Distinctions Between Guardianship and Adoption in Kenya

In Kenya, guardianship and adoption are two distinct legal concepts related to the care and custody of children. They serve different purposes and confer different rights and responsibilities. These distinctions are guided by Kenyan law, particularly under the Children Act, No. 29 of 2022 which governs matters relating to the welfare of children, including guardianship and adoption. Here's a breakdown of the key distinctions:

1. Legal Relationship and Status:

Guardianship: Guardianship does not change the child's legal status. The guardian has the responsibility to control care for and manage the child's affairs, but the child does not become the guardian's legal child. The child retains their original family ties, including the surname and inheritance rights from the biological family.

Adoption: Adoption creates a new, permanent legal relationship between the child and the adoptive parents. The adoptive parents become the child's legal parents, and the child is considered as if they were born to the adoptive parents, severing all legal ties with the biological parents. The child assumes the surname of the adoptive parents and gains inheritance rights from them.

2. Permanence:

Guardianship: Guardianship is generally temporary and can be revoked or modified by the court. It is often established when the biological parents are unable to care for the child temporarily.

Adoption: Adoption is permanent and irrevocable, except under very exceptional circumstances. Once the adoption is finalized, the legal bond with the adoptive parents is for life.

3. Parental Rights:

Guardianship: The biological parents may still retain some rights, such as visitation or a say in important decisions, depending on the terms of the guardianship order.

Adoption: Upon adoption, the biological parents' rights are terminated entirely, and the adoptive parents have full parental rights and responsibilities.

4. Decision-Making Power:

Guardianship: The guardian has the right to make decisions concerning the child's welfare, such as education, health, and religion, but within the limits set by the court.

Adoption: The adoptive parents have complete decision-making power over the child, just like biological parents.

5. Purpose:

Guardianship: Often used in situations where a child's parents are unable to care for them due to reasons like illness, absence, or incapacity, but where reunification with the biological parents might still be possible.

Adoption: Intended to provide a permanent family for a child who cannot be cared for by their biological parents, with no expectation of reunification.

Agreeably, the key difference between guardianship and adoption in Kenyan law is the permanence and legal status of the relationship. Guardianship is a temporary arrangement where the child's legal ties to the biological family remain intact. Adoption, however, creates a permanent and irrevocable legal bond, fully severing ties with the biological family. Due to these significant and lasting consequences, courts rigorously assess applications for either orders to ensure the child's best interests are protected.