INTERCOUNTRY ADOPTION


KENYA



November 2006


DISCLAIMER: The following is intended as a very general guide to assist U.S. citizens who plan to adopt a child from a foreign country and apply for an immigrant visa for the child to come to the United States. Two sets of laws are particularly relevant: 1) the laws of the child’s country of birth govern all activity in that country including the adoptability of individual children as well as the adoption of children in country in general; and 2) U.S. immigration law governs the immigration of the child to the United States.

The information in this flyer relating to the legal requirements of specific foreign countries is based on public sources and our current understanding. It does not necessarily reflect the actual state of the laws of a child’s country of birth and is provided for general information only. Moreover, U.S. immigration law, including regulations and interpretation, changes from time to time. This flyer reflects our current understanding of the law as of this date and is not legally authoritative. Questions involving foreign and U.S. immigration laws and legal interpretation should be addressed respectively to qualified foreign or U.S. legal counsel.


PLEASE NOTE:  Kenyan courts are not institutionally biased against foreigners seeking to adopt children in Kenya.  Although it still remains an issue, the courts are beginning to take a more liberal view of racial differences between prospective adoptive parents (PAPs) and the adoptive child. Kenyan courts view the welfare of the child as paramount in reviewing an adoption case. Foreigners interested in adopting a child in Kenya may wish to employ legal representation that is familiar with Kenya's legal system, as the Kenyan Department of Children’s Services and the Kenyan Regional High Court’s interpretation of adoption laws can vary widely, depending on the case.

For an IR-3 (child adopted in Kenya), the prospective adoptive parents will need to obtain an “Adoption Order” from the High Court of Kenya at Nairobi and a “Certificate of Entry in the Adopted Children Register.”  The Kenyan government is not currently allowing children to be taken from Kenya if there is any intention that they will be adopted in the United States. Therefore, the U.S. Embassy in Nairobi is not issuing IR-4 (child to be adopted in the United States) visas.
It is illegal to publish an advertisement indicating that a parent or guardian desires to place a child for adoption, that a person wishes to adopt a child, or that a person (who is not an adoption society) is willing to facilitate the adoption of a child.

Adoptive parents must submit post adoption reports on the child’s welfare (with pictures) for five years, every three months for the first 2 years immediately following the adoption and then every 6 months for the last three years.


PATTERNS OF IMMIGRATION OF ADOPTED ORPHANS TO THE U.S.: Recent U.S. immigrant visa statistics reflect the following pattern for visa issuance to Kenyan orphans:

Fiscal Year        Number of Immigrant Visas Issued

FY 2006                                       10
FY 2005                                       36
FY 2004                                       21
FY 2003                                       33
FY 2002                                       33


ADOPTION AUTHORITY IN KENYA: The government office responsible for adoptions in Kenya is the High Courts and the Department of Children’s Services. The Department of Children’s Services can provide a list of currently registered adoption societies with which PAPs may deal.

Kenyan Department of Children’s Services
P.O. Box 46205-00100
Nairobi, Kenya
Tel: 254-20-228-411 


ELIGIBILITY REQUIREMENTS FOR ADOPTIVE PARENTS:
One of the applicants must be more than 25 years old and more than 21 years older than the child and less than 65 years. The applicants can be a relative.

Adoption orders will not be granted

  • To a single foreign applicant;
  • If one or both applicants is not of sound mind, as defined by the Kenyan Mental Health Act;
  • To applicant(s) who have been charged and convicted by a court of competent jurisdiction for or of any offence against children under Kenyan laws.  (Note: USCIS also requires a criminal background check to be done on all petitioners and may find families ineligible as well);
  • To gay and lesbian individuals or couples;
  • To joint applicants not married to each other.


 
RESIDENCY REQUIREMENTS: Adopting parents must reside in Kenya with the child for at least three months before legal procedures begin.  Although some legal adoption steps can be initiated before the three months period has been completed, most of the legal work will only begin after the three month “homestay” with the child is finished.


TIME FRAME:  Bearing in mind that the adopting couple must reside in Kenya with the child for at least three months before the legal procedure begins, the average length of the adoption process is about six months, including the three month residency requirement. 

All adoption orders are finalized in Kenya prior to applicant’s leaving the country and upon their fulfilling all the requirements listed below.


ADOPTION AGENCIES AND ATTORNEYS:  The U.S. Embassy in Nairobi maintains a list of attorneys, but is not aware of any specializing specifically in adoptions.  The attorneys list can be found on the U.S. Embassy website at http://nairobi.usembassy.gov/ under the Consular Section tab.

