Basics of Foster Care in Kenya: Children Act 2022
Source: PinterestFoster care is a legal and social process by which a child who is not able to live with their biological parents is placed in the care of a foster parent (s). The purpose of foster care is to provide a safe, nurturing, and stable family-based environment for the child while their biological parents address the issues that prevent them from providing a suitable home for their child. Or where the child is separated from their biological families temporairly for various reasons.
In Kenya, foster care is regulated by the Children Act of 2022, which provides for the establishment of a foster care system to protect and promote the rights and welfare of children. The Foster Care Regulations to guide the implementation of the Act are currently in draft form (available online) awaiting review and approval by the National Council for Children Services.
What is Foster Care
Children Act 2022 (CA, 2022) defines “foster care placement”
as temporary placement of a child or children in the care of a person who is
not the parent, relative or guardian of the child. It further defines “foster
parent” means a person with whom a child is placed in accordance with section
174, CA 2022.
Distinct concepts to note
- It is important to note that-the foster parent and the child MUST NOT be related to qualify as foster care.
- It is also important to note the TEMPORARY nature of foster care to differentiate it from adoption. The temporality is emphasized to denote that, as a foster parent you only have parental responsibility of care-giving to the child but no rights to change identity (name) of the child, travel with the child, or making crucial decisions about child’s life without approval from the Directorate of Children Services (DCS).
- Foster care placement can be terminated at any time as long as it is within the child’s best interest. For instance, if the circumstances that led the child to be fostered have changed including; the parent or relative have been found, or are willing to take the child back, or a situation in the family of origin has improved, or it is decided you are no longer fit to be a foster parent.
- The legal term for an individual fostering a child is ‘Foster Parent’ and not ‘Foster Carer’
How long does the foster care placement take?
The Act provides for a period starting from six days to twelve months in the initial
placement, depending with the type of foster care option (we shall explore types
of placement shortly). After the initial term, you can renew the placement term twice with each renewal lasting 12 months.
The 2022 Act also provides for a long term foster care, which
can last up to when the child attains the age of majority (or 18 years). However, this
is to be guided by the Foster Care Regulations which are yet to be developed (or the available draft is not officially gazetted). As per the CA 2022, the decision for long term placement is through application
to the court and it is the mandate of the Director of Children Services (DCS) to file the request in court providing justification for extension beyond three years.
Types of foster care
Emergency foster care: Where a child needs rescue in an emergency situation and is placed with a pre-selected, vetted and qualified emergency foster parent (also known within the legal framework as a ‘fit person’). The emergency placement is initially “for up to six working days, unless the terms of foster parent registration have been revised to be consistent with the placement’-CA 2022.
The placing authority may request an extension of up to two months to comprehensively conduct a case management and determine the most suitable option for the child. The case management should commence no later than six days after placement.
No child should be placed in emergency foster care without the explicit approval of the DCS.
If a child is by chance placed with an unapproved person, the approvals should be saught within the six days or the child should placed with a pre-approved foster parent after the six days.
Short-term foster care: Can be considered to be the placement lasting from 12-36 months but is subject to be reviewed every 12 months, twice.
A rigorous case review process determines whether the child should remain in the same placement for a period not exceeding 36 months which will be given long term nature through the court; or else the child should be reunified with the family of origin or placed with a permanent family-based alternative care option such as adoption.
The foster parent can also apply to adopt the child or to be a legal guardian in such
circumstance.
Long-term foster care: This is a placement of
a child under foster care for a period exceeding three years and must be approved by the court. It should only be in the best interest of the child where
tracing effort has failed to locate relatives, and also permanent family-based alternatives such as
adoption are not available or are not in the best interest of the child.
Despite the presence of these policy regulations, many children placed in foster care remain in the placement after the 36 months elapse, sometime until they attain 18 years of age. This is ideally considered illegal, especially if something happens to the child.
Therefore, if after 36 months the child cannot return to their family of origin or be placed with a more permanent family such as adoptive family, the foster parent should apply to the court through the DCS to formalize that placement to long term term foster care until the child is ready to live independently.
