[2015] KEHC 7953 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

ADOPTION CAUSE NO. 14 OF 2015

IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF BABY LM.

JUDGMENT

INTRODUCTION

1. By Originating Summons dated 4th May 2015, the joint applicant spouses of Swedish nationality seek an order that they be authorized jointly to adopt Baby LM upon declaration of being a Kenyan citizen; that the child’s name upon adoption be WLL; that legal guardians be appointed and that the Registrar General be directed to make the appropriate entries in the Adopted Children’s Register, as provided for under section 170 of the Children Act.

JURISDICTION TO MAKE AN INTERNATIONAL ADOPTION ORDER

2. Pursuant to section 162 of the Children Act –

“162. An adoption order may be made in respect of a child upon the joint application of two spouses who are not Kenya citizens and not resident in Kenya (in this Act referred to as an “international adoption”) if they— (a) have obtained the consents specified in paragraph (e) of subsection 4 of section 158; and (b) have satisfied the court that the country where they ordinarily reside and where they expect to reside with the child immediately after the making of the adoption order will respect and recognise the adoption order and will grant resident status to the child; and

(c) have been authorised and recommended as persons who are suitable (including being morally fit and financially capable) to adopt a foreign child by a competent government authority or court of competent jurisdiction in the country immediately after the making of the adoption order.”

3. Under section 163 of the Children Act, the court before making an order of adoption is required to satisfy itself of certain matters as follows:

“163. (1) The court before making an adoption order shall be satisfied—

(a) that every person whose consent is necessary under this Part, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which the application is made, and in particular in the case of a parent, understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights;

(b) that the order if made will be in the best interests of the child, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child, and to the ability of the applicant to maintain and educate the child;

(c) that the applicant has not received or agreed to receive, and that no person had made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption;

(d) that any person whose consent is dispensed with on the grounds of incapacity is still incapable of giving consent at the date of making the order;

(e) where the applicant is not a relative of the child, that reasonable steps have been taken to inform the relatives of the child of the proposed adoption and no relative able to accept the care of the child has expressed willingness to do so; and

(f) that both the applicant and the child have been assessed and evaluated by a registered adoption society in Kenya in accordance with the regulations made by the Minister and such report has been availed to the court.”

4. Finally, the court on making an adoption order has further power to appoint a guardian for the child as provided for under section 164 of the Children Act as follows:

“164. (1) The court at the time of making an adoption order may upon the application of the adopter, or of its own motion or in the case of applicants for an international adoption shall appoint any person approved by the adopter and whose prior consent thereto has been given in writing to be the guardian of the child in the event of the adopter, or both of the adopters where two spouses have applied for the adoption order, dying or becoming incapacitated before the child is of full age.

(2) The court may, at any time before the child is of full age, on the application of the adopter, or of the guardian appointed under subsection (1) or of the child, revoke such appointment and appoint any other person to be the guardian of the child.”

THE CHILD

5. The Child named LM is 4 years 6 months (DOB 3rd January 2011) old African male child who was abandoned by his mother at Nyachaba Market, Thika, was rescued on 3rd July 2013, according to police records Occurrence Book (OB) 36/3/7/2013 Thika Police Station, and committed into the care of Karibu Centre, Thika by an order of the Children Court, Thika in Case No. 137 of 2014 made on 24th September 2014. Final letter by the police dated 3rd February 2014 confirmed that the child had not been claimed. The child was declared free for adoption by the Little Angels Network Adoption Society Case Committee on 26th November 2014 and placed with the applicants on 28th January 2015.

THE PROSPECTIVE PARENTS

6. The applicants are spouses of Christian faith, citizens of Sweden both certified to be medically fit with no criminal record and aged 42 and 36, respectively. They are both employed as school teachers and they have reasonable income and other assets including their own home. They have appointed legal guardians who have consented to take care of the child in the event of death or incapacity of the applicants.

7. The applicants have executed the Undertaking by Adopters – Foreign Adoption under the 11th Schedule of Children Act and the organization Family Association for Intercountry Adoption has given an Undertaking by Foreign Adoption Society under 12th Schedule to make follow up supervisions with reports to local adoption society for a period of three years from the date of arrival in the receiving country.

CONSENTS AND APPROVALS

8. The consent of the biological parents of the child is waived under section 159 of the Children Act in the circumstances of the case and the applicants have demonstrated approvals by the Swedish Government through Municipality of Munkedal Social Welfare Committee certificate dated 30th December 2014 and the Kenya Adoption Committee on 19th August 2014 for their adoption of the child.

POST-ADOPTION STATUS OF THE CHILD.

9. The applicants have demonstrated that the child will upon an Adoption Order acquire German citizenship and therefore be granted resident status in Sweden where the applicants reside, in accordance with the law of that country.

STATUTORY REPORTS

10. The Guardian ad litem, Joyce Apasi Mwachari, the Little Angels Network adoption society and Mr. Zephaniah Apoko, Sub-County Children’s Officer, Msambweni on behalf of the Director of Children Services, have filed reports respectively dated 9th July 2015, 8th June 2014 and 15th July 2015 on the proposed adoption all of which were positive in recommending the adoption to be in the best interest of the child.

OBSERVATIONS AND FINDINGS OF THE COURT

11. The Court heard the testimony of the applicants, the guardian ad litem and the representative from the Little Angels Network adoption society, Ms. Ann Wamuyu, and the Children’s Officer, Msambweni sub-County as well as observed the child in court and its relation with the applicants. From its own observation, the Court agreed with the reports of the guardian, the adoption society and the Children Officer that the child had bonded well with the prospective parents, noting in the proceedings that “child appears well bonded with the applicants, sitting with the applicants on the 2nd applicant’s lap”.

BEST INTERESTS OF THE CHILD

12. The child who was abandoned clearly requires a home with loving and caring parents. Having found that the applicants are suitable and able to provide for the needs of child, among others, loving care, a home, maintenance and education, and having considered the positive relevant statutory reports that the child has bonded with applicants, the court determines that the best interest of the child must lie in the continued life as a member of the applicants’ family.

13. Accordingly, as urged by Counsel for the applicants, Ms. Osoro, the Court finds that it is in the best interests of the child, to allow the adoption so that he is provided with a family, a home and the loving care of the applicants, with whom he has clearly bonded.

ORDERS

14. Accordingly, the final orders in Originating Summons dated 4th May 2015 are granted as prayed.

15. The Orders of the Court will issue in the full names of the applicants, the child and the legal guardians.

EDWARD M. MURIITHI

JUDGE

DATED SIGNED AND DELIVERED THIS 31ST DAY OF JULY 2015.

EDWARD M. MURIITHI

………………………………………………………..

JUDGE

In the presence of: -

………………………………………….. for the Applicants

………………………………………….. - Court Assistant.