Adoption (Family Law Notes Uganda)

1. Adoption

According to the Black's Law Dictionary 9th Edition, Adoption is the taking and receiving as one's own that to which he bore no prior relation, colorable or otherwise.

Adoption is the process by which parental rights and responsibilities of a child's biological parents are transferred by way of a court order to the adoptive parent or parents of a child.

Similarly, In the Matter of the Adoption of Victoria Babirye Namutosi by Johnny & Cherilyn Walters, the court defined Adoption as the creation of a parent-child relationship by judicial order between a child and the adoptive parent.

Under Article 34(1), the constitution stresses that children have a right to be cared for by parents and those entitled by law to bring them up.

1.1 Legal Effect of Adoption

According to Section 94 of the Children Act Cap 62. Upon issuing an adoption order, all rights, duties, obligations, and liabilities of the biological parents and guardians of the child are extinguished and transferred to the new adoptive parents.

Legally, this means that the adoptive parent is treated as though they were the biological parent of the adopted child.

This is where the difference between Guardianship and Adoption is drawn. Guardianship does not extinguish the rights and responsibilities of the biological parents, but Adoption does.

In the Matter of Natalie Matama (Infant), it was stated that Adoption places the adoptive parent in the 'shoes' of the child's parent.

1.3 Jurisdiction in Adoption Matters

Jurisdiction refers to the powers of a court to hear a matter before it.

Jurisdiction in adoption matters is provided for by Section 86 of the Children Act Cap 62.

Jurisdiction refers to the powers of a court to hear a matter before it.

Jurisdiction in adoption matters is provided for by Section 86 of the Children Act Cap 62. Adoption matters are instituted by way of a petition.

According to section 86(1)(a) of the Children Act and rule 3(1) of the Children (Adoption of Children) Rules, where both the child and petitioner(s) are citizens of Uganda, the petitioner(s) may make a petition for Adoption in the Chief Magistrates Court. The petition takes the format of FORM A in the schedule to the Children (Adoption of Children) Rules.

This was illustrated in the matter of Natalie Matama, where both the applicant and the child were citizens of Uganda, and the application was heard in the Chief Magistrate's court.

According to section 86(1)(b) of the Children Act and rule 3(2) of the Children (Adoption of Children) Rules, where the petitioner or the child to be adopted is not a citizen of Uganda, then the application for Adoption is made to the High Court. The petition takes the format of FORM B in the schedule to the Children (Adoption of Children) Rules.

This was the case in Re Benjamin Pietsch.

Note: Although jurisdiction conditions for applicants filing adoption applications may vary depending on whether they are or aren't citizens of Uganda, section 86(2) of the Children Act provides that a child need not be Ugandan to be adopted.

The bare minimum is that the child resides in Uganda.

1.4 Types of Adoption

1.4.1 Inter-country Adoption

This is a form of adoption where the petitioners seeking to adopt a child or the child is a non-citizen.

1.4.2 National Adoption

This is a form of adoption where both the prospective adoptive parent (s) and child to be adopted are Ugandan citizens.

1.5 Requirements/Conditions to Fulfill Before an Adoption Order is Granted

Both citizens and non-citizens can apply for adoption in Uganda.

Sect 87 of the Children Act provides for conditions to be fulfilled (by both citizen and non-citizen applicants) before an adoption application can be granted;

1.5.1. Age of the Applicant(s)

Where the applicant is sole, he or she must be an adult who has attained 25 years and at least 21 years older than the child to be adopted. Where they are joint applicants, one of the applicants must fulfill the earlier stated requirements. Section 87(1)(a) CA

1.5.2. Consent of the Parents of the Child

According to section 90 of the Children Act, where the child's parents are known, their consent must be sought before an adoption order is made. In the Matter of Adoption of Victoria Babirye Namutosi, the biological father had to consent before the adoptive parents proceeded with the petition.

This consent must be genuine and free. It must not be induced by way of compensation or fraudulent means. This was illustrated In the Matter of Peter Ssebuliba Miscellaneous Cause No. 37 of 2009, where the applicant did not obtain the mother's consent before the petition. As a result, she applied for a writ of habeas corpus to prevent the adoption proceedings. Accordingly, adoption can be set aside where the consent is not genuine or obtained freely.

Per Rule 8(1) Children (Adoption of Children) Rules the consent must be expressed in FORM C of the schedule to the rules

However, where the consent of the parents cannot be reasonably sought in given circumstances i.e if the parents are not of sound mind, a drunkard or deceased, section 90(2) of the Children Act provides that the court may dispense with the consent of parents if they are incapable of giving it.

1.5.3. Spousal Consent

Where the petition for adoption is made by one of the spouses, the other spouse must consent to the prospective adoption. Per Rule 8(1) Children (Adoption of Children) Rules the consent of the spouse must be expressed in FORM C of the schedule to the rules.

