ADOPTION.

DEFINITION. Adoption is the process by which parental rights and responsibilities of the
biological parents of a child are transferred by way of a court order to the adoptive parent or
parents of a child. In the Matter of the Adoption of Victoria Babirye Namutosi by
Johnny Walters and Cheryln Walters, the court defined adoption as the creation of a
parent-child relationship by judicial order between a child and the adoptive parent. In In the
matter of Akoth Fanice (Adoption) (Adoption Cause 4 of 2019) court observed that
worldwide, adoption is an alternative care of last resort when the biological parents are
unable to perform their parental duties towards their child.

CONTEXTUALISING ADOPTION. David Smolin puts his Foreword to the “Grey Zones”
study, notes that a large proportion of intercountry adoptions arise in circumstances where
there have been severe violations of the rights of both children and adults, due to poverty
and/or discrimination based on disability, gender, race, or ethnic group. Thus, where
children’s rights and human rights are respected and successfully implemented, there are very
few children legitimately in need of adoption. Further, while adoption is theoretically a
means to ameliorate rights deprivations and to implement the best interests of the child, as
actually practiced it easily becomes driven by the desire of adults for children, and by
financial incentives. According to UNAIDS (2013), there were about one million Ugandan
children orphaned from AIDS under the age of eighteen, and 1,600,000 people diagnosed
with HIV in 2013. This problem has been recognized globally and has prompted significant
humanitarian aid, although not enough to combat this large of an issue. Many organizations
that attempt to alleviate this problem are only able to help five to ten percent of those in need
(Subbarao & Coury, 2004). Many Sub-Saharan African countries, lacking in resources with a
growing number of children in need of care, began conducting international adoptions which
gained popularity in Africa at the start of the twenty-first century (Roby & Shaw, 2006)

LEGAL FRAMEWORK. The laws governing adoption in Uganda, are enshrined in the
1995 Constitution, the Children Act Cap.59, and the Children (Amendment) Act (CAA)
2016. Under Arts 31(4-5) & 34(1) of the Constitution of Uganda 1995, it is the primary role

and duty of parents to care for and bring up their children. However, circumstances may arise
where the parents are unable or unwilling to care for the child, or it is not in the child’s best
interest to live under certain conditions. In such circumstances, the law allows for the options
of granting orders of custody, guardianship, adoption or foster care placement to another
person or persons or organization willing to take care of the child or children in need of care.
At the international level, there is a number of instrument regulating adoption. The CRC
which provides that international adoption be conducted when a child does not have another
suitable home, as long as certain regulations are met, such as the sending country must not
receive excessive monetary benefits from the exchange, the people involved with the
legalities of the adoption must be competent in their work, and the placement must be in the
best interest of the child. The 1993 Hague Convention on Protection of Children and
Cooperation in Respect of Intercountry Adoption provides an outline of international
adoption regulations that promote the best interest of the adopted child as the primary
concern, and stresses that international adoption should only be used when there are no
permanent domestic care options available, and the adoption is in the child's best interest.

LEGAL LEFFECTS OF ADOPTION. Section 51 of the Children Act provides that upon
an adoption order being made;

(a) All rights, duties, obligations and liabilities of the parents and guardian in relation to the
future custody, maintenance, and education of a child, including all rights to appoint a
guardian and to consent or give notice of consent to marriage, are extinguished; and

(b) They shall vest in and be exercised by and enforceable against the adopter all such rights,
duties, obligations, and liabilities in relation to future custody, maintenance and education of
the child as would vest in him or her if the child were the natural child of the adopter born to
him or her in lawful wedlock.

In the Matter of Natalie Matama (Infant), Justice Tuhaise stated that in all matters of
adoption, by granting the adoption order, it places the adoptive parent in the ‘shoes’ of the
child’s parent. As a result, an adoptive parent should be free to move with the child anywhere
like any parent would unless it is not in the child’s best interest. In Ayat Joy v. Jevevieve
Chenekan Obonyo & Another High Court Adoption Case No. 52 court observed that
Adoption in law creates a lifelong relationship of parenthood between a child and the
adoptive.
JURISDICTION. Under section 41 of the Children Act, the jurisdiction for grant of an
adoption order is placed in the Chief Magistrate’s Court where both the child and the adopter

are Ugandans and in the High Court where the child or the adopter is a non-Ugandan. In the
Matter of Natalie Matama, Justice Tuhaise observed that inter-country adoptions could only
be granted by the High Court. It is important to note that in Uganda, a child need not be a
Ugandan citizen to be adopted. What is vital is whether the child was found within the

geographical jurisdiction of Uganda.

