Adoption
is a legal process whereby a person permanently assumes the parental rights and
responsibilities for a child from his or her biological parents. Adoption can
only be done through court process.
Who can
apply?
An
adoption may be granted to a sole applicant or jointly to spouses. The
applicant or one of the joint applicants has to be above 25 years and is at
least 21 years older than the child. If it is a joint application, the consent
of the other spouse has to be obtained. That is the law as provided under
section 45 of the Children (Amendment) Act of 2016.
For one
to adopt a child, they have to have fostered them i.e., lived together with
them and assume parental responsibilities in respect to the child for a period
not less than 12 months under the supervision of a probation and social welfare
officer in accordance with section 45(4) of the Children (Amendment) Act.
How is
the application made?
Where the petitioner(s) and
the child are all Ugandan citizens, the application for an adoption order shall
be made by petition to the chief
magistrate’s court, in Form A in the
Schedule to the Children (Adoption of Children) Rules SI 59 – 1. This is in
accordance to Rule 3(1) of the Children (Adoption of Children) Rules SI 59 – 1.
The petitioner has to present the petition ex-parte
(meaning alone without the other opposition party) to the Chief Magistrate in
chambers. The probational and social welfare officer has to be present as well
at the ex-parte hearing. The petition has to be served on the parents of the
child and the child herself if she is of the age of 14 years or above.
The contents contained in the petition have to be
verified by an affidavit annexed to it proving the allegations made in the
petition.
Forum
Section
44 of the Children (Amendment Act) 2016 provides that an application for an
adoption order may be made to a chief Magistrate’s court within the
jurisdiction of which the applicant or the child resides where both the child
and the applicant are citizens of Uganda. In this case, since the child is in a
foster care placement home in Kololo, the application can be made to the
Children and Family court at City Hall court.
Consents
The following consents have to be obtained and stated
in the petition;
-
The consent of the parents in Form C
-
Consent of the child if he/she is over 14
years in Form D.
In this case, the children 1 year old. Therefore, the
consent form required will be Form C. Rule 8(1) provides for form C in the
schedule to the Children (Adoption of Children) Rules SI 59 – 1.
The age of the child has to be proved by documentary
evidence in court, that is, Birth certificate. Where all documents have been
filed, the court shall fix a date for hearing and give notice to all parties in
Form F set out in the schedule.[1]
Rule 8(2) of the Children (Adoption of Children) Rules
SI 59 – 1 provides that all consents shall be sworn before a commissioner for
oaths and shall be submitted together with the affidavit of verification with
the petition or accompanied by a separate affidavit of verification.
Report from Probation and social welfare officer.
Section 45(5) of the Children
(Amendment Act) 2016 provides that the probation and social welfare officer
shall be required to submit a report to assist the court in considering the
application; and the court may, in addition, require some other person or the
local authority to make a report in respect of the adoption application.
In this case, the probation and social welfare officer
for Kololo area is resident at Kampala City Council Division. His name is Peter
Mayanja. His contact is 0701965890.
Rule 10(1) of the Children (Adoption of Children)
Rules SI 59 – 1 provides that the report is prepared to help court determine
whether the adoption order will be for the welfare and best interests of the
child.
Rule 10(2) provides that the report covers that period
of fostering and shall include the following, among other matters –
(a) the child’s relationship with –
(i)
the foster parent or parents and details
of any guidance or correction required.
(ii)
other members of the foster family.
(iii)
neighbours and other persons outside the
child’s foster family; and
(iv)
any other person who is not a parent of
the child who may have rights or obligations under any order of court or
agreement or customary law or otherwise;
(b) the medical record and current state of health of the
child and the foster family;
(c)
the education standard of the child with details
of schools attended and progress made during fostering;
(d) the views and wishes of the child if ascertainable;
(e) the nature and type of the residential home or homes
lived in during fostering;
(f)
the past, current and likely future
economic status of the foster family;
(g) the character of the foster family including nay
criminal proceedings taken against members of that family during the fostering
and officer’s opinion as to whether that should prevent the adoption;
(h) a summary of the involvement of the probation and
social welfare officer during fostering, and the assessment of the discharge of
their duties by foster parents, during the statutory period, and the
verification of the statements made by the applicant in the adoption applicant
concerning the character of the applicant and the position of his or her
country or origin relating to the adoption;
(i)
a summary of the involvement of the
secretary for children’s affairs of the local council 1 committee (if any); and
(j)
a recommendation to the court of the
course or courses of action most likely to advance the best interests and
welfare of the child.
Waiver of the fostering period.
Section 45(4) of the Children (Amendment Act) 2016
provides that the application shall not be considered unless the applicant has
fostered the child for a period of not less than twelve months under
supervision of a probation and social welfare officer. However, this
requirement may be waivered in exceptional circumstances where the adoption is
in the best interests of the child.
Adoption order.
The adoption order is granted in Form G after the
determination of the petition.
Legal effect of adoption.
All the rights of the
biological parents and guardians in relation to the adopted child are
extinguished and vested in the adopting
parent(s) as if the adopted child were the natural child of the adopter.[2]
The
adopted child enjoys the same rights as the biological children including in devolution
of property and cannot be left out of the will of the adopting parent(s).[3]
During
adoption cases, the welfare and best interests of the child are of paramount importance
and the overriding factor that court considers to grant adoption. That’s why
court requires a report form a probation and social welfare officer in order to
guide it in granting adoption to the petitioners.
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