Section 187 of The Children Act CAP 141: Power to dispense with consent
(1) The Court may dispense with any consent required under section 186(8) paragraphs (a), (b) and (c) if the Court is satisfied that—(a) in the case of the parent or guardian of the child, the parent or guardian has abandoned, neglected, persistently failed to maintain or persistently ill-treated the child;
(b) in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the child, that person has persistently neglected or refused to make contribution in accordance with the order; or
(c) in any other case, except in respect of the consents required under section 186(8)(c) and (9), the person whose consent is required cannot be found or is incapable of giving his or her consent, or that his or her consent has been unreasonably withheld.
(2) Without prejudice to the generality of subsection (1)(a)—
(a) abandonment shall be presumed in any case where the child appears to have been abandoned at birth, or if the person or, where the institution having care and possession of the child, that institution has lost all contact with a parent or guardian of the child for a period exceeding one year; and
(b) persistent failure to maintain the child may be presumed where, despite demands made, no parent or guardian has contributed to the maintenance of the child for a cumulative period of one year.
(3) The Court may dispense with the consent of the spouse of the applicantfor an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving consent, or that the spouses have separated or divorced and are living apart, and that such separation is likely to be permanent.
(4) The consent of any person to the making of an adoption order in pursuanceof an application under this Part may be given, either unconditionally or subject to conditions with respect to the religious persuasion in which the child is to be brought up, without knowing the identity of the applicant for the order, and where the consent given by any person is subsequently withdrawn on the grounds only that he or she does not know the identity of the applicant, the consent shall be deemed as being unreasonably withheld.
(5) In considering whether or not to dispense with the consent required underthis section, the Court shall regard the interests of the child as paramount and, subject thereto, give priority to the interests of the parents, guardians or relatives of the child over those of the applicants.
(6) Any person by whom consent is given under this Part may withdraw his orher consent either—
(a) without leave of the Court; or
(b) with leave of the Court at any time after the filing of the application for an adoption order, but prior to the making of the order.
(7) Any person whose consent to the making of an adoption order is requiredunder section 189 may either—
(a) attend Court at the adoption proceedings for the purpose of giving oral evidence in relation to his or her consent; or
(b) deliver to the Court a declaration made on oath and attested by a duly qualified legal practitioner, judicial officer or such other person as may be specified in regulations, confirming the deponents consent in that regard.
(8) In the absence of any evidence to the contrary, a document made in oroutside Kenya signifying consent given under this section, shall be admissible in evidence only if—
(a) the document is duly executed by the person making it; and
(b) the signature of the maker is duly attested and the document notarized and duly certified as a true copy of the original.
(9) A document signifying the consent of the mother of a child shall not beadmissible under this section unless—
(a) the child was at least six weeks old on the date on which the document was executed; and
(b) the document is duly attested by any of the persons specified in subsection (7)(b).
Enhance Your Research with Bookmarks and Annotations
Here's how you can use these features:
- To bookmark this page, click the "Bookmark this Page" button below the document title.
- To add an annotation, highlight text in the document and select "Add Annotation" from the toolbar that appears.
- These features are great for organizing your research and keeping track of key information.
- You can view and manage your bookmarks and annotations on your Bookmarks and Annotations page.
- Section 188 - Appointment of guardian ad litem for purposes of adoption
(1) Where an application is made for an adoption order, the Court shall, eitherof its own motion or on application by any party to the proceedings, make an order appointing a fit person to be guardian...
- Section 189 - Interim orders
(1) Where an application for an adoption order is pending in Court—
(a) any person who has consented to the adoption shall not be entitled, except with leave of the Court, to remove the child from...
- Section 190 - Review of adoption
(1) A person who is a biological parent of a child in respect of whom an adoption order has been granted by a Court may apply to the Court for review of the order for adoption on grounds...
- Section 191 - Inter-country adoptions
The Court may make an adoption order in respect of a child on the joint application of two spouses who are not citizens or residents of Kenya, in this Act referred to as an "inter-country adoption",...
- Section 192 - Adoption by non-resident Kenyans
The requirements of section 191 shall apply to adoption by— (a) citizens of Kenya who are not ordinarily resident in Kenya;
(b) citizens of Kenya who have dual citizenship, but who are not ordinarily...
- Section 193 - Kinship Adoption
(1) A kinship adoption order may only be made in favour of a relative of the child.
