The Applicability Of The Welfare Principle In Child Adoption Matters In Uganda
1.0 Introduction
Adoption is the creation of a parent child relationship by Judicial Order between two parties who are unrelated creating a lifelong relationship of parenthood between the child and adoptive parent.[1] Before the order is made, court must be satisfied that the adoptive parent is suitable and committed to being a parent of the child and that the child is available for adoption. Since the adoption order creates lifelong relationship, the best interest of the child is of paramount.[2] This article discusses the application of the welfare principle in child adoption matters and the considerations for granting Adoption in Uganda.
1.1 Adoption and the Welfare Principle in the Children Act
Section 48 of the Children Act as Amended is to the effect that the Court shall, before making an adoption order be satisfied that it is in the interest of the welfare of the child, due consideration being given to his or her age of understanding.[3] Section 3(1) 1thereof further emphasizes that the welfare of the child shall be of paramount consideration whenever the state, a court, a tribunal, a local authority or any person determines the question in respect to the upbringing of the child, the administration of a child’s property, or the application of any income arising from that administration.[4]Further Section 3(3) of the Act emphasizes that in determining any question relating to circumstances set out in the Act, the court shall have regard in particular to:-
- The ascertainable wishes and feelings of the child concerned, considered in the light of his or her age and understanding;
- The child’s physical, emotional and educational needs;
- The likely effect in any changes in the child’s circumstances;
- The child’s age, sex, background and any circumstances relevant in the matter;
- Any harm that the child has suffered or is at the risk of suffering;
- Where relevant, the capacity of the child’s parents, guardians or others involved in the care of the child in meeting his or her needs.
In his decision of David Twesigye (an infant)[5] Justice Chigamoy Owiny Dollo ( As He then was) while considering an application for guardianship gave some useful insight to the welfare Principle. He held that:-
“…while the primary right of a child is to grow up under the tutelage of his or her parents, or parent, for the obvious reasons of emotional attachment; if it is shown to the satisfaction of a competent authority, and in this case the court, that vesting legal guardianship of the child in the applicants, it would serve the best interest of the child, then it would be proper for this court to make an order removing such child from the parent. Court has to weigh the emotional loss of staying with one’s parents against the opportunities that would come with the relocation away from the hands of the parents…….”
In determining Adoption Matters Court in particular considers the ascertainable wishes and feelings of the child in light of his or her age. The High court in the case of Re. Victoria Babirye Namutosi,[6] noted that,
“As a general rule, the social worker is required to work for eventual reunification of a child with his/her family or community if possible. This approach must therefore be carried out within a framework of planning for permanence in the child’s life which must be balanced with understanding the need for stability of the child’s life.”
The decision in J Vrs C[7] emphasizes the welfare principle as it was held that
“…more than that, the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. [Welfare] connotes a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child’s welfare as that term in now understood … [it is] the paramount consideration because it rules upon or determines the course to be followed.
However in applying the welfare principle, courts are to consider individual assessment of each case but not to entirely rely on precedent.[8] Further according to Bromley “…in applying the welfare principle, the Court must act in the child’s best interests…it should be appreciated that the Judge is not dealing with what is ideal for the child but simply what is the best that can be done in the circumstances…”[9] this manifest the rationale of the welfare principle in children matters and in adoption in particular.
1.2 Legal Requirement for Adoption
The Children Act Cap 59 provides for conditions that the adoptive parent must fulfill before he/she can qualify to adopt a Ugandan child.
Section 45 (1) of the Children Act as amended provides that an adoption order can be granted to a sole applicant or jointly where the applicant or at least one of them has attained 25 years and is at least 21 years older than the child.
Section 45(4) of the Act as Amended by sec 13 of the 2016 Amendment provides that the application shall not be considered unless the petitioner has fostered the child for a period not less than 12 months under the supervision of a Probation and Social welfare officer.