Prospective adoptive parents are advised to fully research any adoption agency or facilitator they plan to use for adoption services.  Families can contact Kenyan Department of Children’s Services at Tel: (254) (20) 228-411 for a list of registered Kenyan adoption agencies.  These agencies will assist with identifying a suitable child for adoption and can sometimes assist in some of the legal proceedings.  For U.S.-based agencies, it is suggested that prospective adoptive parents contact the Better Business Bureau and/or the licensing office of the appropriate state government agency in the U.S. state where the agency is located or licensed.  Please see Important Notice Regarding Adoption Agents and Facilitators at the Department of State Bureau of Consular Affairs web site travel.state.gov.


ADOPTION FEES IN KENYA: Kenyan law prohibits financial transactions between individuals involved in an adoption proceeding. Some payments are permitted, for example, to an adoption society for maintenance of the child, or to an attorney who acts for any of the parties or in connection with an application for an adoption order. Any payment or reward made by a prospective adoptive parent or guardian of a child or a third party facilitating the adoption for the purpose of making an adoption order, is considered illegal.


ADOPTION PROCEDURES: Following are the adoption procedures and requirements for adopting a child in Kenya. 

Note:  These are the official regulations published by the Department of Children’s Services.  The U.S. State Department cannot vouch for how strictly these requirements are enforced by Department of Children’s Services or the High Courts.  There have been many recent changes in the level of scrutiny that the Department of Children’s Services and the High Courts have been giving to intercountry adoptions cases, which have significantly slowed the processing of many pending cases.)


PREREQUISITES:

  1. Child(ren) must be at least 6 weeks old and declared free for adoption by a registered adoption society;
  2. Any child who is resident in Kenya must be legally adopted whether or not the child is a Kenyan citizen or was born in Kenya;
  3. The adoption order cannot be granted unless the child concerned has been in the continuous care of the prospective adoptive couple for more than three consecutive months preceding the filling of the applications and both the child and the applicant(s) may be evaluated and assessed by a registered adoption society in Kenya;
  4. One of the applicants must be more than 25 years of age and less than 65 years of age, and more than 21 years older than the child. The applicants can be relatives.
  5. Adoption orders will not be done
    • For a single foreign applicant (unless there are extenuating circumstances);
    •  If one or both applicants is not of sound mind, as defined by the Kenyan Mental Health Act;
    • For applicant(s) who have been charged and convicted by a court of competent jurisdiction for or of any offence against children under Kenyan laws;
    • For gay or lesbian individuals or couples;
    • For joint applicants not married to each other.


CONSENT MUST BE OBTAINED AS FOLLOWS: 

  1. If applicable, from existing parents, guardians or any one else contributing to the maintenance of the child under any agreement or order; 
  2. If applicable, from parents or guardian(s) of the mother of the child in a case where the mother is a minor;
  3. If applicable, from the step-father who has acquired parental responsibility
  4. From the spouse of the prospective adoptive parent, if the spouse is not available in person.
  5. In case of foreigners not residing in Kenya, the consent of a competent jurisdiction or a government authority situated in the country where both or one of the spouses ordinarily resides, permitting the spouses to adopt a foreign child.  (Note: An approved I-600A or I-600 is usually acceptable);
  6. In case of a child who has attained the age of 14 years, the consent of the child.


 
GUARDIAN AD LITEM:  A guardian ad litem will be appointed by the court for the child pending the hearing and determination of the adoption application.

Duties of the Guardian Ad Litem

  1. Safeguard the interests of the child pending the determination of the adoption proceedings;
  2. Investigate and appraise the court as to the circumstances pertinent to the adoption of the child in the prescribed manner;
  3. Make recommendations as to the priority of making any interim orders or an adoption order in respect of the child;
  4. Intervene on behalf of the child and arrange for the care of the child in the event of the withdrawal of any consent;
  5. Undertake such duties as the court may direct. 



Where arrangements for adoption of any child have been made by the Child Welfare Society of Kenya, neither the society nor any member thereof shall be appointed Guardian Ad Litem of the same child.

The appointment of a Guardian Ad Litem expires upon the making of a final adoption order by the court.

The couple must satisfy the court that the country where they ordinarily reside and where they expect to reside with the child immediately after adoption will respect and recognize the adoption order and will grant resident status to the child. (Note:  An approved I-600A or I-600 should be sufficient to meet this requirement.  However, the High Courts have had additional concerns regarding this requirement and at the time of this revision, it has sometimes caused significant delays.)

The couple must have been authorized and recommended as persons who are suitable (including being morally fit and financially capable) to adopt a foreign child by a competent government authority or court of competent jurisdiction in the country where they expect to reside with the child immediately following the making of the adoption order.  (Note: Submission of the U.S. home study approval has often, but not always, been allowed to meet this requirement.) 