According to section 87(2) Children Act, consent can be waived when the applicant cannot obtain the other spouse's consent. This can be because the other spouse cannot be found or they are incapable of giving consent. Additionally, when the spouses are the spouses are separated, living apart and the separation is likely to be permanent, consent can be foregone. See Re Sharon Asige.

1.5.4. Consent of the Child

Section 90(5) of the Children Act provides that where the child can understand the adoption proceedings, court must consider the child’s wishes in arriving at a conclusion.

Section 90(6) of the Children Act provides that if the child is at least fourteen years of age, his or her consent to the adoption must be obtained unless he or she can't express his or her wishes.

1.5.5. Sex of the Applicant

A sole male applicant cannot adopt a female child, nor can a sole female applicant adopt a male child. (section 87(3) Children Act)

Exceptions come in under special circumstances where the rule can be waived after the court's assessment.

This was illustrated In the matter of Mirembe Nansamba Claire. In this case, even though the child's uncle was only 16 years older and a sole male applicant applying to adopt a female child, the court granted the adoption order considering that he was already providing necessaries for the child and he was the maternal uncle.

1.5.6. Sole / Joint Applicant

Per section 87(6) Children Act, a child can only be adopted by one person at a time unless the people adopting are applying together as spouses.

1.5.7. Foster Care Period

According to section 87(4), the petitioners must have fostered the child for at least 1 year (12 months) under the supervision of a Probation and Social Welfare Officer. In Re Micheal Benjamin Pietsch, the fosterage period was 36 months before Adoption could be granted.

Justice Egonda Ntende connoted in the matter of Nicholas Mwanja and Anor (Children) that it was stringent for non-citizens and not in the children's best interests to wait for such a long period of 36 months of foster care.

Hence, in Re Micheal Benjamin Pietsch, an adoption order was granted after the parents had fostered the child for only 35 months with only 12 months in Uganda.

The Children Act Cap 62 has since waived the 36 months and reduced it to 12 months or a year.

1.5.8. Probation Report

According to Section 87(5), Probation and Social Welfare Officers must make a report to guide the court in decision-making concerning adoption.

The same report can also be made by any other authority from the local government to guide on the same.

1.6 Additional Requirements to Be Proved by Non-Citizens in Matters of Inter-Country Adoptions

Section 88(3) of the Children Act provides that in addition to the conditions laid out in Sect 87 CA (as discussed above), non-citizens must satisfy the additional requirements laid out in Sect 88 CA and discussed below;

These conditions were also discussed in the case of Sidney Harper & Wendy Harper and Musinguzi Adoption Casue No. 0001 Of 2018. The conditions set out are not mandatory but act as a guiding tool. The court can waive the requirements it deems fit that it is in the child's best interests.

1.6.1. The applicant(s) must be non-citizens

1.6.2. They must have stayed in Uganda for at least one year.

The applicant must have stayed in Uganda for at least 12 months/1 year. For example, in Sidney Harper & Wendy Harper and Musinguzi Adoption Casue No. 0001 Of 2018, the applicants had lived in Uganda for four years. This was above the bare minimum required by the CA of one year.

1.6.3. They must have fostered the child for at least one year under the supervision of a PSWO

However, in the case of Sidney Harper & Wendy Harper and Musinguzi Adoption Casue No. 0001 Of 2018, granted an adoption order to the petitioners although they had lived in Uganda for four years but only fostered the child for nine months. The court relied on Sect 88(1) CA to waive the requirements since the applicants had shown exceptional circumstances that they were leaving with the child abroad shortly and couldn’t foster the child for longer, in Uganda.

1.6.4. Applicant(s) must not have a criminal record

They must not have any criminal records in their name. This can be proved by a certificate of good conduct, and records from the international police.

1.6.5. Recommendation from Probation and Social Welfare Officer

The applicant must possess a recommendation about his suitability from the PSWO of their respective country.

1.6.6. Compatibility of laws in an applicant's origin country with Ugandan Adoption laws

The applicants' origin country must be able to respect the conditions set out in the adoption order issued by Ugandan courts.

In Sidney Harper & Wendy Harper, and Musinguzi, the applicants presented sworn evidence of reports showing how their origin country was willing to abide by the adoption order issued to the applicants from Uganda.

Note: According to section 88(6) of the Children Act, inter-country Adoption is not an option of first choice. It only comes into play after other childcare options like Family, Kinship, Foster care, and institutional care have been exhausted.

1.6.7. Report of the Alternative Care Panel

By virtue of High Court Administrative Circular No. 2 of 2020, it is now mandatory for the court to consider the report of the Alternative Care Panel (Ministry of Gender, Labour and Social Development) on the suitability of the petitioner(s) to adopt a given child before an adoption order is granted.