However, it is important to note that, long term foster care placement denies the child permanency and this may affect their belonging, identity and inheritance.
It can also be detrimental
to child’s life, for instance, if the foster parents dies, or becomes incapacitated, because
the child can be easily rejected or disinherited by the foster parent’s relatives within the legal framework.
Community-based group foster care: is defined as placement of a group of not more than six children in a rented houses within the community, with a constant foster parent.
It is preferred for older children such as
those who have lived under institutional care over a long periond of time, and they are transitioning to live
independently. The number of such children should be limited between six-eight
per caregiver at any given time.
NB/Community-based group foster care arrangement is only mentioned in the Guidelines for Alternative Family Care (2014) and not provided for in the 2022 Act. Therefore, it is not legally provided for but the National Council for Children Services (NCCS) together with the DCS may provide regulations to guide it’s implementation because it can benefit this category of children or young persons.
Which Children may qualify for foster care?
Children could be placed in a foster care after exiting residential care, from other forms of alternative family-based or community-based care options, or from their biological parents.
Other categories of children who may qualify for foster care also include:
- Double orphaned;
- Abandoned children;
- Children separated from their parents due to detention or emergency, where the child is unable to live with the extended family including those living or working on the street and those whose parents are certified to be terminally ill or mentally incapacitated;
- Children at risk of being placed in institutional care because the family is unwilling or unable to care for him or her (especially children under three years of age and children with disabilities;
- Children unable to live with their parents or extended family in his or her best interests, including children who experienced physical, sexual or emotional abuse, exploitation, or neglect.
Persons who may qualify as foster Parent
- Must be Kenyan citizens living in Kenya (as a
foster child cannot be taken outside of Kenya);
- Must be at least 25 and not above 65 years of
age;
- Must be at least 21 years older than the child;
- Can be a single individual or a spouse of marriage (within Kenya's definition) but a
single individual can only foster a child of their own gender; but this shall
not apply to an intersex child;
- Must not have a criminal record;
- Must be of sound mind;
- Must have been a resident in Kenya for the last 12 months preceding application to foster.
NB/ The Act 2022 allows for foreigners who wish to foster a
Kenyan child, however, there is no clear guidance currently following the 2014 moratorium which barred
any placement of Kenyan children with foreigners. Perhaps the Foster Care Regulations
shall shed some light on placing children with foreign foster parents
Are there restrictions in foster care placements?
CA, 2022 places a number of restrictions which include:
Child with an on-going court process or accused of crime may not be approved for foster care placement.
Foster Placement Authorization: No foster care placement can be conducted without the authorization of the DCS. Vetting and approval of a foster parent is the mandate by the DCS only, including issuance of foster care certificate.
It is important to note that, in Kenya, the central authority to approve, place, and monitor foster care is DCS. This is to emphasize that, there is no such options as foster care agencies, but rather, organizations and development partners can work in collaboration with the DCS to complement their work but cannot singularly place a child into foster care.
This includes Charitable
Children Institution (Children’s Home), who have no mandate to place a child under
foster care without the approval of the DCS.
Documentations required for approval to foster?
- Application by filling in the forms provided in the CA 2022 (provided in the Foster Care Regulations). At the moment, the Application Form used are those in the CA, 2001;
- A Good Conduct Clearance Certificate from the Department of Criminal Investigation (DCI);
- Two referees’ letters from persons who can vouch for your character;
- Reference letter from an authority person such as area chief-to proof residency (this can be guided by the DCS at the point of application);
- Photocopy of personal identification such as National Identity Card, or Passport;
- Photos are also important especially for matching process to be shown to the child;
- Medical/Health report from a registered doctor.
NB/It is important to note that, the list of document may not be
exhaustive and therefore, some DCS offices may require additional documents
depending on the unique circumstances in each sub-county, or due to other risk factors as per the area of jurisdiction as well as the categories of
children being placed such as refugee children, among others.
What is the Foster care process?
