The Employment (Amendment) Act, 2021 entitles adoptive parents to “one month’s pre-adoptive leave, with full pay, from the date of placement of the child”. This leave is in addition to the employee’s annual leave which means that an employee can still enjoy their annual leave, like all other employees, and may apply for this pre-adoptive leave as an added employment benefit.
To appreciate amendments to the Employment Act, 2021 on pre-adoptive leave, maybe we need to understand the process of adoption in Kenya.
Adoption Laws, Eligibility and Requirements for Adopting a Child in Kenya
Adoption is governed by the Children Act, 2001. It’s a long laundry list so grab a snack, take a breath, and here goes:
- The child must be at least six weeks old
- The child must be declared available for adoption by either the national adoption society or a registered adoption society
- The child should be resident in Kenya. This refers to physical residence even if the child is not a Kenyan citizen or was born outside Kenya
- The proposed parent must be legally capable (he, she or they must be capable of fulfilling the terms of an adoption order)
- Before the proposed parent/ parents file an application for adoption, the child should be in their control and care for at least three months AND the parent/ parents should thereafter be evaluated and assessed by either the national adoption society or a registered adoption society
Is your mind reeling yet? Here’s your checklist before you propose to adopt a child in Kenya – you can be single or adopt jointly with your spouse and at least one of you should:
- Be at least 25 years old or at least 21 years older than the child you want to adopt
- Not be 65 years old or more
- Can be a relative of the child (the Kenyans among you know that the term relative is … relative)
- Can be the birth-mother or birth-father of the child (simply put, this means that you can adopt your spouse’s children if they are not your natural-born children)
Maybe you’ve ticked all these boxes? Your chances are looking good so far? Well, here’s what might disqualify you from adopting a child in Kenya:
- You are not of sound mind within the meaning of Kenya’s Mental Health Act
- You have previously been charged and convicted for any of the offences set out in the Children Act, 2001 or similar offences: mainly criminal offences, offences against children and offences involving bodily injury
- You are in a same-sex relationship
- In the case of joint applicants, if you are not married to each other
- You are a sole foreign male applicant
Ultimately, even if you satisfy all these criteria, the court may refuse to make an adoption order if it is satisfied for any reason that it would not be in the best interests of the welfare of the child to do so.
Let’s assume that you’re good to go and are ready to apply to adopt a child. You will need to submit these written consents to the court:
- The consent of every person who is a parent or guardian of the child or who is legally required to contribute to the maintenance of the child
- A child born out of wedlock and whose mother is a child: The consent of the parents or guardian of the mother of the child;
- A child born out of wedlock whose father has acquired parental responsibility: The consent of the father
- Application of one spouse: The consent of the other spouse;
- Two spouses who are not Kenyan citizens and who are not resident in Kenya: The consent of a competent court or government authority in the country where one or both of the spouses is ordinarily resident permitting the spouses to adopt a foreign child;
- A child who has attained the age of 14 years: The consent of the child.
The Kenyan courts may dispense with any of these requirements as to consent in certain circumstances that are spelt out in the Children Act, 2001.
These requirements for the adoption of children in Kenya may seem onerous and taxing, maybe even downright impossible for some applicants, but they must be understood in the light of two critical issues:
- Firstly, the rights of children as spelt out in the United Nations Convention on the Rights of the Child and in the Constitution of Kenya, 2010
- Secondly, the escalating threats to the rights of children across the globe and witnessed in all communities and across all news platforms. In countries such as Kenya, there are the added threats of child sex tourism and child trafficking.
In a nutshell, adoption is not taken lightly by the Kenyan courts. Indeed, the Children Act, 2001 and the regulations on adoption have been amended from time to time to protect and promote the ultimate welfare of the child.
The welfare of the child is king.
After all, is said and done, a successful applicant can heave a much-deserved sigh. With all lists checked, all requirements met, court dates survived and – finally – baby/child on board!
Congratulations welcome to the world of parenting!
Now, there’s that lingering question of taking time off work to settle your child in and to make sure that they are adjusting to their new environment.
What Is Pre-Adoptive Leave?
Having gone through the requirements for adoption, what is the Employment Act, 2021 interpretation on pre-adoptive leave? Does it kick in during the three months test period that the law requires in order to determine whether you and the child are a good fit (i.e. the “foster care placement” period)? Or does it apply when the courts determine that you are a good fit and grants you an adoption certificate?
A general, non-legal interpretation of “pre-adoptive leave” would imply that you are entitled to this leave during the period before you conclude all the formalities for adopting a child.