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1.7 Functions of the Court in Adoption Matters

The Children Act further sets out the conditions the court must satisfy itself with before granting an adoption order under Section 48, that is to say;

· Ensure that the required consent is obtained

· That the adoption order is meant for the child's welfare, regard must also be drawn from the child's wishes based on their age and understanding.

· That the applicant has not engaged in unscrupulous behaviour to get compensation for their application for Adoption

· Nor has any person parent, guardian, or person in charge of the child's care received compensation in consideration for the Adoption of the child.

Finally, the court must consider the Welfare Principle/Best Interests Principle in Section 3 of the CA as a guiding principle in all children's matters.

This was illustrated In the Matter of Hodkins Andrews (An Infant), where court noted that in all matters concerning children, the child's best interest should be the primary consideration. This is further cemented by Art. 34 of the Constitution.

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1.8 Revocation of an Adoption Order

An adoption order is not absolute. It can be rescinded by the court in exceptional circumstances as captured under Section 46A of the Children Amendment Act.

The court may, in exceptional circumstances, rescind an adoption order on application by—

(a) the adopted child;

(b) a parent of the adopted child or another person who was a guardian in respect of the child immediately before the Adoption;

(c) the adoptive parent of the child;

(d) any person who consented to the Adoption;

(e) the Minister in the case of inter-country Adoption; or

(f) any other person with justifiable reason.

Although this is the case, an adoption order can only be rescinded if;

(a) rescission of the order is in the best interest of the child; or

(b) the order was obtained through fraud or misrepresentation

1.9 Legal Effect of Revoking or Rescinding an Adoption Order

After granting an adoption order, all rights, duties, liabilities, and responsibilities a biological parent possesses on a child are extinguished and vested in the adoptive parent. Section 94 CA.

Similarly, where the Adoption order is rescinded, the formerly extinguished and transferred rights, liabilities, duties, and responsibilities vested in the adoptive parent are then restored—section 89 (3).

1.10. Procedure for Applying for Adoption

1. Filing the petition

Rule 3(2) of the Children (Adoption of Children) Rules specifies that when either the petitioner or the child is a non-Ugandan citizen, the application must be made to the High Court using Form B in the Schedule.

Rule 3(1) Children (Adoption of Children) Rules provides that when both the petitioner and the child are Ugandan citizens, the application must be filed by petition in the Chief Magistrate’s Court using FORM A in the schedule to the rules.

2. Ex-parte Application

Rule 3(3) requires that the petition be presented ex parte, meaning it is initially heard by the court in chambers without opposition parties being present.

The petitioner can appear in person or through an advocate.

Rule 3(4) requires that the probation and social welfare officer supervising the child’s fostering must be present at the ex parte hearing and attend any subsequent court proceedings as directed, to offer advice to the court.

3. Service of Petition

Rule 5(1) mandates that the petition be served on:

The child’s parents or guardians (if any).
Any person with actual custody or financial responsibility for the child.
The child, if they are 14 years or older.

Rule 5(2) allows the Judge to waive service where it is deemed unnecessary.

4. Submission of supporting documents

Rule 7 requires that the petition’s statements be verified by an affidavit.

Per Rule 8(1), consents as required by the Children Act (See Sect 90(1) CA on consent of a parent), must be submitted in Form C or Form D, depending on whether it is from a parent or a child over 14 years.

Proof of the child’s age is required, per Rule 9(1), and may be demonstrated through documents like a birth certificate or a medical report. (Rule 9(4)).

5. Probation and Social Welfare Officer’s Report

Rule 10(1) obligates the court to request a report from the Probation and Social Welfare Officer to determine whether the adoption order will be in the best interests of the child.

Rule 10(2) outlines the specific details this report must include, such as the child’s health, education, and overall welfare.

6. Fixing of Hearing

Rule 12 provides that once all documents are filed and served, the court will fix a date for the hearing.

The hearing is conducted in camera, as required by Rule 13, to ensure confidentiality.

7. Court’s Determination

The court evaluates the petition, consents, reports, and all supporting documents.

Based on the best interests of the child, the court may issue an adoption order as prescribed by Rule 3(3).

Forum

High Court – For Inter-country adoption

Documents

Petition – FORM B or FORM A Rule 3 of the Children (Adoption of Children) Rules

Affidavit verifying the petition

Conclusion

I hope you found this article helpful.

Generally, the court sets out the conditions mentioned earlier one must fulfill before a petition for Adoption.

Although the conditions are set out, there are certain exceptional circumstances where the court has readily waived the requirements. Where it is in the child's best interests to do so, the court will waive the conditions.

Other Family Law Study Resources;

· Custody Family Law Notes Uganda

· Divorce and Separation Family Law Uganda

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