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 … Continue reading Pre-Adoptive Leave: Amendments to The Employment Act, 2021