IN THE MATTER OF BABY S (MINOR) [2011] KEHC 1392 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ADOPTION CAUSE NO.48 OF 2011 (O. S.)

IN THE MATTER OF THE CHILDREN ACT, 2001

AND

IN THE MATTER OF BABY S – MINOR

A.A.M. R……………………………...............................…......................1ST APPLICANT

H.C.G. B…………………………………………..….…………………..2ND APPLICANT

J U D G M E N T

1. The Applicants herein seek orders by the Originating Summons dated 21st March 2011, under Sections 154, 156, 158(1)(a) and 4(c), 159(1), 160, 163(1), 164 and 170 and all other enabling Provisions of the Children’s Act, 2001 and Rule 8(a) of the Adoption Rules that one, E.M.K, be appointed Guardian ad Litem and that the Director – Children’s Department be ordered to file a report on the Applicants’ fitness to adopt the child, baby S, before any adoption order can be made.

2. I note that a Guardian ad Litem was appointed on 8th April 2011 by Kimaru J. and the report by the Director of the Children’s Department in the Ministry of Gender, Children and Social Development was filed on 23rd May 2011. The only issue left to address at this point is whether the Applicant should be granted orders to adopt the child, subject of these proceedings.

3. I have had occasion to read the following documents;

(i)An Affidavit sworn on 21st March 2011 by the Applicants, jointly.

(ii)A Statement of Facts dated 21st March 2011 by the Applicants, jointly.

4. The gist of both documents is that the Applicants were born on 27th January 1970 and 27th February 1968, respectively, in The Netherlands, and 1st Applicant now works in the Ministry of Finance and the 2nd Applicant in the Ministry of Justice of that Country respectively.

5. Further, that the child was born on or around 23rd October 2009 but was abandoned in Gitathuru, Mathare on the same day.

6. Apart from the two documents cited above, I have also read a Report by the Council for Child Welfare at Breda, Netherlands dated 17th April 2009 and in the Report, the Applicants are said to be fit adoptive parents. The Kenya National Adoption Committee has also approved their application for adoption of a Kenyan child and by letter dated 3rd August 2010, the Director, Little Angels network was informed of that fact.

7. The Director of Children’s Services in the Ministry of Gender, Children and Social Development by a Report dated 23rd May 2011 has also recommended that the Applicants be granted orders to adopt the child.

8. Apart from all the above, Little Angels Network by a report dated 7th April 2011, has declared that the child is free for adoption pursuant to Section 156(1) of the Children’s Act.

9. With the above background in mind, I also wish to add that when I heard the Originating Summons, Mr. Mwenda for the Applicants stated that  the Applicants had met the criteria set for international adoption and I also find that in the present case, the Applicants have met the following conditions;

(i)they have received the relevant approvals from the relevant authorities in The Netherlands,

(ii)the child in this case is under the age of eighteen (18) years and can be adopted,

(iii) the child’s best interests would be served if the Applicants take care and custody of her as her parents are unknown and the Applicants have shown that they are able to give her a better life upon the orders now sought being issued. The Applicants have also shown that they will be able to acquire residence and/or citizenship for the child in The Netherlands to her betterment,

(iv)J.J.R.D.C and A.A.J.B will be the child’s Legal Guardians in the event that any misfortune should befall the Applicants.

10. With that factual background, I should only restate the law as regards the issue at hand before granting the orders sought. Section 162 of the Children’s Act clothes the court with discretion to make an international adoption order if it is satisfied that the conditions set out therein have been met and I have said the Applicants herein have done so.

11. In the end, I will order as follows;

(i)A.A.M.R and H.C.G.B are authorized by this court to adopt Baby S and the child shall henceforth be known as S.A. M. R

(ii)J.J.R..D.C and A. A.J.B are hereby appointed the Legal Guardians of the child should misfortune befall the Applicants.

(iii) The Registrar General is hereby directed to enter this order in the Adoption Register.

(iv)The Guardian ad Litem is hereby discharged of any responsibilities over the child.

(v)I shall move no order as to costs.

12. Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF JULY, 2011

I.LENAOLA

JUDGE

CORAM

I. LENAOLA – JUDGE

Court Clerk – David

Mr. Mwenda for Applicants

ORDER

Judgment duly delivered.

I.LENAOLA

JUDGE