(2) The Cabinet Secretary may make regulations to give effect to this Part.
- Section 194 - Powers of the Court in adoption proceedings
(1) Before making an adoption order, the Court shall inquire into and be satisfied on evidence before it that—
(a) every person whose consent is required under this Part, which consent has not been...
- Section 195 - Power of the Court to appoint guardian
(1) At the time of making an adoption order in a domestic or inter-countryadoption, the Court may, either of its own motion or on application by the adopter or joint adopters, appoint a guardian of...
- Section 196 - Adoption order in respect of children previously adopted
(1) The Court may make an adoption order or an interim adoption order inrespect of a child who has previously been the subject of an adoption order under this Act or any other written law in any...
- Section 197 - Parental responsibility when adoption is denied
If the Court declines to make an adoption order, the Court may make such order in respect of parental responsibilities over the child as the Court may consider fit.
- Section 198 - Appeals
Any person aggrieved by an order of the Court relating to an application for an adoption order, or an order relating to parental responsibility over a child made under this Part, may appeal to the...
- Section 199 - Variation of orders
(1) The Court which makes an adoption order may, on the application of the adopter, vary the order to correct any defect in the particulars contained therein and direct that the varied order be lodged...
- Section 200 - Adopted Children Register
(1) The Registrar shall maintain an Adopted Children Register and shall makesuch entries as the court may direct.
(2) A certified copy of an entry in the Adopted Children Register that is sealedor...
- Section 201 - Registration of adoption orders
(1) Every adoption order made by the Court shall contain a direction to the Registrar to make an entry in the Adopted Children Register in the prescribed form.
(2) For the purposes of compliance with...
- Section 202 - Rights and duties of parents and capacity to marry
(1) Upon an adoption order being made, all rights, duties, obligations and liabilities of the biological parents in case of a first adoption or adoptive parents in case of subsequent adoption or...
- Section 203 - Application of Work Injury Benefits Act
For the purposes of the Work Injury Benefits Act, a child whom a deceased employee had been authorised to adopt under an adoption order shall be deemed to be a member of the family of the employee,...
- Section 204 - Orders and agreements in respect of child born outside marriage
(1) Where an adoption order is made in respect of a child previously committedto the care of foster parents, a voluntary children’s institution, a children’s institution, or a rehabilitation school by...
- Section 205 - Intestacies and testamentary instruments
(1) Where at any time after the making of an adoption order the adopter or the adopted child or any other person dies intestate in respect of any movable or immovable property, the property shall...
- Section 206 - Provisions supplementary to section 196
(1) For the purpose of the application of any written law for the time being in force relating to the devolution of any property in accordance with section 205, and for purposes of the construction of...
- Section 207 - Effect of inter-country adoptions
(1) Where a child has been adopted, whether before or after the commencement of this Act, in any place, and the adoption is one to which this section and other written laws apply, the adoption shall...
- Section 208 - Restriction on adoption arrangements
(1) No adoption agency, institution, individual or public officer may make or facilitate the making of any arrangements for the adoption of a child under this Act unless the agency or institution is...
- Section 209 - Certain offences relating to adoption
(1) A person or association, whether incorporated or unincorporated) shall notwillfully and without lawful justification take part in or facilitate the adoption of a child unless the association is...
- Section 210 - Functions of adoption societies
The functions of an adoption society shall be—
(a) to make such inquiries and investigations, and to cause such reports as shall be prescribed or as the Court may direct, to be obtained for the...
- Section 211 - Adoption proceedings to be confidential
(1) A member or officer of an adoption society, and a person having any official duty under or being employed in the administration of this Act, shall regard and deal with all documents and...
- Section 212 - Prohibition of certain payments
(1) Subject to subsection (2)—
(a) any adopter or any parent or guardian of a child who receives any payment or other reward in consideration of the adoption of a child under this Act; or
(b) any...
- Section 213 - Restriction on advertisement
(1) A person shall not knowingly publish or cause to be advertised any matter indicating that—
(a) a parent or guardian of a child wishes to give up the child for adoption;
(b) a person wishes to...
- Section 214 - Offences under this Part
Where any offence under any regulations made under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on...
- Section 215 - Regulations
The Cabinet Secretary shall make regulations for the better carrying into effect the provisions of this Part, and, without prejudice to the generality of this section, for any of the following...
