By Harriet Kanaiza Akibaya
On January 21, 2016, the Government of Kenya, led by the Attorney-General Prof Githu Muigai appeared before the Convention on the Rights of the Child Committee of Experts to give a report on the implementation of child rights in the country. Among the key concerns for the Committee was that the country had lagged behind in the formulation of a progressive legal and policy framework, to guarantee children who are not within family set ups proper care.
The Committee urged the Government to take steps aimed at ensuring that the review of the Children Act, a process which has been ongoing for close to ten years, is finalised expeditiously. This paper seeks to examine kafala, guardianship, foster care and adoption which are some of the recognised forms of alternative care for children. It also seeks to make a number of recommendations.
Kafala is a religious form of alternative care that is practised by persons professing the Islamic faith. Under the arrangement, an individual or a family undertakes the duty of caring and protecting a child besides making provisions for the child’s basic needs, thus essentially having both the custody and maintenance aspects relating to the child.
What Kafala entails
In its most rudimentary meaning, the word refers to a “sponsorship system” where the kafil (adoptive parent) agrees to support the makfoul (adopted child) until s/he is of age. The verb takafala is an Arabic word meaning to take care of an orphan by providing all their basic needs (food, clothing, education). The rules governing kafala (Islamic adoption) are distinct thus rendering the relationship different from what is commonly practiced by non-Muslims.
The Convention on the Rights of the Child, which Kenya has ratified, expressly recognises the practice under Article 20(3) by encouraging stakeholders to take cognizance of the child’s ethnic, religious, cultural and linguistic background before placing them to alternative family care.
Raising a non-biological child is allowed and, in the case of an orphan, even encouraged. The child, however, does not become a “true child” of the “adoptive parents”. The child in this case retains their own biological family name and does not assume the name of the “adoptive family”. Among Muslims, the extended family has a strong network. It is thus rare for an orphaned child to be abandoned without a relative to care of them. Cases of children being placed to alternative care are however notable during times of war, famine, or catastrophes when families may be separated.
It is critical to note that whereas the Convention on the Rights of the Child expressly embraces kafala, the Children Act is silent on its application. The review of the Children Act needs to capture the practice in the legislation to enable those who profess the faith to confidently offer custody and maintenance to children within the family set ups. Kenya should, in this regard, borrow a leaf from Zanzibar’s Children Act which expressly provides for Kafala in tandem with the Convention.
The Children Act defines a “Guardian” as a person appointed by will or deed, by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent either alone or in conjunction with the surviving parent…” It should be noted from this definition that for one to assume guardianship, at least one of the parents to the child must be deceased; guardianship is not applicable where both parents are alive.
There are three ways in which one can be appointed to be a guardian, under the Children Act. First, the legislation provides for appointment through a “deed”, or simply put through an agreement. Such an appointment must be made in tandem with the general rules relating to drafting of agreements, considering that the Act does not get into details on the structure, content and parties of the deed. Broadly speaking, the deed should be in writing, with at least two competent witnesses (adults of sound mind) signing. Guardians can also be appointed through a will. The general rules of drafting of wills are applicable in this case.
The Succession Act does not have a specific form for drafting a will. Section 8 of the Act gives an option of the will being made orally or in writing, with Section 9 providing for “formal requirements for an oral will”. Advocates drafting wills for clients who have children, below the age of eighteen years, need to draw their attention to the possibility of the clients appointing Guardians under the will to forestall the possibility of their children being without alternative care after their death. Section 105 of the Children Act empowers the children’s court to appoint a guardian upon application by any individual, if the child’s parents are no longer living or cannot be found and the child has no other person having parental responsibility for them. Guardianship can be extended beyond the child’s eighteenth birthday, if an application is made before the child turns eighteen by the child, the parent, relative of a child or the Director of children Services or anyone delegated by the Director. Guardians are expected to discharge their obligations to the child and the child’s property diligently, failure to which, they stand the risk of being jailed for a term not exceeding one year or a fine of fifty thousand or both.
The ongoing review of the Children Act presents a good opportunity for the law to widen the definition of guardianship to embrace the reality that one can provide parental responsibility to a child whose parents are alive, but lack the where withal to meet the requisite parental responsibilities, such persons may wish to support a child without getting into adoption or other forms of alternative care.
Foster care refers to substitute care for children outside their own home by people other than their parents or legal guardians. Formal foster care according to the Children Act is the placement of a child with a person who is not the child’s parent, relative or guardian and who is willing to undertake the care and maintenance of that child. Informal foster care is demonstrated when orphaned, abandoned, lost or neglected children are taken in by community members without following any formal process. In foster care arrangements, the child’s biological or adoptive parents, or other legal guardians, temporarily give up legal custody of the child. Foster care maybe provided for orphans and vulnerable children until the child is reunited with parents or placed in suitable permanent alternative care.
Children are rendered in need of foster care for diverse reasons. The reasons range from them being orphaned, neglected, abandoned, mentally/physically disabled to cases of physical or sexual abuse. Neglect need not be voluntary, more often than not, a child is neglected by a parent or a legal guardian who is under substance abuse, has mental health problems, or is incarcerated. In such instances, the child is better off placed into custodial care awaiting his/her parents or guardians to receive treatment, counselling or even serve their sentences before reuniting with them. Occasionally, some children are in foster care because their parents are unable to control them, and their behaviour may have led to delinquency.
