In the recent past, inter-country adoptions have been thrown into the limelight for one reason or the other beginning with the accusations of some players being involved in child trafficking in the guise of helping needy children, to the indefinite moratorium that was imposed by the Cabinet on 26th November 2014. The main reason given by the government for this drastic action was the citing of Kenya as a source, transit and destination country for human trafficking in a report by the United Nations Office on Drugs and Crime (UNODC). Whereas any well-meaning Government should be concerned about such grave accusations, the stream of reactions that followed seems to have missed the point.
The Cabinet Secretary for Labour Social Services and Security went ahead and on 20th February, 2015 appointed an expert committee to review and develop a policy and legal framework to regulate and manage child adoption in Kenya. This approach insinuates that the problem of child trafficking lies in the structures of adoption. This is an assumption that’s both simplistic and reactive and which is meant to save face on the part of the government. The problem of child trafficking squarely lies on our anti-trafficking laws and the child care and protection system as a whole. The later, can be well illustrated through a keen scrutiny of the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption.
The Hague Convention, which Kenya has ratified, is an international convention that seeks to ensure that the best interests of the child are considered in inter-country adoption. The preamble to the convention states that, “Inter-country adoptions shall be made in the best interests of the child and with respect for his or her fundamental rights and to prevent the abduction, the sale of, or traffic in children and each State should take, as a matter of priority, appropriate measures to enable the child remain in the care of his or her family of origin.”
Of more interest is article 4 of the convention which lays down what is referred to as the subsidiarity principle. The subsidiarity principle provides that only after due consideration has been given to national solutions should inter-country adoption be considered, and then only if it is in the best interest of the child. Generally, a childrens’ home should be considered as a last resort for a child in need of a family.
From the above, we can deduce that the Hague Convention was not designed as a self-serving instrument meant to create a highway for inter-country adoption but rather one that places it as a later option after all domestic family based solutions have been explored.
This therefore puts a benchmark on the cases that qualify for inter-country adoption. What then happens when these envisaged domestic solutions are inexistent or poorly developed as is the case in Kenya?
Domestic solutions provided for in The Children Act are foster care, guardianship and domestic adoption, whose intake is still very low. This state of affairs can be attributed to the overreliance of our child care and protection system on children homes for the care of Orphaned and Vulnerable children, as well as the low awareness levels on the part of the public on these domestic solutions.
Would it then, be considered to be in the best interest of a child when inter-country adoption takes place in an environment of non-existent domestic solutions? Can the subsidiarity principle be comprehensively satisfied on a platform where kinship care, foster care, guardianship and domestic adoption are poorly developed?
What this scenario has produced is a large pool of children housed in largely unregulated children homes, creating a fertile breeding ground for child trafficking and also leaving children with special needs and older ones with no other chance of growing up within a family except inter-country adoption.
In essence, proper utilization of kinship care, foster care and domestic adoption is the only solution that can completely eliminate or reduce considerably the number of children vulnerable to trafficking or needing inter-country adoption.
With the Guidelines for the Alternative Family Care of Children in Kenya recently launched, we should focus more on their implementation rather than wasting public resources on an expert committee that is focusing on the symptoms rather than the root cause of the problem. In addition we should strive to strengthen the Counter-trafficking in persons Act as well as built the capacity of our law enforcement agencies.