LEGAL OPINION ADOPTION

1.0 Principles/Rules Regulating Adoption in Uganda

Adoption of children in Uganda is governed by the Children Act, Cap. 59. The Children Act S. 45(2) allows for adoption of any child whether a citizen or not for as long as the child is found within Uganda. A reading of Section 44 of the Children Act shows that both a citizen and non-citizen may adopt a child under Ugandan law. Section 45 of the Act provides general conditions that must be fulfilled before an adoption order is made in favour of either a citizen or non-citizen, namely (1) Age Section 45 requires the applicant to have attained 25 years of age and must at least be 21 years older than the child. (2) Consent of Spouse An adoption application to be made by both spouses where the applicant is married except that where one of the spouses wishes to adopt a child without the other spouse assuming parental obligations, the other spouse (not the applicant) must consent to the adoption. The requirement of spousal consent may however be dispensed with if the spouse whose consent is required is incapable of giving consent, cannot be found or where the spouses are separated and are living apart with a prospect of a permanent separation. (3) Sex of Child vis avis Adoptive Parent In making an adoption order, the applicants and the childs sex are issues to consider. This means that an adoption application by a sole applicant may not be made in respect of a child of the opposite sex unless special circumstances justify the adoption. It should be noted that the law does not give guidelines as to what amounts to special circumstances as to existence of the same is a matter within the discretion of the court. To my mind, the adoptive parent must show an outstanding moral record as well as evidence to show that there is no other person with the same sex as the child seeking to adopt the same child.

(4) Fostering The law also requires fostering by the adoptive parent of the child for no less than 36 months under the supervision of a probation and social welfare office. If the applicant has not fostered the children for three years as required by the Children Act, then I am of the opinion that the applicant applies for a foster care placement order under s.43 of the Children Act. The application to foster the children is in Form 1 of the schedule to the Foster Care Placement Rules to the District Probation and Social Welfare Officer of the district where the child is found. However, the application is not necessary where the foster parent is a relative of the child and thus the rules under S. 43 do not apply to a relative of the child. (5) Welfare Officers Report The application for adoption must be accompanied by a report of the Probation and Social Welfare Officer to assist the court in considering the application. Since the welfare principal is a key to all matters involving children, he/she must show that if he/she is permitted to adopt the child, he/she shall reasonably provide for its welfare. The guidelines relating to welfare of a child may include the childs physical, emotional and educational needs, the likely effect of the change in the childs circumstances, any harm that the child has suffered as compared to that that it may likely suffer on adoption as well as the capacity of the guardians or parents of the child or other person involved in the care of the child in meeting its needs. In this regard the probation and social welfare officer involved in the fostering process must if required by Court submit a report to assist court in considering the adoption application. The report should contain the following as specified in Rule 10 (2) of the Adoption of Children Rules; (a) The childs relationships with (i) the foster parent or parents and details of any guidance or correction required; other members of the foster family; neighbours and other persons outside the childs foster family; any other person who is not a parent of the child who may have rights or obligations under any order of the Court or agreement or under customary law or otherwise.

(ii) (iii) (iv)

(b)

the medical record and current state of health of the child and the foster family the educational standard of the child with details of schools attended and progress made during the fostering; the views and wishes of the child if ascertainable; the nature and type of the residential home or homes lived in during the fostering; the past, current and likely future economic status of the foster family; the character of the foster family including any criminal proceedings taken against members of that family during the fostering and the officers opinion as to whether that should prevent the adoption; a summary of the involvement of the Probation and Social Welfare Officer during the fostering, and the assessment of the discharge of their duties by the foster parents, during the statutory period, and the verification of the statements made by the applicant in the adoption application concerning the character of the applicant and the position of his or her country of origin relating to the adoption; a summary of the involvement of the Secretary for Childrens Affairs of the Local Council Committee (1) (if any); a recommendation to the Court of the course or courses of action most likely to advance the best interests and welfare of the child. Views of the child If the children in question are able to understand the adoption proceedings, their views on the matter shall also be considered.

