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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, colourable 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) of the Constitution of the Republic of Uganda, the constitution stresses
that children have a right to be cared for by both parents and those entitled by law
to bring them up.
Legal Effect of Adoption
According to Section 51 of the Children Act
Cap 59. Upon the issuance of an adoption order, all rights, duties,
obligations, and liabilities of the biological parents and guardians of the
child are extinguished and transferred to the 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.
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 Sections
44-55 of the Children Act Cap 59.
Adoption matters are instituted by way of application
or petition.
·
Where both the child and applicant are citizens
of Uganda, the applicant may make an application for Adoption in the Chief
Magistrates Court. 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. (Section 44 (1) (a))
Children Act and Section 3 (1) of the Children (Adoption Rules)
Act.
·
Where the applicant or the child is not a
citizen of Uganda, then the application for Adoption is made to the High
Court. This was the case in Re Benjamin Pietsch. (Section 44 (1) (b))
Note: Although jurisdiction conditions for
applicants filing adoption applications may vary depending on whether they are
or aren't citizens of Uganda, Section 44(2) of the Children Act Cap 59
provides that a child need not be Ugandan to be adopted.
The bare minimum is that the child resides in Uganda.
General Conditions for Adoption
Both citizens and non-citizens can make an application
for Adoption in Uganda.
Before one adopts a child in Uganda, one must fulfil
certain prerequisites. They are provided for by Section 45 of the Children
Act.
These are;
Age
Where the applicant is sole, they must be 25 years and
at least 21 years older than the child to be adopted. Where they are joint
applicants, one of the applicants must fulfil the earlier stated requirements.
Consent
The persons in charge of taking care of the child must
have consented to the adoption application by the applicants. This consent must
be genuine and free.
Consent in adoption matters is provided for by Section
47 of the Children Act.
In the Matter of Adoption of Victoria Babirye Namutosi, the biological father consented to the adoptive parents to
proceed with the petition.
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.
Adoption can be set aside where the consent is not
genuine or obtained freely.
Spousal Consent
Where the applicants are married, both spouses must
consent to the Adoption. Consent can also 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 permanently separated, consent can be foregone. In Re Sharon Asige this was witnessed.
Sole Applicants
A sole male applicant cannot adopt a female child, nor
can a sole female applicant adopt a male child.
Exceptions come in under special circumstances where
after assessment by the court, the rule can be waived.
This was illustrated In the matter of Mirembe
Nansamba Claire. In this case, despite the fact that 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.
Foster Care Period
According to Section 45(4), the applicants must
have fostered the child for 12 months under the supervision of a Probation
and Social Welfare Officer. In Re Micheal Benjamin Pietsch, the
foster 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 for fosterage.
Hence, in Re Micheal Benjamin Pietsch, Adoption
was granted after the parents had fostered the child for only 35 months
with only 12 months in Uganda. Courts have since waived the 36 months
and reduced it to 12 months or a year.
Probation Report
According to Section 45(5), Probation and Social
Welfare Officers make reports 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.
Sole/Individual Applicants
Adoption cannot be granted to more than one person to
adopt a child simultaneously except where the applicants are joint applicants.
Adoption by a Non-citizen/Inter-country/Transnation Adoption
All the conditions set out in Section 45 CA (as
discussed in the previous section) equally apply to Adoption by non-citizens
with the exclusion of Section 45 (4) and (5), which connote the
applicant must have fostered the child for a period of 12 months and
requirement of a report from a Probation and Social Welfare Officer or an
authority from a local government.
According to Section 46 (4) of the Children
Act Cap 59, 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.
The conditions for Inter-country Adoption are;
Residence
The applicant must have stayed in Uganda for at least 12
months/1 year. For example, in Sidney Harper & Wendy Harper and
Musinguzi, the applicants had lived in Uganda for four years. This
was above the bare minimum required by the CA of one year.
Foster care
The applicant must have fostered the child for at least
12 months/1 year under the supervision of a Probation and Social
Welfare Officer.
Exceptionally, in the case of Sidney Harper &
Wendy Harper, and Musinguzi, the court granted an adoption order to the
petitioners. However, they had only fostered the child for nine months.
Criminal Record
They must not have any criminal records in their name.
Also read; Domicile
Recommendation from Probation and Social Welfare
Officer
The applicant must possess a recommendation about his
suitability from the PSWO of their respective country.
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 evidence of reports showing how their origin country was
willing to abide by the adoption order issued to the applicants from Uganda.
Note: Inter-country Adoption is not an option of
the first choice. It only comes into play after other childcare options like
Family, Kinship, Foster care, and institutional care have been exhausted.
Also Read:
Family Law Notes PDF (Simplified)
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 behavior 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 courted 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.
Also read: How to effectively revise for law school
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
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 51 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 46A
(3).
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.
Further Reading
·
Bromley's Family Law
·
International Encyclopaedia of Laws: Family and
Succession Law
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