Under Section 2 of the Act, the term foster care placement is defined to be “. placement of a child with a person who is not his or her parent or relative and who is willing to undertake the care and maintenance of the child”. A foster parent means “a person not being the biological mother or father or relative of the child who assumes parental responsibility of the child by way of a care order. On the other hand, parental responsibility means …” all rights, duties, powers responsibilities and authority which by law a parent of a child has in relation to the child”.
An important policy emanating from the above provisions is the realization that foster parents and children can form a close relationship which should be recognized and protected by the law in force. The common law position is that a parent cannot transfer or surrender parental responsibility by private agreement or arrangement exceptions being when a child is entrusted for example, into a school, to child minders or a recognized institution.[10]
This fostering is not limited to physical fostering but also “constructive fostering” Justice Mukiibi in Adoption Cause No. 10/2017 in the Matter of Innocent Turyahabwe (Child) held on page 8 that-:
“…….the requirement for fostering a child for one year does not solely mean having physical custody of the child. It includes any conscious effort made by prospective petitioners to assist/support a child through any practical arrangement. Support may be channeled through a parent or other relative of the child, or any other person having physical custody of the child who has a special arrangement with the prospective petitioners for receiving and administering such support. Should there be need for a term of this art, this may be called “constructive fostering”.
However, Section 14of the Children (Amendment) Act 9 2016 amended section 45(4) by permits Court in exceptional circumstances to waive any of the specified requirements. In the case of Re Victoria Babirye Namutosi,[11] Wherein, the petitioner had not fostered the child for the required 12 months yet the child needed urgent medical attention and court held that; “Fostering the child for one year is a temporary condition that cannot be used to frustrate the process that leads to permanence in a child’s life.”
In regards to staying in Uganda, in the matter of Saunders Terry Tobin and Semujju Cromweel Clifford (Minors)[12] Court observed that the requirement for an applicant to have stayed in Uganda for a period of one year was meant to ensure that all applicants acclimatize to our culture and way of life and also bond with their charges. This would entail that the applicant has first understood the culture and way of life of the child to a sufficient degree. That knowledge and experience would empower him to prepare the child for the foreign culture and way of life which is quite different from what they have been accustomed to.[13]
Section 46 (c) (d) and (e) set down more conditions that should be fulfilled by the petitioner as follows;
- doesn’t have a criminal record
- has a recommendation concerning his or her suitability to adopt a child from his or her country’s probation and welfare officer or other competent authority
- And should have satisfied the court that his or her country of origin will respect and recognize the adoption order.
Under Section 47(1) of the Children Act, the consent of the child’s parent is necessary for the adoption order to be made if the parents are known, but this requirement may be dispensed with under Section 47(2) of the Act if the parents are incapable of giving it.
1.3 Conclusion
It is important to check if you meet the requirements for adoption before petitioning court for an adoption order. Since adoption creates a lifelong relationship of parenthood between the child and adoptive parent, courts always ensure that adoption matters are decided in total consideration of the welfare principle and in the best interest of the child.
Prepared by
Alituha Jacob
[1] IN THE MATTER OF A PETITION FOR THE ADOPTION OF EDSON MUGAGA (A CHILD) BY ANASTASIOS MOUTAFIS AND GEORGIA NELLI GIANNIOTI, HCT-14-FD-AD-0015-2019
[2] ibid
[3] Section 48 of the Children Act as Amended
[4] Section 3 of the Children Act as Amended
[5] HCMA No. 0004 of 2008 (at page 4, 5 and 6)
[6] Adoption Cause No. 9 of 2017)
[7] (1970) AC 668 at page 710-711
[8] S.M. Cretney and J.M. Masson, Principles of Family Law ( London: Sweet and Maxwell 6th Edition) 2008 at page 723
[9] Bromley’s Family Law, 8th Edition at page 338.
[10] Jonathan Herring in Family Law 2nd Ed. At page 651.
[11] Adoption Cause No. 9 of 2017
[12] Misc cause No. 10/2017
[13] In The Matter Of Nakitende Aisha Jenny Namugeri (An Infant), Adoption Cause Nos. 016 And 017 Of 2018