RESTRICTIONS OR PRECONDITIONS FOR ADOPTION ORDER.

Who can apply for an adoption order? An application/petition for an adoption order can be
made by any responsible adult – whether a Ugandan citizen or not – capable of undertaking
parental responsibility for a child. However, the law provides for a number of prerequisites to
be fulfilled by both a citizen (section 45) and non-citizen (section 46) before adoption order
can be granted.

ADOPTION BY A UGANDAN CITIZEN

(a) Individual or Joint Applications: Section 45(1) of the Children Act provides that an

application for adoption can be granted to a sole applicant or jointly to spouses.

(b) Spousal Consent: Where an application is being made by an individual spouse, the
consent of the other spouse is required except where such spouse cannot be found or is
incapable of giving consent or it is clear that the parties are living apart or separated. (Section
45 1(b) & (2))

(c) Age of Applicant: The applicant or at least one of the applicants in joint applications

must have attained 25 years and is at least 21 years older than the infant. (Section 45 (1) (a)

(d) Existence of Exceptional Circumstances: Under section 45 (3), the law prohibits the
award of an adoption order is favour of a sole male applicant with respect to a female child,
and the sole female applicant with respect to a male child unless the court is satisfied that
there are special circumstances that justify, as an exceptional measure, the making of an

adoption order. In The Matter of Mirembe Nansamba Claire (A Minor), both parents of
the child consented to the grant of an adoption order to the uncle of the child. Although the
applicant was only 16 years older than the infant, he was providing the necessaries, and in
that regard, there were exceptional circumstances that warrant the grant of the adoption order.
Besides, the applicant was maternal uncle of the child, with no criminal record and
understood the implication of the adoption order.

(e) Foster Care Period: Originally, under Section 45 (4) of the Children Act, the law
required that the applicant should have fostered the child for a period of three years under the
supervision of the Probation and Social Welfare Officer (PSWO) before the adoption could

be granted. However, section 13 of the Children Amendment Act, 2016 reduced this period

to one year. This followed active judicial criticism that the three years period denied other
children the possibility of living in a more family or homely environment.

The courts have in a number of cases waived the requirement for fostering of the child for
twelve months where exceptional circumstances exist and where it is in the best interest of
the child to do so. For example, In the Matter of the Adoption of Victoria Babirye
Namutosi by Johnny Walters and Cheryln Walters, an adoption order was granted
although the petitioners had not fostered the child or lived in Uganda for the statutory one

year. In another case of Sidney Harper & Wendy Harper and Musinguzi Davis (an
Infant), the court granted an adoption order to the petitioners who, although had lived in
Uganda for four years had fostered the child for only nine months. In these cases, the court
exercised its inherent powers to waive the requirements in exceptional circumstances as
stipulated in section 14 of the CAA and in the child’s best interest.

(f) Probation Report: The report of the PSWO is intended to guide the court in decision
making regarding the grant of the adoption. (Section 45(5)). However, the court may require
any other person or local authority to furnish the court with additional information.

ADOPTION BY A NON CITIZEN (INTER COUNTRY ADOPTIONS).

S. 46(1) of the Children Act provides a person who is not a citizen of Uganda may in
exceptional circumstances adopt a Ugandan child. In the matter of Akoth Fanice
(Adoption) (Adoption Cause 4 of 2019), the child for adoption was a Kenyan national.
Justice Olive Mukwaya dismissed the petition on the ground that it had no jurisdiction to
entertain an inter country adoption petition concerning the child since she was a Kenyan
national and the petitioner a French national.

Where the adopter is a foreigner, there are additional prerequisites beyond those enshrined in
section 45. These include:

(a) Residence. The intended adopter should have stayed in Uganda for at least one year as
stipulated in section 14(a) of the CAA. This section amended section 46(1a) of the CA, which
required the applicant to have stayed in the country for three years. In RE M (An Infant) the
petitioners for adoption had lived partly in Uganda and partly in Australia and the High Court
concluded that they were not residents in Uganda within the meaning of section 4(5) of the
Adoption of Children’s Act Cap.216 and dismissed the petition. On appeal, the justices of the
Supreme Court held that residence must be given a liberal interpretation to ensure the best

interest of the child and granted the order.