The foster care process in Kenya involves a series of steps:
Application: A prospective foster parent (PAP) will visit the nearest children's office in their residential area (ie Sub-county Children's Office) and express interest.
The DCS will conduct the pre-screeining to establish eligibility and if successful, issue the PAP with an application form. The forms may be filled immediately, or returned at a later date with all other required documents attached.
Assessments and approvals, including a home study, criminal background check, and psychosocial evaluation: The DCS, will undertake assessments by reviewing the application form to establish eligibility.
After passing eligibility test, then DCS will conduct a physical home study visit to the home of the PAP including interviewing other members of households, and sometimes their neighbors.
In some instances, the DCS may request a pre-fostering counseling if there are risk factors noted during the assessment, that may threaten child's wellbeing but not serious enough to disqualify an individual.
If the DCS is satisfied, they will issue the prospective foster parent with a foster care certificate and link/refer the PAP to where the child is.
It could either be in a Charitable Children
Institution (CCI-Children’s Home) or the child's family of origin, or from any other alternative care option. The Act allows direct placement from a family to the foster care. The referral is to request the matching of the PAP with a child.
NB/ It is important to note that some PAPs might prior contact with the child before application process and therefore, they may be having linkages as to where they would foster a child from.
However, it is highly encouraged that just like in adoption, the PAP are matched with the child whom, they have capacity to meet their needs. The child should also be within the sub-county where the PAP lives.
This is first to keep the child as close as possible to their family of origin, ensuring the child and their family of origin are in close contact, as well as ensure that the efforts to reunify remain visible, and finally, to minimize trauma (cultural shock) to the child that may arise from changing caregivers.
Of importance to note is that, the Act requires that efforts should be made to keep the child within their community of origin during placements, as much as possible.
Hence, it will not be appropriate for a prospective foster parent to
cross to other sub-counties or counties to find a child to foster as it may violate the child’s rights of preserving their cultural ties and hurting reunification process. It is also cost-effective
in terms of monitoring and supervision by the DCS.
Matching: It is encouraged the matching be conducted in line with the Best Interest of the Child and not to meet the prospective foster parent’s desires. This is to say that, the DCS or the social workers will have identified child’s needs through a case management to guide the matching process.
Therefore, the matching criteria is the child's needs versus the PAP’s capacity and willingness to meet that child's specific needs.
Bonding: This is the point at which a prospective parent, after being matched with the child and accepting, will be required to establish a relational bond by visiting and meet the child several times.
This may include routine outings and pre-visits of the child to PAPs home under the supervision of a DCS or a social worker. This is critical in minimizing transitional trauma on the child that might arise from leaving their current habitual residence to their new home at prospective parent’s residence.
Once the social worker confirms that a stable bond
has been established, a farewell party may be planned to allow the child to process the transition (this is a good practice in the best interest
of the child but not a legal requirement).
Placement and monitoring: Placement marks the actual day when the foster parent will physically take the child to their home for the agreed period. Ideally 12 months. Monitoring for foster care follows within two weeks of placement.
Then thereafter, the regular monthly monitoring visits as per the requirement within the first placement term. However, upon the renewal of the placement period, monitoring frequency can be reviewed to probably a quarterly basis, if there are no safeguarding and protection concerns.
Once placed, the foster family is responsible for the daily
care of the child, including their education, healthcare, and emotional
well-being.
NB/ CA, 2022 provides for the possibility where a child under maintenance order can be placed with a foster parent. If the child’s birth parent or current guardian have been mandated by the court to provide maintenance support, this will be handled by the DCS and remitted to the foster parent as per the placement agreement.
The Act also provides that, DCS can facilitate birth parents or a guardian to enter into a maintenance agreement with the foster parent for the
placement period.
There is also a proposed child welfare fund in CA, 2022 which a foster
parent can apply to. However, this is not currently functional. Further, the DCS, where possible may enroll a fostered child into the available government social safety nets such as cash transfer, or other safety nets provided by its partners, if any.
Support services: The DCS provides support services to both the foster family and the foster child, including regular monitoring, follow-up visits, counseling, and financial assistance to cover the child's basic needs where this is part of the agreement.
