ADVOKS GLOBAL · KENYA
Children Act
187. Power to dispense with consent
Edition: 2022-12-31 · In force
187. 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 applicant for 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 pursuance of 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without knowing the identity of the applicant for the order, and where the consent given by any person is subsequently withdrawn on the grounds only that he or she does not know the identity of the applicant, the consent shall be deemed as being unreasonably withheld.(5)In considering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 under this 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 or her 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 required under 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 or outside 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 be admissible 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).