The court may impose such terms and conditions as it deems fit:

  1. Require the adopter by bond or otherwise to make for the child such provision as in the opinion of the court just and expedient;
  2. Require the adopter to accept supervision by and advice from an adoption society specified by the court for such period as the court may specify;
  3. Where the consent to the making of an adoption order is conditioned upon the child being brought up in a particular religious persuasion, require the infant to be brought up in that persuasion;
  4. Where the adopter is not a resident of Kenya, require him/her to avail such periodical reports from a court of competent authority in the adopters’ country of residence for such period as the Kenyan court may specify.  (Note: The U.S. Embassy in Kenya is not aware of what might be asked of the adoptive parent to meet this requirement or if the government asks for any additional documents.)   



HOME STUDY: PROCEDURE TO BE FOLLOWED:
Every foreigner wishing to adopt a child should be sponsored by a social or child welfare agency recognized or licensed by the Government of the country in which the foreigner is resident.  Families can contact Kenyan Department of Children’s Services at Tel: (254) (20) 228-411 for a list of registered Kenyan adoption agencies.  

The Home Study must include the following information:

  • Social status and family background;
  • Description of home including the number of bedrooms and whether it can comfortably accommodate the child;
  • Standard of living as it appears in the home;
  • Current relationship between husband and wife;
  • Current relationship between the parents and children (if any children);
  • Development of previously adopted children (if any);
  • Current relationship between the couple and the members of each others family;
  • Employment status of the couple;
  • Health details such as clinical tests, past illnesses etc., (medical certificates);
  • Economic status of the couple;
  • Accommodation for the child;
  • Schooling facilities;
  • Amenities in the home;
  • Reasons for wanting to adopt a Kenyan child;
  • Attitudes of relatives towards adoption;
  • Anticipated plans for the adoptive child;
  • Legal status of the prospective adoptive parents.


 
DOCUMENTS REQUIRED FOR ADOPTION IN KENYA:

  • Home study report of the adoptive parents prepared by a professional social worker;
  • Recent photographs of the adoptive family;
  • Marriage certificate of adoptive parents;
  • Declaration concerning health of adoptive parents;
  • Certificate of medical fitness of adoptive parents duly certified by a medical doctor; (Note: The approved I-600A or I-600 has been accepted as proof of medical fitness in the past.)
  • Declaration regarding financial status of foreign adoptive parents along with supporting documents including employers’ certificate, where applicable;
  • Employment certificate of adoptive parents, where applicable;
  • Income tax records of adoptive parents;
  • Bank references;
  • Particulars of property owned by the adoptive parents;
  • Declaration from adoptive parents stating willingness to adopt the child;
  • Undertaking from the social or child welfare enlisted agency sponsoring the foreigner to the effect that child would be legally recognized as a citizen of the adoptive parent’s country without any form of discrimination and that the child would be entitled to the same rights as citizens of that country;
  • Undertaking from the adoptive parents that adopted child would be provided necessary education and upbringing according to the status of adoptive parents;
  • Undertaking from the social and child welfare enlisted agency that a report relating to progress of the child, along with his/her recent photograph, will be sent to Child Welfare Society of Kenya every three months during first two years, and every six months for the next three years, for a total of five years;
  • Power of Attorney from adoptive parents in favor of Child Welfare Society of Kenya which will be required to process the case and such Power of Attorney should authorize the Attorney to handle the cases on behalf of the foreigner in case the foreigner is not in a position to come to Kenya during the initial stages of the adoption. (Note: Kenyan law requires that both the minor being adopted and the adoptive parents MUST be resident in Kenya for at least three consecutive months before the legal process begins and both MUST also be present during the court hearing for the adoption);
  • Certificate from the enlisted social or child welfare agency sponsoring the application of the foreigner to the effect that the prospective adoptive parents are permitted to adopt a child according to the laws of their country.  (Note:  An approved I-600A or I-600 should be sufficient to meet this requirement.  However, the High Courts have had additional concerns regarding this requirement and, at the time of this revision, it has sometimes caused significant delays.)


AUTHENTICATING U.S. DOCUMENTS TO BE USED ABROAD:  The language describing the process of authenticating U.S. documents to be used abroad is currently under review. Please click on the following link for more information until the new language is finalized: http://www.travel.state.gov/law/info/judicial/judicial_701.html.


KENYAN EMBASSY AND CONSULATES IN THE UNITED STATES:

Embassy of the Republic of Kenya
2249 R Street, N.W. Washington, D.C. 20008
Telephone: (202) 387-6101
Fax: (202) 462-3829
e-mail: information@kenyaembassy.com
http://www.kenyaembassy.com/

Kenya also has Consulates General in Los Angeles and New York.


U.S. IMMIGRATION REQUIREMENTS:  Prospective adopting parents are strongly encouraged to consult the USCIS publication M-249, The Immigration of Adoptive and Prospective Adoptive Children, as well as the Department of State publication, International Adoption. The USCIS publication is available at the USCIS web site.  The Department of State publication International Adoption can be found on the Bureau of Consular Affairs web site, travel.state.gov, under “International Adoption.”