(c)

(d) (e)

(f) (g)

(h)

(i)

(j)

6. (a)

(b)

Consent Any person who has any rights or obligations over the children under any order of court or agreement or under customary law or otherwise must consent to the adoption of the children. In this regard if there are any living relatives with such rights over the children then their consent must be sought. In obtaining consent the prospective adoptive parent must ensure that persons whose consent is required understand the nature and effect of adoption viz permanent deprivation of their parental rights over the orphans.

The consent required shall be in Form C of the schedule to the Adoption of Children Rules and consent of a child if applicable shall be in Form D of the same schedule. (c) Consideration The applicant or his representative must not have paid/received or agreed to pay/ agreed to receive or make/receive any consideration for adoption of the children to/from the guardian or any other person in charge of the child. In the case of a non-citizen, the law imposes additional prerequisites to an adoption order as herebelow spelt out. S.47 (1). A person who is not a citizen of Uganda may in exceptional circumstances adopt a Ugandan child, if he or she a) b) c) has stayed in Uganda for three (3) years; does not have a criminal record; has a recommendation concerning his suitability to adopt a child from his countrys Probation and Social Welfare Officer or other competent authority; and has satisfied the court that his or her country of origin will respect and recognize the adoption orders.

d)

The applicant must in order to show residence of 3 years produce, an entry permit as well as residence or work permit if applicable for three years preceding the adoption application. As regards his/her criminal record, the prospective adoptive parent must produce clearance of his criminal record from his home country and/or in Uganda where applicable. In respect of his suitability to adopt, he must obtain a recommendation in this regard from the Probation and Social Welfare Office or competent authority from his country of origin. Evidence that his country of origin shall respect and recognize an adoption order given in Uganda, he may submit an opinion from a legal expert from his country of origin as to laws governing adoption and enforceability of an adoption order obtained from a foreign country specifically Uganda as well as a statement from the ministry of foreign affairs on the recognition of the adoption order granted in Uganda.

2.0

Procedure To Follow While Applying For An Adoption Order.

If all the aforementioned prerequisites are complied with then the prospective adoptive parent may go ahead to apply for adoption under the Children Statute and the Adoption of Children Rules S.I. No. 52 of 1997. According to S.45 (1) (a) of the Children Statute and Rule 3 (2) of the Adoption of Children Rules, an application for adoption where the child or the applicant is not a citizen of Uganda must be made to the High Court of Uganda and where the applicant is a Ugandan citizen, the application shall be made to the Chief Magistrates Court, where the applicant is a Ugandan Citizen. The application takes the form of a petition in Form B of the schedule to the Adoption of Children Rules accompanied by an affidavit verifying the same and with all the relevant documents in support of the allegations in the affidavit annexed thereto. Either the applicant or his advocate shall present the said application ex parte to a Judge/Magistrate in chambers who then may give directions as to service, and any further consent as may be required. After presentation of the said petition for adoption the same is served on the guardian of the child if any in whose absence it should be done on the person having actual custody of the child i.e the child if the child is over 14 years. After service then an affidavit of service is then made and filed in court. The application is the heard in the presence of the Probation And Social Welfare Officer under whose supervision the fostering of the child occurred and consequently if all the above are complied with and the report of the probation and social welfare officer in accordance with rule 10 of the Adoption of children rules, the adoption order shall most likely be made GUARDIANSHIP UNDER UGANDAN LAW There is no specific law on guardianship of children under our law. Nonetheless, our courts have invoked their unlimited power to grant remedies to meet the ends of justice, to grant guardianship orders in deserving cases. The law that has been applied is the Judicature Act, Section 33 that provides: The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any other written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a case or matter is entitled to in respect of any or equitable claim properly brought before it . Since the same Judicature Act allows court to invoke and have reliance on common law where there is no written law on a particular subject, guardianship has been granted to

applicant sin Uganda on consideration set forth by common law with the welfare principle being the overriding principle. Guardianship can therefore only be granted by the High Court and when granted imposes parental rights on the guardian but unlike adoption does not entitle the child to full rights of a biological child vis a vis the parent such as succession. In my opinion, guardianship is a viable remedy where a person who wishes to adopt a child does not fulfill the requirements or prerequisites to adoption as hereinbefore set out.