- Section 216 - Rules of Court
The Chief Justice may make rules of Court directing the manner in which applications may be made and judicial proceedings undertaken under this Part.
- Section 217 - Application of Criminal Procedure Code
(1) Notwithstanding the provisions of Part II of the Criminal Procedure Code, aChildren’s Court may try a child for any offence except the offence of murder.
(2) Reference to Subordinate Courts of...
- Section 218 - Assessment of a child on arrest
(1) A police officer who arrests, serves a summons or issues with a written notice to child shall notify the parent or guardian of the child and the Secretary or an authorised officer within twenty...
- Section 219 - Power to remit cases to Children’s Court
(1) Subject to any rules or directions made or issued by the Chief Justice, where it appears to a court, other than a Children’s Court, at any stage of the proceedings that a child is charged before...
- Section 220 - Rights of a child offender
(1) A child offender has the right to privacy during arrest, the investigation ofthe offence and at any other stage of the cause of the matter.
(2) A person shall not in the course of arrest,...
- Section 221 - Criminal liability of a child
(1) A person under the age of twelve years shall not be criminally responsiblefor any act or omission.
(2) A child who commits an offence while under the age of fourteen years shallbe presumed not to...
- Section 222 - Right of a child to be heard in proceedings
(1) Every child shall be afforded an opportunity to be heard in proceedings affecting the child, either directly or through a representative.
(2) Pursuant to the provisions of Article 50 of the...
- Section 223 - Detention of children
(1) Institutionalization and detention of children in conflict with the law pending trial shall be used as a means of last resort, and detention pending trial shall, as far as is reasonably...
- Section 224 - Procedure in cases of children in conflict with the law
A child in conflict with the law may be subjected to either of the following processes—
(a) diversion in accordance with this Act; or
(b) judicial process in accordance with the Criminal Procedure...
- Section 225 - Consideration of welfare
(1) Every court in dealing with a child who is brought before it shall have regardto the best interests of the child and shall, in a proper case take steps for removing him or her from undesirable...
- Section 226 - Objects of diversion
The objects of diversion shall be to—
(a) make use of alternative methods of holding children accountable for their unlawful acts or omissions resulting in harm to other persons;
(b) promote the...
- Section 227 - When to consider diversion
(1) Notwithstanding any provision of this Act or any other written law, any authorised officer or judicial officer dealing with any matter in which a child is suspected of, or charged with, the...
- Section 228 - Preliminary inquiry
(1) A preliminary inquiry shall be held in respect of every child prior to plea in accordance with rules made under this section, except where the child is below the age of twelve years, or the matter...
- Section 229 - Determination of a child’s age
If the age of a child is uncertain, the magistrate shall estimate the child’s age based on—
(a) a previous determination of age by a magistrate under this Act or any other written...
- Section 230 - Levels of diversion
(1) The Magistrate conducting the preliminary inquiry contemplated undersection 228 may apply any of the diversion options under this section to a child who is eligible for diversion.
(2) There shall...
- Section 231 - Power of Court in diversion
Upon ordering diversion, the magistrate conducting the inquiry or proceedings shall identify a children’s officer, a probation officer, or any other suitable person to monitor the child's compliance...
- Section 232 - Family Group Conference
(1) If a child has been referred to appear at a family group conference, a children officer appointed by the magistrate conducting the inquiry shall, within at least fourteen days, but not more than...
- Section 233 - Assistance to child offender in court
The Children’s Court shall at the commencement of the proceedings in court, inform the child in a language that the child understands of—
(a) the right to remain silent;
(b) the right to have a...
- Section 234 - Rules
The Chief Justice shall make Court rules of practice and procedure in diversion.
- Section 235 - Guarantees to a child accused of an offence
Every child accused of having violated any rule of law shall—
(a) be promptly and directly informed of the charges against him or her;
(b) be provided by the state with legal assistance in the...
- Section 236 - Duty to provide for the welfare of a child
(1) In dealing with a child brought before it, the Court shall have regard to thebest interest of the child, and shall take appropriate steps to remove the child from any undesirable surroundings, and...
- Section 237 - Words "conviction" and "sentence" not to be used of child
(1) The words "conviction" and "sentence" shall not be used in relation to achild being dealt with by the Children’s Court.
(2) Without prejudice to the generality of subsection (1), any reference in...