Rosemary, a childless divorcee who lives in Kirinyaga County, is the latest beneficiary of a developing legal trend where courts are allowing unmarried people to adopt children of the opposite gender.
Section 158 (2) of the Children's Act is against an unmarried woman adopting a boy, unless the court is satisfied that there are special circumstances to justify the adoption. The same applies to a single man seeking to adopt a baby girl.
Notably, however, judges are focusing more on the special circumstances of each adoption case so as to achieve what is in the best interest of the child.
Rosemary’s attempt to adopt a six-year-old boy had been opposed by Kirinyaga Children’s Officer Kamura Ngeke, because she was single.
She had lived with the child for three years, but when she attempted to assume parental obligations in 2017, the officer opposed the move, citing the provisions of the Children’s Act.
The officer also based his objection on the guidelines for special circumstances developed by the National Adoption Committee under the Ministry of Gender, Children and Social Development in January 2010.
Rosemary, not her real name, got divorced because she could not have children, so she applied to adopt the child.
But in his report to Kerugoya High Court Judge Lucy Gitari, the children’s officer said there were no special circumstances to warrant the adoption of Baby MJ by Rosemary.
According to the 2010 guidelines, the circumstances under which a single woman can be allowed to adopt a boy include when the child is her relative or has special needs and she is willing – and able – to take care of him.
“In a situation where the child has a special need involving a medical condition, the court has to be satisfied that the applicant is financially able to support the child. She has to demonstrate her willingness and capacity to fund the child’s medical bills, otherwise the application fails,” says lawyer Wambui Mwai.
She says another exception is where the applicant has adopted, or has a biological child or children over whom she is exercising parental responsibility. A single woman’s application can also be allowed if the child has a sibling whom she is also ready to adopt.
Other exceptions include where the applicant is the only person available to adopt the child, or if she is the legal guardian of the child or children appointed by a will, or in adoption proceedings and the parents die or become permanently incapacitated.
“The courts have to balance all the relevant factors with a bias for the rights and best interests of the child,” Mr Mwai said.
In Rosemary’s case, another issue raised by the children’s officer was that she co-owned the piece of land on which she was building a house with a certain man.
“The applicant did not explain the relationship between her and the man and what would happen to the child,” Mr Ngeke said in his report. He revealed that he had seen a social inquiry and home report by Change Trust Adoption Society approving Rosemary’s application after it considered her circumstances, but added that the circumstances were not indicated.
But Rosemary fought back, pointing out that nobody else had expressed interest in adopting the child. She also relied on a report by Mr Muteru Njama of Change Trust, which indicated that the child had stayed at the institution before being given to her.
The child was placed in Rosemary’s custody in November 2015 and had been living with her ever since.
The baby’s biological mother dumped him with another woman at a church in Nairobi in January 2015.
The woman reported the matter at the Kilimani Police Station but the police could not trace his mother. The child was about a year old then.
He was taken to New Life Home, after which he was placed in the custody of Ms Rosemary after making an application for adoption.
What worked in Rosemary’s favour was the fact that no one else had expressed interest in adopting the child.
Developed a strong bond
The judge noted that despite the objection of the children’s officer, he had noted that the child was comfortable around Rosemary’s home and that the two had developed a strong bond.
Justice Gitari noted that, while rejecting Rosemary’s application to adopt the child would have been in strict compliance with the Children’s Act, a court has the discretion to apply the principle of “the best interest of the child”.
She noted that it would not have been in the best interest of Baby MJ to disrupt his life.
“The child now knows and refers to the applicant as mother. It is in his best interest that his life should not be disrupted by returning him to a charitable home to look for an adoptive parent other than the applicant,” Justice Gitari said.
In another case, Justice Mumbi Ngugi allowed a single woman in Mumias to adopt a boy because she had a biological child she was taking care of.
The teacher has never been married.
Saying such an adoption was ordinarily not permissible under the Children’s Act, Justice Ngugi noted that no one else had expressed interest in adopting the child.
“The applicant has treated the child as she treats her own biological daughter. He was observed to be happy, healthy and active. The applicant’s biological child is reported to be happy about having a brother,” Justice Ngugi said.
A safe, stable atmosphere
Although cases involving children are highly sensitive, courts have embraced the principle of handling matters “in the best interest of the child” when ruling on child adoption applications.
The objective is to ensure children grow up in an environment where their safety is guaranteed. The principle is also used to enable courts to reach a decision based on laws that guarantee the rights of the child and promote its well-being, safety and development.
A perusal of various adoption cases shows the judges consider it is in the child’s best interest to be in a home and family set-up where they get parental guidance, emotional and social support as well as a morally enriching upbringing by a responsible parent.
Further, the rulings show every child would like to be in an environment where he or she is assured of basic necessities like food, shelter, clothing, medical care and education.
“The need for parental care, love and protection is basic for every child. Through its fulfilment, the child’s chances of survival, growth and the achievement of its full potential are assured. A family, not an institution, is the proper place for the child,” said Justice Teresiah Matheka of the High Court in Nyeri in an adoption ruling.
While allowing a 28-year-old single woman to adopt a three-year-old girl who had been abandoned by her mother outside a residential house in Nairobi, the judge said every child has a right to enjoy parental protection and care, in line with the Children’s Act.
On the gender issue imposed by Section 158(2) of the Children’s Act, Justice John Onyiego said the law should not be an impediment to the realisation of the best interests of a child.
The law prohibits a single person from adopting a child of the opposite sex, unless the court is convinced that there are special circumstances to warrant it.
But it gives courts wide discretionary powers to determine the special circumstances.
“When it comes to determining the best interest of a child, it is important to consider the evidence presented with regard to the parenting ability, that is, whether the parent applying for the adoption is genuinely able to meet the child’s physical and emotional needs, Justice Lucy Gitari said in a case that was before her recently.
On what constitutes the “best interest of a child”, the judge said it is a principle that ensures (court) decisions are made with the ultimate goal of fostering and encouraging the child’s happiness, security, mental health and emotional development into young adulthood.
In assessing the best interest of the child, she said it is incumbent upon the court to evaluate and balance all the elements necessary to make a decision in a specific situation for (a) specific child(ren). She stated that there is no standard definition of the “best interest of a child”, adding that it is determined while considering the rights of the child under the Constitution, the Children’s Act and international instruments on children’s rights.
“The determination is, therefore, a process of identifying a durable solution expected to have significant implications of the child’s present and future life. Our Constitution has recognised the paramountcy of the best interest of the child when making a decision concerning a child,” said Justice Gitari.
She referred to Article 53(2) of the Constitution, which provides that “A child’s best interests are of paramount importance in every matter concerning the child”.
Lawyer Wambui Mwai says the best interest of the child is a child’s right principle that is derived from Article -3- of the United Nations Convention on the rights of the child.
“It states that in all actions concerning children, whether undertaken by the public or private social welfare institutions, counts of law, administrative authorities or legislative bodies the best interests of the child shall be a primary consideration,” said Ms Mwai.
Among the people whose adoption applications can be rejected are those of unsound mind. “A homosexual and anyone charged and convicted by a court for offences against morality, offences involving bodily injury and any other offences under the Children’s Act may be denied an adoption order by the court,” says Ms Mwai.