(b) Foster Care. Under s. 14(b) CCA, the applicant should have fostered the child to be
adopted for one year before the order is granted. This was also a reform from section 46(1b)
of the CA that provided for a foster period of three years. In Re Derrick Mugoya Okola
Willy, Edward Kabugo (Children) of Kamwokya, Kampala District, High Court
Adoption Cause no. 69 of 2007, the applicant had not fostered the infants for thirty-six
months, the Judge held that Section 45 is only discretionary and not mandatory, and the court
waives the reminder of the thirty-six months requirement if it is in the child’s best interest.
In The Matter of Amari Daphne, the court noted that fostering a child for one year does not
mean having physical custody of the child. It includes any conscious effort made by a
prospective petitioner(s) to support a child through any practical arrangement. Such support
may be channelled through a parent or relative of the child, or any other person having
physical custody of the child. This arrangement is referred to as constructive fostering.

(c) Criminal Record and Country Recommendation. The applicant must also prove to the
court that he or she does not have a criminal record and has a recommendation from his or
her country of origin, confirming the suitability to adopt the child. Such a recommendation
can be given by the PSWO of the country of origin or any other competent authority.
However, additional information to guide the court and protect the best interest of the child

can also be sought from an advocate or a guardian ad litem for the child.

(d) Recognition of the Order by Foreign Country. Under section 46 (1)(e) CCA, the
applicant must further prove that his or her country of origin will recognize the adoption

order granted by the Ugandan courts. For instance, Justice Mubiru, in In the Matter of
Sydney Harper & Anor and Musinguzi Davis (An Infant), while granting the adoption
order recognized that the applicants had furnished a twenty paged report about their
suitability as parents to adopt the child and also a confirmation that their country would
recognize the adoption order if granted.

Suffice to note that the law allows the court in exceptional circumstances to waive any of the

requirements stated in section 46 if it is in the best interest of the child. Furthermore, inter-
country adoptions are to be used as a matter of last option available to orphaned, abandoned
or legally relinquished children, along a continuum of comprehensive child welfare services.
The continuum of child wel- fare services refers to a broad range of preventive services and
community-based family-centred alternative care options which may include: family
preservation, kinship care, foster care and institutionalization.

OTHER GENERAL REQUIREMENTS. There are other additional requirements to the

adoption order besides those set out in sections 45 and 46 of the CA and section 14 of the
CAA. These are:

(A) CONSENT. Where a child is to be adopted, the consent of the child’s parent where such

parent is known and can be found is necessary before the grant of the adoption order. In the
Matter of Adoption of Victoria Babirye Namutosi, the consent to the adoption order was
granted by her biological father to the adoptive parents. In this case, although both parents
could be found, they were unfit to execute their parental responsibilities towards the child.
The father was an alcoholic while the mother suf- fered from a mental illness that hindered

her ability to care for her children.

However, a parent who gives consent can before the pronouncement of the adoption order
withdraw his or her consent to the adoption. Where a child has no parent, any person or
organization having parental responsibility for the child can give their consent to the

adoption. In the Matter of Natalie Matama, the grandmother gave her consent to the
adoption of the child by the paternal aunt who had dual citizenship of Uganda and the US but
lived in the latter country where she wished to live with the infant. Both biological parents of

the child were deceased, and the child was under the care of her grandmother.

However, where the parent’s consent to the adoption is obtained under fraudulent
circumstances, the court can set aside the adoption order. This was the case in the Matter of
Peter Ssebuliba, where the mother’s consent to the adoption of her son was not obtained,

and she brought an application for a writ of habeaus corpus.

(B) FUNCTIONS OF THE COURT. Before granting the adoption order, the court must
satisfy itself that:

(i)  every person whose consent is required and is not dispensed with has consented and
understands the nature and effects of the adoption, namely that it will permanently deprive
the person of parental rights over the adopted child neither the adopter nor the parents of the
child/children have not received a reward in money or nonmonetary form for the adoption;

(ii)  the order if made will be for the welfare of the child, due consideration being given to the
wishes of the child having regard to his or her age and understanding;

(iii)  the applicant has not received or agreed to receive, and that no person has made or

agreed to make the applicant any payment or other rewards in consideration of the adoption;
and

(iv)  the applicant or any person on behalf of the applicant has not paid or agreed to pay

money or anything in place of money to the parents, guardian or any person in charge.

(C) BEST INTEREST OF THE CHILD PRINCIPLE. In all matters concerning children,
the best interest principle is of paramount consideration. Section 3 of the CAA is to the effect
that the most important factor in determining issues of children whether, by a court, a
tribunal, a local authority or any person is the welfare and best interest of the child. The Act
further sets out the considerations that should be made by the court in ensuring that the
welfare principle is observed. Section 3(3) states that the court or any other persons shall
have regard to:

(a)  the ascertainable wishes and feelings of the child concerned with due regard to his or her
age and understanding;

(b)  the child’s physical, emotional and educational needs;

(c)  the likely effects of any changes in the circumstances;

(d)  the child’s age, sex, background and any other circumstances relevant in the matter;

(e)  any harm which the child has suffered or is at risk of suffering; and

(f) where relevant, the capacity of the child’s parents, guardian or any person involved in the
care of the child, and in meetings the needs of the child.