Before completing an adoption abroad, prospective adoptive parents are strongly encouraged to read the requirements for filing Form I-600, Petition to Classify Orphan as an Immediate Relative.  Please see the flyer “How Can Adopted Children Come to the United States” at the U.S. Department of State, Bureau of Consular Affairs web site travel.state.gov.


U.S. EMBASSY IN KENYA: Americans living or traveling abroad are encouraged to register with the nearest U.S. Embassy or Consulate through the State Department’s travel registration website, https://travelregistration.state.gov/, and to obtain updated information on travel and security within the country of travel.  Americans without Internet access may register directly with the nearest U.S. Embassy or Consulate.  By registering, American citizens make it easier for the Embassy or Consulate to contact them in case of emergency. 

The Consular Section is located at: UN Avenue off Limuru Road in the neighborhood of Gigiri.  The Embassy’s postal address is:

Consular Section
U.S. Embassy
P.O. Box 606
Village Market
00621 Nairobi, Kenya

Tel: (254) (20) 375-3704 or (20)-363-6492
Fax: (254) (20) 363-6410
E-mail:  NairobiIVDV@state.gov
Website:  Nairobi.usembassy.gov


APPLYING FOR A VISA AT THE U.S. EMBASSY IN NAIROBI:  Prospective adoptive parents will need to first have DHS/UCSCIS approve either a Form I-600, “Petition To Classify Orphan As an Immediate Relative”  (http://uscis.gov/graphics/formsfee/forms/i-600.htm) or a Form I-600A, “Application for Advance Processing of Orphan Petition” (http://uscis.gov/graphics/formsfee/forms/i-600a.htm), in the United States.  If resident in Kenya, adoptive parents should call the Nairobi DHS-USCIS office at 363-6111 to schedule an interview.

If adoptive parents already have an approved I-600 form they should contact the consular section at (country code 254) 20-363-6492 to schedule an interview.  Parents will need to first to pick up a medical exam form from the Consular Section that will need to be completed by a physician in Nairobi certified by the embassy to perform exams. 

If adoptive parents have an approved I-600A form then they will need to first contact Nairobi DHS-USCIS office at 363-6111 schedule an interview to get an approved I-600.  After DHS approves the I-600, then adoptive parents can contact the consular section to arrange the immigrant visa interview as outlined above.

NOTE: As long as the adoptive parents have all of their documents in order, the consular section can issue a visa in around 48 hours. 


ACQUIRING U.S. CITIZENSHIP: The language describing the acquisition of U.S. citizenship for adopted children is currently under review. Until the new language is finalized, please click on the following link for further information: http://travel.state.gov/family/adoption/info/info_457.html.


ADDITIONAL INFORMATION: Specific questions about adoption in Kenya may be addressed to the U.S. Embassy in Nairobi. General questions regarding intercountry adoption may be addressed to the Office of Children’s Issues, U.S. Department of State, CA/OCS/CI, SA-29, 4th Floor, 2201 C Street, NW, Washington, D.C. 20520-4818, toll-free Tel: 1-888-407-4747.

Useful information is also available from several other sources:

Telephone:
• Toll Free - For information on intercountry adoption and international parental child abduction, call Overseas Citizens Services at 1-888-407-4747. This number is available from 8:00 a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday (except U.S. federal holidays). Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-202-501-4444.
• U.S. Department of State Visa Office - recorded information concerning immigrant visas for adopting children, (202) 663-1225.
• U.S. Citizenship and Immigration Services - recorded information for requesting immigrant visa application forms, 1-800-870-FORM (3676).

Internet :
• Adoption Information Flyers: The U.S. Department of State, Bureau of Consular Affairs web site at: http://travel.state.gov/ contains intercountry adoption information flyers like this one and the International Adoptions brochure.
• Country Specific Information: The State Department has general information about hiring a foreign attorney and authenticating documents that may supplement the country-specific information provided in this flyer. In addition, the State Department publishes Country Specific Information for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. If the situation in a country poses a specific threat to the safety and security of American citizens that is not addressed in the CSI for that country, the State Department may issue a Travel Alert alerting U.S. citizens to local security situations. If conditions in a country are sufficiently serious, the State Department may issue a Travel Warning recommending that U.S. citizens avoid traveling to that country. These documents are available on the Internet at: http://travel.state.gov/ or by calling the State Department's Office of Overseas Citizen Services Toll Free at 1-888-407-4747. This number is available from 8:00 a.m. to 8:00 p.m. Eastern Time, Monday through Friday (except U.S. federal holidays). Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-202-501-4444.
• USCIS web site - http://uscis.gov/ .