Sounds simple and straightforward enough, but let us explore the law just to confirm our understanding.
Under the Children Act, 2001 an adoption order shall only be made where the child concerned has been in the “continuous care and control of the applicant within the Republic for a period of three consecutive months preceding the filing of the application and both the child and the applicant or applicants [have been] evaluated and assessed by the national adoption society or any other registered adoption society in Kenya”.
The amendment in the Employment Act, borrows the language of the Children Act, 2001 and talks about “continuous care and control of an applicant”. This phrase, when used in the Children Act, 2001 refers to the “foster care placement” period of three months when a child is placed in the care of the applicant/applicants. The purpose of this placement period is to help the applicant/ applicants and the adoption society figure out the chemistry between the child and the prospective parents/ parents.
What this means for any prospective adoptive parent, is that “pre-adoptive leave” is applicable during the adoption journey rather than after the adoption journey.
When Should an Employee Apply For Pre-Adoptive Leave?
Now that we understand the concept of pre-adoptive leave, at what point should an employee apply for it? Looking back at the checklist of requirements for adoption, you will remember that an applicant will go back and forth with the adoption society and the courts to meet each of these requirements at various stages of the journey.
It is really important to maintain regular and timely communication with the adoption society to enable you to apply for pre-adoptive leave at just the right time: not too early before the adoption society is ready to place the child in your care, and not too late to hinder your employer’s approval of leave.
Once you have confirmation of a placement date from the adoption society, then you can go ahead and apply for leave at least two weeks before the placement date.
How Should an Employee Apply For Pre-Adoptive Leave?
In order to apply for this leave, an employee is required to:
- Write to their employer at least two weeks prior to the child’s placement with the employee
- Submit supporting documents to their employer
- Supporting documents include a custody agreement (with the adoption society) and an exit certificate (certificate from the adoption society allowing the applicant to take the child home)
How Long Is Pre-Adoptive Leave?
The Employment (Amendment) Act, 2021 grants an employee “one month’s pre-adoptive leave with full pay from the date of placement of the child”.
This raises questions as to the sufficiency of the leave. It is quite common for adoptive parents to adopt children of a variety of ages ranging from newborn babies to pre-teens. Is there any opportunity for prospective adoptive parents to take time off work in order to satisfy the “foster care placement” period of three months? The Employment (Amendment) Act, 2021 certainly does not provide this opportunity. Perhaps partially – a good start?
Even if the three-month requirement was not embedded in law, when do adoptive parents get to spend those quality early days with their children and start to build a relationship that they can nurture over time? In whose care do they leave their adoptive children beyond the one-month period and before expiry of the three-month placement period?
Adoptive mums will not enjoy similar rights to the three months’ maternity leave granted to new mums under the Employment Act, 2007. That can be the subject of considerable debate. However, the amendment is a step in the right direction and maybe refined with time. Until then, it is Parenting 101 for adoptive parents – how to find a safe pair of hands to look after your child whilst you’re earning a living.
Who Can Apply For Pre-Adoptive Leave?
The Employment (Amendment) Act, 2021 simply makes mention of “an employee”. This term should be broad enough to cover all adoptive parents under the Children Act, 2001 including:
- A sole female Kenyan applicant
- A sole male Kenyan applicant
- Joint applicants
- A sole foreign female applicant
The amendment appears to be tucked under “maternity leave”. In my view, the implication is that only adoptive mums are entitled to pre-adoptive leave. What does this mean for adoptive dads? Should the amendment have been placed in such a way as to cover both “maternity leave” and “paternity leave” or better still labelled “parental leave”? Otherwise, the amendment will only serve to advance any prejudice against single dads.
As currently drafted, it seems that adoptive dads are not entitled to pre-adoptive leave. They will have to rely on the two-week paternity leave available under section 29(8) of the Employment Act, 2007 if they wish to settle and “bond with” their adoptive children. Again, room for future amendments?
It is therefore my hope that the amendment will be interpreted broadly to include adoptive dads. Or, perhaps, the Rules under the Employment Act should clarify this apparent discrepancy in the law.
The Employer’s Perspective
The obvious correlation between an employee’s well-being and their productivity has been amplified during the COVID-19 pandemic period. Employers have become increasingly concerned with their employees’ welfare and mental health. For this reason, an employer will introduce various benefits to employees either as required by law or as a matter of policy.
