Legal analysis of adoption and legal guardianship in Uganda
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Date
2016-05
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Kampala international international: School of Law
Abstract
Uganda is among the top 20 countries of origin for inter-country adoptions. Although the absolute numbers are not necessarily very high when compared to other African countries like Ethiopia, most of the adoptions of Ugandan children are to be finalized outside Uganda. This raises fundamental concerns regarding the procedures being used, the checks and balances therein to safeguard children and the remedies available to children in instances of unsuccessful/failed adoptions. The study on legal guardianship and adoption practices was undertaken to get an insight into the actualities of current practice. The study was unde1iaken in two parts - a desk review and a primary research component. During the desk review, 100 concluded applications for the period applications, 59 legal guardianship applications for purposes of inter-country adoption, and 6 legal guardianship applications) to assess the extent to which applications made and the subsequent court decisions were in accordance with existing legal provisions. Based on the findings of the desk review, key informant interviews were held with 18 law firms, 14 birth parents/family members, 5 probation and social welfare officers, 8 child care institutions, 2 adoptive parents, 6 Judges and 6 local council chairmen at village level during the primary research component. Whereas the law on adoption is clear, the Children Act does not provide any legal regime or rules of procedure for legal guardianship, in particular legal guardianship for purposes of inter country adoption. The couris thus rely on Article 139 of the 1995 Constitution of Uganda which confers to the High Court unlimited original jurisdiction in all matters including in adoption and legal guardianship. In practice, this provision is read and interpreted together with: Section 2, 3, 4, 5, 6, 36 (I) (c), 44 (I), 45, 46, 51 Children Act; Section 14, 33, 39 of the Judicature Act; Rules 3, 5, 6, 7 Children (Adoption of Children) Rules; Section 2, 3, 4, 5, 6, 98, and 101 of the Civil Procedure Act; and Order 52, Rules 1, 2, 3 of the Civil Procedure Rules. Overall, there is a general preference for legal guardianship over adoption applications because there is no legal requirement for fostering. There are more applications for boys than girls; and 52% of the children being adopted are below 5 years of age, highlighting the overall preference for young children. Only 11 % of the children had any pre-existing health condition, contrary to the widely held view that majority of the children are ill and that legal guardianship makes it possible for them to be taken out for urgent treatment. A majority of the children were staying in children's homes at the time of the application (41 %), while 35% were actually staying with their birth parents/family and 24% with the petitioners. The high number of children who were in children's homes at the time of the application were partly attributed to the tendency among parents/guardians to transfer children to a children's home just before the commencement of an adoption/legal guardianship process due to the expectation that this would speed up the process. Of the 72 children with known relatives, only 21 were total orphans. Grandparents relinquish the highest number of children followed by mothers. Despite the requirement that all prospective parents notwithstanding whether the child was institutionalized or not, first attain care orders to foster the child prior to adopting him/her, only26% of the applications for adoption (domestic and international) and legal guardianship for purposes of adoption had care orders. Even for those with care orders, it was a common finding of the study that care orders especially for children residing in children's homes were attained long after the child had physically resided with the home or the prospective foster parents, implying that the pursuance of a care order is motivated by a prospective interest in adoption and legal guardianship with regard to a specific child, and not necessarily as a result of due process. In up to 71 % of the applications, there was no period of physical bonding as implied by the 36 month period of pre-adoption fostering with only 16% of the applications fulfilling the stipulated period of fostering. Consent of the parents of a child if known, and any other person having any rights and obligation in respect of the child by court agreement or customary law is necessary for an adoption order to be made. Up to 91 % of the applications attached affidavits of consent, although there were still those few cases where proof of consent was not provided, especially for domestic adoptions. The high levels of consent are however somewhat deceptive, as consent is being largely influenced by recommendations from parents who have previously relinquished parental responsibility and a perception of the credibility of a children's home and that of the PSWO.
Consent is also in some instances being sought after the commencement of the adoption/legal guardianship process. Court decisions are generally guided by the physical/emotional needs of the child weighed against the capacity of the child's birth parents/guardians to meet these needs. This suggests a general acceptability of the correlation between proper child development and financial capacity, contrary to the UN Guidelines on Alternative Care for Children which holds that a child will not be removed from their birth parents/family solely on grounds of 'material and financial poverty'. The study established an overlap between actual poverty and an effortless approach to exonerating parental responsibility due in part to the misconception that foreign adoptive parents have a great deal of resources to take care of the child as well as support the birth family. In a number of instances, the decision to relinquish parental responsibility is also influenced by financial incentives from adoptive parents and children's homes. Although it is cardinal law that fraud vitiates everything including in matters of adoption and legal guardianship, comts are reviewing rather than revoking orders even when it is clear that the orders were fraudulently obtained. The reasons for these are multiple, and partly relate to the application of the best interest principle. Based on the study findings, it is recommended that Uganda takes quick steps to ratify the Hague Convention and put in place the necessary institutional mechanisms to regulate and oversee inter country adoptions, put a temporary suspension on the use of legal guardianship for purposes of adoption, address existing gaps within the Children's Act to make provisions that are not currently explicit more explicit, more vigilance by the Courts while processing applications including for domestic adoptions, better supervision and operational support to PSWOs, and continuous public education of the community on adoption and legal guardianship processes among others.
Description
A dissertation submitted to the faculty of law in partial fulfillment of the requirements for the award of a bachelor of laws degree of Kampala international university
Keywords
Law, Legal analysis, Legal guardianship, Uganda