[2014] KEHC 1053 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ADOPTION CAUSE NO. 28 OF 2014

IN THE MATTER OF THE CHILDREN ACT NO. 8 OF 2001

AND

IN THE MATTER OF ADOPTION OF BABY J AND

IN THE MATTER OF AN APPLICATION FOR ORDERS OF ADOPTION OF BABY J BY K E B AND E M A B THE APPLICANTS

JUDGMENT

By way of an originating summons dated 22nd October, 2014 the two applicants namely K E B(hereinafter referred to as the 1st Applicant) andE M A B(hereinafter referred to as the 2nd Applicant) seek inter alia the following orders:

“3. THAT the applicants be authorized to adopt BABY J to be known as V A J B.

4. THAT J S and L S be appointed the legal guardians of the child in the event of the death or incapacity of the Applicants before the child is of age.

5. THAT the Registrar-General be directed to enter the adoption in the Adopted Children’s Register.

6. THAT the court be pleased to make any further orders it deems necessary.”

The application was determined by way of vive voce evidence. On 12th November, 2014 the court did approve the appointment of Ms. E A N as ‘Guardian ad litem’in the matter.

Section 156 (1) of the Children Act of Kenya 2001 provides as follows:

“No arrangement shall be commenced for the adoption of a child unless the child is at least six weeks old and has been declared free for adoption by a registered adoption society in accordance with the rules prescribed in that behalf.”

The applicants herein are both Swedish citizens. This then is an International Adoption and will be guided by The Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoptionas well as the Children Act of Kenya 2001. Section 162 of the Children act provides that foreign applicants in an adoption proceeding must “have been authorized and recommended as persons who are suitable (including being morally fit and financially capable) to adopt a foreign child by a competent Government authority ………….” In this regard I have seen the certificate of consent to adopt a foreign child issued to the two applicants by the Social Welfare Committee Municipality of Ekero dated 30th April, 2013. Likewise the applicants were issued with an Approval Certificate dated 17th April, 2014 to adopt a Kenyan child by the National Adoption Committee of Kenya. I therefore find that all the legal prerequisites for this adoption application have been complied with and that the same is properly before the court.

THE APPLICANTS

The applicants are a couple who got married to each other in the Church of Sweden at Runtuna Church on 15th March, 2008. This is proved by the annexed copy of their marriage certificate. Despite having lived as a couple for over six (6) years the applicants did not succeed in conceiving a child naturally. Their efforts at artificial methods of conception were also unsuccessful. This led them to the option of adoption in order to complete their family. I have carefully perused the Social Investigation Report prepared by the Swedish National Board of Health and Welfare. It indicates that both applicants had a normal upper class upbringing in Sweden and both were raised in close-knit nuclear families. Their siblings and parents all support and encourage their decision to adopt a child. The applicants are both in stable careers. The 1st Applicant works as a consultant whilst the 2nd Applicant works as a senior accountant. Together they earn more than enough to provide for the needs of a growing child. The couple own their own home in the town of Hummelvretsvagen where they reside. The home is said to be a spacious double-storey house which is conducive to raise a child in. Both were examined by a doctor and were found to be physically and mentally fit and well able to take up the challenge of child rearing. Both applicants annexed certificates issued by the Swedish National Police Board confirming that neither has a criminal record.

The applicants both appeared before me on 5th December, 2014. They both confirmed that they fully understood the legal implications of an adoption order and confirmed that they intend to treat the child as if he were their own biological child. They have both attended a course in pre-adoption counseling in their home country. Their commitment to this adoptive is further evidenced by the fact that they have taken time to travel several thousand miles to Kenya and have been here for several months in order to achieve their desire. It was confirmed to this court that an adoption order made in Kenya would be given full legal effect in Sweden and that upon adoption the child would be eligible to acquire Swedish citizenship and therefore would be entitled to education and medical care at state expense just like all other Swedish children. My own view was that the applicants are a mature couple in a committed and loving relationship who have a sincere and genuine desire to adopt this child and provide him with a home. In my view both were suitable adoptive parents.

THE CHILD

The subject child whose names were given as ‘Baby J’ is a boy-child estimated to have been born on 26th June, 2013. The child was abandoned shortly after birth at [particulars withheld] Academy near Pangani police station. The child was rescued by a good Samaritan who took him to the police station. Police immediately rushed the infant to Kenyatta National Hospital where he was admitted for observation and any necessary treatment. On 12th July, 2013 the child was discharged from the hospital and admitted to Thomas Barnados House for care and protection. It is at this home that the applicants met the child. Article 14 (4) of the Constitution of Kenya provides that:

“Any child who is, or appears to be less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth.”

I therefore declare this child to be a citizen of Kenya by birth.

From the time he was abandoned to date no person has come forward to claim the child. By a letter dated 22nd January, 2014 the officer commanding Pangani police station confirms that all efforts to trace the biological mother of the child have borne no fruit. Since there exists no known person from whom consent for this adoption can be sought and/or obtained I waive all requirements for consent in line with section 159 of the Children Act.

THE APPLICATION

Section 4(a) of the Children Act obliges a court to give priority to the best interests of the child in such applications. I have carefully perused the Home Report dated 24th November, 2014 prepared by the Childrens Department, Msambweni District as well as the Report of the Guardian ad litem filed in court on 24th November, 2014. Both reports indicate that the child has adapted well to the couple and there has been proper bonding. The child has lived with the applicants in an apartment in Diani from 24th July, 2014 to date under a Fostering arrangement. The child is noted to have grown in weight and flourished under the care of the applicants. He already understands and responds to a few words in Swedish. Nothing adverse was noted during this fostering period. The child was before me with the applicants. He was asleep being held close by the 2nd applicant. I was able to note that the child appeared healthy and well. This is a child who was abandoned shortly after birth. He faced an uncertain future in homes and institutions. This adoption allows the child the opportunity to be raised by loving parents in a stable home environment. This certainly serves the best interests of the child. I therefore authorize this adoption. I grant prayers (3), (4), (5) and (6) of the Originating Summons dated 22nd October, 2014. No order on costs.

Dated and Delivered in Mombasa this 11th day of December, 2014.

M. ODERO

JUDGE