption, a foreign adoption society breaches any of the provisions of its undertaking set out in the Third Schedule, the Council may, at any time during the adoption proceedings: a. stop the ongoing adoption arrangements; and b. bar the foreign adoption society from engaging in other adoption arrangements in Kenya for such period as the Council may specify. Where a foreign adoption society is barred from engaging in adoption arrangements in Kenya, it shall: a. transfer all files relating to ongoing adoption arrangements in Kenya to another approved foreign adoption society; and b. notify the local adoption society of such transfer within thirty days of such transfer. Where there is no other approved foreign adoption society to which adoption files of a foreign adoption society that has been barred from engaging in adoption proceedings in Kenya may be transferred, all ongoing adoption arrangements undertaking by the disapproved society shall lapse. | For sub-regulation (1), we propose the deletion of the words “the Third Schedule” and replacing it with the words “form CAR 9 in the First Schedule”. The undertakings of a foreign adoption society have been listed in form CAR 9 in the First Schedule. On the other hand, the Third Schedule outlines the contents of a home assessment report. |
Regulation 35 Adoption order | Where an adoption order is granted to a prospective foreign adoptive parent, the local adoption society: a. shall, within seven days from the day on which the order is made, notify the foreign adoption society of the decision of the Court; and b. may assist the adoptive parent to obtain the necessary travel documents for the child to facilitate their departure from Kenya. | Quick notification and assistance in obtaining travel documents help minimize the time a child spends in institutional care or temporary foster arrangements. This is beneficial for the child’s emotional and psychological well-being, allowing them to join their adoptive parents as soon as possible. By assisting with travel documents, the local adoption society helps ensure a smooth transition for the child from Kenya to their new home country, reducing the stress and uncertainty associated with travel and relocation. |
Regulation 36 Certificate of conformity to issue | Upon grant of an adoption order, the Council shall issue a certificate of conformity to a successful prospective foreign adoptive parent in the form CAR 10 set out in the First Schedule. | A certificate of conformity is proof that the adoption process has adhered to the provisions of the Act and Regulations, which are designed to safeguard the child’s best interests and prevent child trafficking and exploitation. |
Regulation 37 Obligations after grant of adoption order | The foreign adoption society shall submit to the local adoption society the following reports on the progress made by the adopted child in the receiving State: a. at least once every three months during the first two years from the date of making of the adoption order; and b. at least once every year until the third annual progress report has been given, or the child attains the age of majority, whichever comes earlier. Upon the grant of an adoption order, the local adoption society’s file in respect of the case in which the order is made shall be closed and retained by the local adoption society on receipt of the third annual progress report from the foreign adoption society on the adopted child. | Submitting reports ensures that the child’s well-being is regularly monitored. This helps identify and address any issues early on, whether they relate to health, education or emotional development. Secondly, regular reporting holds both the foreign adoption society and the local adoption society accountable for the child’s welfare. It ensures that both entities are actively involved in tracking the child’s progress and can intervene if problems arise. |
| PART V-MISCELLANEOUS PROVISIONS | ||
Regulation 38 Adopted children register | The adopted children register maintained in accordance with section 42(bb) of the Act shall contain the following information: a. particulars of the children considered to be free for adoption including: i. the names of the children; ii. the ages and gender of the children; iii. the cultural identity of the children; iv. the special needs, if any, of the children; v. the adoption society by which the adoption arrangements are made; and b. the particulars of the prospective adoptive parent, including: i. the name and address of each approved applicant, and the date of approval; ii. in the case of inter-country adoptions, the name of a person or persons not resident in Kenya who is or are approved to adopt a child in Kenya, the date of the approval, and the country in which they are ordinarily resident; iii. whether the approval concerned was given after application to an adoption society, and the terms of the approval by the Council; and iv. the name and address of the adoption society to which the application for adoption placement was made and approved. The Council shall remove from the register referred to in sub-regulation (1) the name of any person contained in the register: a. on the making of an adoption order or interim order in favour of that person; b. on receipt by the Council of a notice in writing from that person requesting the removal of the person’s name; c. if, after reasonable inquiry, the person cannot be found; d. if, because of the change in the circumstances of the person, he or she is no longer suitable to adopt a child; e. on refusal by the adoption society to assess the person, or on revocation of approval of the person for adoption placement; or f. in such other circumstances as the Council considers appropriate. Where a name removed at the request of the person concerned is the name of a person who applied jointly with another person for approval to apply for an adoption order, the name of that other person shall, at the same time, be removed from the register. Nothing in this regulation: a. requires the adoption society to place a child for the purpose of adoption with an applicant whose name is not on the register; or b. gives an applicant whose name is in the register any right or entitlement to the placement of a child for adoption. | By including specific details such as the names, ages and special needs of children, as well as the approval details for prospective adoptive parents, the adopted children register ensures that all information is verified and documented, reducing the chances of errors or discrepancies. For inter-country adoptions, the adopted children register tracks details such as the names of approved applicants and their countries of residence. This ensures that inter-country adoptions are conducted in a regulated manner and that prospective parents meet the legal requirements for adopting from Kenya. Thirdly, having a centralized register with comprehensive details allows for efficient administration and monitoring of the adoption process. It provides a single point of reference for reviewing and managing adoption cases. |
Regulation 39 Transitional Provisions | For purposes of this regulation “former Regulations” means the Children (Adoption) Regulations, 2005. Every adoption society registered under the former Regulations shall comply with the requirements of these Regulations relating to renew of registration. Any matter or proceedings being undertaken under the former Regulations, 2005 shall be determined and finalised in accordance with these Regulations. | Transitional provisions facilitate a smooth transition from one legal framework to another by providing guidance on how to apply the new law to situations that arose under the old law. This helps prevent disruptions to individuals, businesses and institutions affected by the change. Secondly, transitional provisions can offer flexibility in implementing new laws by phasing in changes gradually or allowing for exceptions in certain circumstances. This flexibility acknowledges practical challenges in immediately complying with the new requirements and allows for adjustments over time. |
Regulation 40 Revocation of L.N. No. 43 of 2005 | The Children (Adoption) Regulations, 2005 are repealed. | This is a good proposal as it seeks to align the Regulations with the provisions of the Act which came into effect on 26th July 2022. |