The first concern the Employment (Amendment) Act, 2021 introduces is the rights of adoptive dads. The amendment is relatively straightforward where a female employee applies for pre-adoptive leave but is not as clear when considering applications for pre-adoptive leave by male employees. One way for an employer to address this gap in the law is by remembering that the law generally prescribes a minimum. An employer may therefore decide to offer pre-adoptive leave to all employees irrespective of their gender.
Secondly, the amendment Act is also not clear on how many times an employee can apply for pre-adoptive leave in each calendar year. You will recall that pre-adoptive leave is offered to enable an employee to test their compatibility with a child they intend to adopt.
What happens if there is no connection between the prospective parent and the child? Or if the adoption society evaluates the prospective parent/ parents and decides that they are not suitable in one instance? What happens if the employee intends to adopt more than one child in a calendar year? How soon (after the first pre-adoptive leave) can an employee apply for more pre-adoptive leave? Do any data protection considerations come into play?
Again, there is clarity required in the rules under Kenya’s Employment Act to enable employers to address these and more questions.
The Adoption Records
The amendment Act requires an employee to submit records relating to the adoption process to their employer. Does this have any implication on adoptive children’s rights?
Under the Children Act, 2001 adoption societies are required to treat all documents relating to the adoption of the proposed adoption of a child as “secret and confidential”. This includes information as to the identity of the proposed adoptive parent/ parents. The disclosure of this information is allowed in very limited circumstances. These circumstances do not currently include disclosures to the employer of a prospective adoptive parent. They may however be covered under a good-faith exception in the interests of the child.
Assuming that the disclosures pass the “good faith” test, there is a new hurdle created by the Data Protection Act, 2019. The recently published rules under this Act place rights and obligations on various data handlers:
- Data controllers: those who determine the purpose and means of the processing of personal data
- Data processors: those who process personal data on behalf of data controllers
- Data subjects: those natural persons who are the subject of personal data
- Sensitive personal data: includes data revealing a natural person’s family details including names of the person’s children, spouse or spouses
In the context of this article, adoption societies and employers of adoptive parents need to consider their obligations under the Data Protection Act, 2019. They will need to consider any registration obligations, data handling requirements, and confidentiality requirements. This may have financial implications, including the penalties and fines payable for breach!
In Recognition of National Infertility Awareness Week
On April 18th to 24th 2021 communities the world over observed National Infertility Awareness Week, a project of RESOLVE whose key objective is “to remove the stigmas and barriers that stand in the way of building families”.
Family Ties and Employment
We have typically been socialised to believe that a family is made up of a father, a mother and their natural-born children. In the African context certainly, and indeed in many communities across the globe, our traditional definition of the family goes beyond this nuclear set-up to include several generations, polygamous homesteads, brothers and their families cohabiting – sometimes not so peaceably.
With the passage of time, these concepts and family structures have been challenged and have evolved to reflect diverse journeys. There is a growing recognition that families may be built in different ways, with less social stigma attached to non-conventional ways such as adoption, assisted reproductive therapies, surrogacy, blended families and single-parent households. If you’re reading this article and wondering what any of these non-conventional families means, then it is probably time to broaden your friends’ list, phone a friend, and get caught up!
The stigma that has previously surrounded these non-conventional families has led families in these categories to bear their journey quietly and discreetly. They very rarely disclose their experiences beyond their inner circles.
In what might be considered a serendipitous coincidence, laudable amendments to Kenya’s Employment Act, 2007 were assented to on 30th March 2021 and came into effect on 15th April 2021. The amendments to the Employment (Amendment) Act, 2021 focuses exclusively on enhancing parental leave to employees.
The Outlook for Families, Employees and Employers
For families and employees, the Act is significantly progressive, welcome and timely:
- It goes some way in introducing the rights of adoptive parents in the context of employment
- It acknowledges the “foster care placement” period as critical to the success of a positive adoption placement
- It attempts to give the pre-adoptive placement period a fighting chance of success
- It does not interfere with an employee’s pre-existing right to annual leave
- It starts to negate biases and perceptions against non-conventional families
For employers, the Employment (Amendment) Act, 2021 provides an opportunity to re-think employee welfare and benefits:
- It necessitates a review of policies relating to parental leave
- It allows for the formulation of policy that is gender-blind
- It requires clarity in interpretation of grey areas e.g. applications for pre-adoptive leave by male employees
- It creates new obligations around employee data privacy and data protection
We look forward to the rules under the amendment Act shading in the grey areas highlighted in this article and thus enabling compliance. Ideally, this is certainly not an area of the law that should invite interpretation through litigation and case law.
For now, let us welcome the new amendments, ponder their interpretation and let them sink in …