In some instances, the DCS may authorise a registered child protection organization to support with monitoring. If this is the case, this shall be communicated officially to the foster parents beforehand.
Reunification: The ultimate goal of foster care in Kenya is
to reunite the child with their biological family once the issues that led to
their placement in foster care have been resolved. If reunification is not
possible, the child may be placed for adoption or in long-term foster care.
Frequently Asked Questions
Can I become a foster parent: Yes, if you are a Kenyan resident
for the consecutive 12 months preceding fostering process, you are of the age between 25
and 65, you have no criminal record and you are of sound mind.
Can I foster a child of my choice: Yes, however, this be
will be guided by the needs of the child, the legal framework and the case management process that
is applied in the fostering process.
As a foreigner, can I foster a child in Kenya?
The Children Act 2022 provides for foreigners to foster a Kenyan child as long as they have been Kenyan residents for the 12 months preceding fostering process.
However, the 2014 moratorium is still in place that
suspended any placement of Kenyan children with foreigners. You may write
directly to the National Council for Children Services or Directorate for Children
Services for further guidance on policy changes in this regard.
Will be supported financially by the government if I foster a child? Currently, the CA 2022 requires those applying to foster a child to understand that, you will be granted full parental responsibility of the foster child. This means that, upon application are capable of, and you accept to provide for the child as your own and undertake all parental responsibilities.
However, there is a proposal in the Act of a child welfare fund which is not clearly stipulated whether it will cover foster care stipend. There is also a possibility of entering intoa maintenance agreement with the child’s parents or guardian where known, or the child's birth parents are capable to do so.
Further, the DCS may
link you to its partners or foster care agencies providing support to children
such as those in foster care or to other government safety nets such as cash transfer,
if the child meets the selection criteria.
Can I travel or relocate with the foster child, if my family arrives to such a decision?
You cannot remove the child from Kenya’s
jurisdiction, even for a short period without court approval. Even local change of residence from the original place where you lived during the placement may require you notifying
the DCS to update your new residential address for the purpose of monitoring. Otherwise
it may considered as an attempt to child trafficking.
Can I change foster child’s name or include our surname on the child’s documents such as birth certificate for the child to benefit from family’s medical cover or other privileges?
The legal foster care regulations does not allow any change or alteration of the child’s name including adding your family name. This denotes the temporality of foster care and that, the child can be withdrawn from you at any time.
Changing child’s identity also violates their identity and belonging rights. Therefore, you cannot alter the child's name. However, you can request for a recommendation letter from the DCS to facilitate the inclusion of the foster child into your family’s benefits such as health insurance, school fees etc.
Can I adopt my foster child?
CA, 2022 provides for the foster
parents to adopt their foster child by applying to the court. However, the
approval will take the normal adoption process that begins with eligibility approval to adopt by a
registered adoption society.
NB/ The National Council for Children Services will require to develop clear regulations on transitioning of foster care to adoption to ensure there are no loopholes that will allow by-passing of adoption process through foster care, as a short cut to adoption.
This can be enhanced by ensuring
the initial intention of the applicant are established, and also the courts to strictly
requiring strong justification for the transition.
Will the child’s birth parents/family of origin/guardian be visiting the child in my family?
Yes, this is one requirement in foster care placement. To eventually reunify the child with their families of origin. However, the nature of the child’s case will determine and regulate the visitation.
The DCS will inform you if such visits or communication with child's birth family is expected, the meeting arrangement and modality will also be agreed during matching stage. If you are not comfortable, you may discuss this at the initial stages of assessment.
What can i do if the child falls sick, dies or runs away from my home during fostering? You are supposed to report of any such event to the DCS within 24 hours.
In case of sickness, you can take the child to the hospital first and then report to the DCS. However, for major decisions such as surgery, you cannot make the decision with the approval from the DCS.
IF the child dies or runs away, you should immediately report to the police, and notify the DCS within 24 hours.
In the next article, we shall explore if foster care is a panecea to institutionalization in Kenya
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