A child may be placed in foster care with the parent’s consent. The Children Act empowers the court to order placement of a child into foster care without the parents or guardians consent notably in cases of abuse and or neglect.
In Kenya, formal foster care maybe categorised into three viz; family, emergency, and community based foster home. Foster family care is when a child is placed to care with a person who is not the guardian nor related to them but who’s willing to voluntary undertake proper care of the child for a period of one year, which period is renewable.
Emergency foster care is where a child is placed with a pre-selected, vetted emergency foster parent for a few days while in the case of a community based foster homes, a group of up to six vulnerable children are placed in rented houses within the community and are cared for by a caretaker usually recruited by an organization supporting foster care.
International instruments, specifically the UN Convention and the African Charter on the Rights and Welfare of the Child, emphasise the need for a child to be cared for by their parents. Foster care should thus be resorted to when parental care is inadequate and or inefficient. Narrowing down to domestic provisions, the children Act recognises and in fact gives guidelines to the administration of foster care in Kenya under Part XI and schedule 4 of the Act. The legislation allows spouses in a marriage; single men and women above the age of twenty-five years to apply to the Director to foster children.
However, no single man may qualify to foster a female child and no single woman may qualify to foster a male child. It is instructive to note that no person shall be appointed to be a foster parent unless the person is resident in the Republic of Kenya and has been so resident for a period of at least twelve months. Finally, any person who wishes to foster a child must notify the children’s officer and must be duly registered in the foster care register and be issued with a certificate. A foster parent cannot remove a child from the jurisdiction of the Republic of Kenya without the leave of the court and such leave shall only be granted upon exceptional circumstances being demonstrated.
Adoption vests parental rights and duties relating to a child to the person whom the adoption order has been granted. It is important to note that the High Court is the only forum with jurisdiction to entertain adoption proceedings, magistrate’s courts lack powers to issue adoption orders. The Act establishes two key institutional frameworks to deal with adoption issues in the country. The multi sectoral Adoption Committee, consists of Government ministries, children homes, Kenyatta National hospital, one representative from private hospitals and the Law Society of Kenya. This committee is charged with overseeing adoption issues in the country. The Act also makes provision for adoption societies, which essentially make reports declaring children to be “fit for adoption” after conducting due diligence. Before any adoption proceedings are commenced, the child must be at least six weeks old and they must have been declared fit for adoption by a registered adoption society. The child should have been resident in Kenya under the continuous care and control of the applicant for a period of three consecutive months before the filing of the application. The court appoints a guardian ad litem to safeguard the interests of the child amongst other things pending determination of the adoption proceedings.
Prospective applicants must be over 25 years old and at least 21 years older than the child unless they are related to the child. The Act provides that a sole male applicant wishing to adopt a female child, a female wishing to adopt a male child, individuals over the age of 65 years or a sole female applicant will not be allowed to adopt a child unless there are special circumstances for an adoption order to be made. On the same breath, a person who is not of sound mind; or has been charged or convicted before of a child abuse offence; a homo sexual; joint applicants who are not married; or a sole foreign male applicant cannot be allowed to adopt a child.
The Children Act, in the spirit of child participation, requires children being adopted and are over fourteen years to give consent. If the parents, guardians or any person having parental responsibility are available, they must give informed consent. For foreign adopters going to reside outside the country with the adopted child, then, the consent of their courts or Government authority will be required. It is worth noting that consents can be done away with in the case of parents or guardians who have abandoned or neglected their children or cannot be found. An adoption order has the effect of transferring all rights, duties and responsibilities of a child to the adopter. The order effectively extinguishes the rights, duties, responsibilities that a parent, guardian or anyone having parental responsibility had before the order was made.
Whereas Kenya has ratified The Hague Convention dealing with inter-country adoptions, and made provisions to facilitate international adoptions, there have been instances where allegations have been made that international adoptions have been used as a conduit to facilitate child trafficking. In view of this, the Cabinet passed a Resolution providing for a moratorium on international adoptions. On 20th February 2015, the Cabinet Secretary for Labour, Social Security and Services established an expert committee to review and develop a detailed policy and legal framework to regulate and manage child adoptions in Kenya. The Expert Committee and the Secretariat have been given a three-year timeline to streamline the practice of adoption in Kenya.
The ongoing review of the children Act should embrace the concept of “kinship adoption”, so that Kenyans willing to adopt their relatives are not subjected to the rigorous, expensive and complex procedure that is aimed at curbing child trafficking. It is instructive to note that the complexity and cost of adoption has discouraged many people from formally adopting children who are relatives, thus opting to “informally’ support the children without going through the adoption process, such children will certainly not be entitled to the rights that would ordinarily accrue to them in the event that the formal adoption process had been done. On a more technical note, the Act should expressly provide for the right to appeal from adoption orders made by the courts. Finally, the Act should empower magistrates to issue adoption orders especially, on kinship adoptions.
Writer is a children rights lawyer