In a Petition by Elvanson Rovincer Gentry To Adopt The Infants, the petitioner,

Elvanson Rovincer Nantongo, was granted an adoption order for the adoption of three infants
as she was viewed as being fit to ensure the welfare and protection of the rights of each of the
infants. Similarly, In The Matter of Mukisa Owen (Infant), the courts emphasized the
importance of section 3 of the Children Act Cap 59.

Furthermore, in the Matter of the Adoption of Victoria Babirye Namutosi by Johnny

Walters and Cheryln Walters, the court, in emphasizing the need for an open adoption
framework as opposed to a closed one between the biological par- ents, child and adoptive
parent, noted that: when making decisions concerning children the welfare principle is para-
mount. As earlier mentioned, emotional welfare is critical and as important as any other tenet
of welfare. Unlike children who are very young and may not recall anything about their birth
parents, an 11-year-old child cannot simply erase her background and family ties out of her
mind.

It is vital to note here that the welfare or the principle of the best interest of the child is also

emphasized in both the United Nations Convention on the Rights of the Child (UNCRC) and

the African Charter on the Rights and Welfare of the Child (ACRWC). Uganda domesticated
these two instruments by enacting a law on children. The court in, in the Matter of Hodkins
Andrews (An Infant) noted that, in all matters concerning children, the best interest of the
child should be the primary consideration. This principle is enshrined in Article 34 of the
Constitution, section 3 of the CA and the second schedule to the same Act, as well as various

international conventions concerning the rights of children.

RESCISSION AND REVOCATION OF ADOPTION ORDER.

The adoption order, as has been noted, has the effect of transferring the rights and
responsibility of the child or children from the biological parents or guardians to the adoptive

parent. However, unlike its predecessor, the CAA provides for grounds where an adoption
order can be rescinded or revoked. Section 46A states that:

1. The court may, in exceptional circumstances, rescind an adoption order on an application

by–

a)  the adopter

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)  a person who consented to the adoption

e)  the minister in the case of an inter-country adoption or

f)  any other person with justifiable reasons.

2. However, an adoption order can only be rescinded only if:

a)  it is in the best interest of the child, or

b)  The order was obtained through fraud or misrepresentation

EFFECTS OF RESCINDING AN ADOPTION ORDER. Under Section 46A (3 a & b)

CCA, where an adoption order is rescinded, the adoption shall cease to apply in respect of the
child concerned, and all other responsibilities, rights, and other mat- ters which had been
previously terminated by the adoption order in respect of the child shall be restored. Section
46A(4a) CCA provides that in rescinding the adoption order, the court is required to make an

appropriate placement order in respect of the child concerned. In this case, the court may
order that the child be kept in temporary safe custody until an appropriate placement order

can be made, or it can make an ancillary order where necessary for the restoration of the
child.

DUTIES OF THE ADOPTIVE PARENT. In addition to obtaining parental rights and

responsibilities over the adopted child, under section 53 CA, the adoptive parent is obliged to
ensure that the adopted child is a beneficiary in his or her testament like all the other
biological children. Under section 52 (1) where the adopter dies intestate, the adopted child
will still acquire an interest in the Estate of the adoptive parent. Under section 52 (2), where
such child is denied an interest, he or she can bring an action in court for enforcing his

interest. It is important to note, however, that under section 52 (3) where the natural parents
of the adopted child or children die intestate, such children are prohibited from inheriting

from the natural parent’s estate.

The adoptive parent is further required to disclose the fact of adoption to the adopted child
when the child is of understanding age unless such disclosure is not in the best interest of the

child. In the Matter of the Adoption of Victoria Babirye Namutosi by Johnny Walters
and Chery in Walters, the court stated that although the Ugandan law only recognizes a
closed adoption, in light of the special circumstances of the case – where the 11-year-old
child knew her parents and siblings and her alcoholic father had consented to the adoption
whereas her mother was mentally ill and unable to care for the children – ordered that the
adoptive parent keeps an open adoption framework with the biological parents of the child. It
stated that the adoptive parent must comply with section 54 of the CA and disclose all
information and facts of adoption to the child.