[2015] KEHC 7538 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

ADOPTION CAUSE NO. 6 OF 2015

IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF BABY S.R.

JUDGMENT

INTRODUCTION

By Originating Summons dated 4th March 2015, the applicant spouses of Dutch nationality seek an order that they be authorized jointly to adopt Baby S.R. upon her being declared a Kenyan citizen; that the child’s name upon adoption be S.R.V.; 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

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.”

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.”

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

The Child named S.R. alias M.K. is 1 year 10 months (DOB 13th September 2013) old; African female child who is a child with special need regard being had to her HIV-positive status who was abandoned by her mother at Kisii Level 5 Hospital according to police records Occurrence Book (OB) 76/02/12/2013 Kisii Central Police Station and subsequently committed into the care of New Life Home Trust Kisumu by an Order of the Children Court, Kisumu in Case No. 2 of 2014 made on 12th March 2014. Final letters by the police dated 10th January 2014 and by Sub-county Children Officer, Kisii dated 11th August 2014 confirmed that investigation did not trace the biological parents of the child. She was declared free for adoption by the Little Angels Network Adoption Society Case Committee on 15th August 2014 and placed with the applicants on 27th October 2014.

THE PROSPECTIVE PARENTS

The applicants are spouses of Christian faith, citizens of THE NETHERLANDS both certified to be medically fit with no criminal record and aged 39 and 37, respectively. They are both employed as self-employed building contractor and Assistant Pharmacist, and have reasonable income and other assets including their own home. They have one biological child of their own, a girl aged 4 years and 8 months. The court notes the applicants’ consent to care for a HIV exposed child dated 27th October 2014

The applicants have executed the Undertaking by Adopters – Foreign Adoption under the 11th Schedule of Children Act and the organization Stitching Afrika (Foundation Afrika), Hoeflingweg 14, 7241 CH LOCHEM, THE NETHERLANDS has give 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

The consent of the biological parents of the child is waived under section 159 of the Children Act and the applicants have demonstrated approvals by the Dutch Government through the Child Welfare Council Rotterdam Office dated 21st May 2013 and the State-Secretary of Security and Justice report dated 5th June 2013 and the Kenya Adoption Committee on 22nd July 2014 for their adoption of the child.

POST-ADOPTION STATUS OF THE CHILD.

The applicants have demonstrated that the child will upon an Adoption Order acquire Dutch nationality and therefore be granted resident status in The Netherlands where the applicants reside, in accordance with the laws of that Country.

STATUTORY REPORTS

The Guardian ad litem, J A O, the Little Angels Network adoption society and Ms. Eliabeth Mbuka Principal Children’s Officer, Mombasa on behalf of the Director of Children Services, respectively dated 5th May 2015, 26th February 2015 and 4th May 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

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 considered the positive report of the Principal Children’s Officer, Mombasa 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. Specifically, I noted the applicants’ child’s comfortable relations and friendliness with the biological daughter of the applicants as sisters and the applicants’ commendable warmth towards the child, considering her as making their family complete, and their admirable readiness to take care of her irrespective of the child’s special needs.

BEST INTERESTS OF THE CHILD

The child who has special needs most clearly requires, in her special circumstances, a home with loving and caring parents and sister. 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’ family, the court determines that the best interest of the child must lie in the continued life as a member of the applicants’ family.

Accordingly, I find that it is in the best interests of the child, to allow the adoption so that she is provided with a family, a home and the loving care of the applicants, and with whom she has clearly bonded as a child to her parents, who also agree to take care of her irrespective of her special needs.

ORDERS

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

The Orders of the Court will issue in the full names of the applicants and the child.

DATED SIGNED AND DELIVERED THIS 30TH DAY OF JUNE 2015.

EDWARD M. MURIITHI

JUDGE

In the presence of: -

Mr. Njoroge for the Applicants

Linda - Court Assistant.