[2004] KEHC 2484 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI ADOPTION CAUSE NO. 25 OF 2004

IN THE MATTER OF BABY W alias NN

(THE INFANT)

AND

FLG………………………..THE APPLICANT

JUDGMENT

In this adoption cause, the applicant FLG has applied to be authorized to adopt the infant. The infant a male child was born on 26th March 2003 and was found abandoned by a Good Samaritan near a bus stop in Machakos. He was taken to the Machakos General Hospital where he remained until he was committed vide a court order dated 7th May 2003 to the foster care of the New Life Home. The infant was subsequently placed under the foster care of the applicant on 24th October 2003 by the New Life Home.

The applicant has been resident of Kenya for the last 4 years. She has previously adopted another child, now aged 3½ years by an order of this court dated 21st January 2002 The applicant is a single female born 43 years ago in France. She holds a French Diplomatic passport and works as head of the International Federation of the Red Cross and Red Crescent Societies Regional Delegation. This is a senior position with responsibilities throughout the Region.

The applicant has never been married but she has deep desire to be a parent and raise children. She would wish to expand her family so that her daughter could have a sibling sharing the same Nationality with her daughter.

Three reports have been filed being the evaluation and assessment of the applicant’s suitability as an adoptive parent by:

1) The Child Welfare Society of Kenya

The report by their Social Worker recommends this adoption. They have also filed a certificate declaring that the child is free for adoption as required under Section 156(1) of the Children Act 2001

2) The Director of Children’s Services has also evaluated the applicant’s suitability and the report is favorable on all other aspects such as financial ability of the applicant, and the interests and welfare of the infant save that the Director of Children’s Services was unable to give recommendations on the challenges provided under Section 158(2) (d) of the Children’s Act. The Act provides as follows:

“An adoption order shall not be made in favor of the following persons unless the court is satisfied that there are special circumstances that justify the making of an adoption order.

a) A sole foreign female applicant.”

For this reason the Director of Children’s Services left the matter to the discretion of the court to decree whether there are special circumstances to enable the court issue the adoption order against the provisions of the law.

The Guardian Ad Litem has also filed a very comprehensive report on the suitability of the applicant.

I have given due consideration to these reports and also the statement by the applicant. The guiding principal while determining a matter of adoption that should be given utmost and paramount consideration is best interest of the child. In this regard I would wish to refer to Section 4 of the Children Act 2001 whereby all the Judicial and administrative actions should be exercised while ensuring that that the following matters concerning the welfare of a child are put into paramount consideration;

Safeguard and promote the rights and welfare of the child

a) Conserve and promote the welfare of the child

b) Secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest. The welfare and best interest of the child in some cases is complete and subjective to identify in certainty and that is why in addition to the applicant’s statement, additional reports by Social Workers are necessary.

In this case the infant a male child was placed under the foster care of the applicant, a single female foreigner despite the clear provisions of the law. This child was abandoned, had no home and was under the Institutional care of the New Life Home, a home for abandoned babies.

According to the report by the Director of Children’s Services, this is the third placement of the infant. For the last 5 months, the infant has been under the continuous care and control of the applicant, he has found a stable home, under the loving care of the applicant and the sister he has bonded very well with them. If this order is not given will it be in the best interest of the infant?

The applicant has worked for about 26 years in the humanitarian field as an International civil servant and has given a lot of human support to the vulnerable people. She is motivated by the desire to make a difference for another child and also to give her daughter a sibling who has the same background, nationality and race. The applicant is well educated and holds a very senior position and understands the responsibilities emanating from an order of adoption and hence she has appointed a legal guardian of the infant and even a committee of Trustees who would look after the welfare of the infant in the event that she is not alive. The conscience of this court is clear that the applicant’s in seeking this adoption of this male child is driven by good faith and she will promote the best interest of the infant. When Parliament enacted the provisions of Section 158 (2) (d) was also driven by good faith and were pursuing the best interest of the child and in particular ensuring that no child is put at risk through an adoption order but in this case, this Court is convinced that If one wanted a child to abuse and molest, they would not take a baby who is a few months old to bring up as their own and only for purposes of abusing the child.

Considering the applicant’s circumstances. I am inclined to allow the application and the applicant is hereby authorized to adopt baby W alias NN who will hence forth be known as MALG

This Court is of the view that in matters of foster care placement the provisions of section 148 of the children’s Act should be complied with by the institutions dealing with abandoned children. In this regard this judgment should be served upon the Directors of the New Life Home.

It is so ordered.

Judgment read and signed on 23rd April, 2004

MARTHA KOOME

JUDGE