LAW RELATING TO ADOPTION

According to Articles 11(2) of the Constitution of the Republic of Uganda 1995 as

amended provides that a child under the age of 18 years neither of whose parents is a citizen
of Uganda, who is adopted by a citizen of Uganda shall, on application, be registered as a
citizen of Uganda.

Who is a child?
Under section 2 of the Children Act defines a child as a person below the age of 18 years.
The same was defined under Article 2 of the charter on the Rights of children as every
human being below the age of 18 years. This definition was further stated in Bromley's
Family law 12th Edition that a child is a person below the age of 18 years. This means
therefore that a child can be adopted.
What is adoption?
As per Black's Law Dictionary 8th edition adoption is the creation of a parent–child
relationship by judicial order between two parties who usually are unrelated; the relation of
parent and child created by law between persons who are not in fact parent and child. This
relationship is brought about only after a determination that the child is an orphan or has been
abandoned, or that the parents' parental rights have been terminated by court order.

Who has the power to grant an adoption order ?

We look at Jurisdiction.
This is the power of a court to decide a case or issue brought upon. Under section 44 (1)of
the children Act an application for an order of adoption maybe made to the Chief Magistrate
court's within the jurisdiction of which the applicant or the child resides and are both
citizens of Uganda.The other court is the High Court where the child or the applicant is not a
citizen of Uganda and the court may grant such an order which means that it's at courts
discretion subsection (2) says a child need not be a Ugandan to be adopted.

There are certain conditions and restrictions actually before grant of an adoption order which
include the following.
Who may apply for an order of adoption?
According to section 45 of the children Act
Subsection (1) says an adoption order may be granted to a sole applicant or jointly to where
a) The applicant or at least one of the joint applicants has attained the age of 25 years and at
least 21 years older than the child. In the matter of Mirembe Nansamba Clare ( a
minor)7, where a British uncle was awarded a custody order together with his wife despite
him ony being 16 years older than the child. Further in the case of Re Mark Kakembo
HCFC 169 of 2014 where the petition Angel Nakazibwe a sole applicant applied for an
adoption order which was denied because of the age difference between the petitioner and
the child.

b) Incase of an application by one of the spouses, the other has consented to the adoption.
(2) The court may dispense with the consent required under subsection (1) if the spouse
whose consent can not be found or is incapable of giving consent or the spouses are
separated permanently.
(3) A sole male applicant shall not adopt a female child and vice versa unless there are
special circumstances as an exceptional measure the making of the adoption order.In the
Matter of Mirembe (an infant)9 where the petitioner was a male and the child was a
female, but he was the maternal uncle who had been sending money for all the basic
necessities of life to the child like food, medication, clothing and education to the said child.
Court held that this qualified as exceptional circumstances in the eyes of the court and
adoption order was granted.
(4) The applicant must have fostered the child for at least 36 months under the supervision of
the probation and social welfare officer.
(5) A report shall be submitted by the probation and social welfare officer to assist the court
in considering the application and in addition require some other person or the local
authority to make report in respect of the adoption order
(6) An adoption order shall not be made authorising more than one person to adopt a child at
the same time. In the case of Re Sharon Asige (infant) Adoption cause NO 144 of 2009
UGHC
The petioners Ronaldo Gloetzner and Carol Gloetzner American citizens applied for an
adoption order of a 7 years old child and they were granted the order because they had
fulfilled all the conditions set out under section 45 of the Children Act.

Part 2
Conditions for adoption of a ugandan child by a ugandan citizen
1. Citizens .It should be noted that subject to section 44(1) (a) , both parties and tge child
must be Ugandan Citizens .

2.Age. Subject to section 45(1) (a) of tge Childrens Act where it is prescribed that the
applicants or atleast one of the joint applicants must have attained tge age of twenty five
years and atleast twenty one years older than the child .

3.Foster Care.Subject to section 45(4) of the Childrens Act ,it is mandatory that the applicant
has fostered the child within the period not less than twelve months under the supervision of
the Probation and Social welfare Officer .
This was further ellaborated in Re: Cindy Kiconco Matsiko and kirabo Crystal kamukama
H.C ADOpTION CAUSE NO.3 of 2018 where the court held that the proof of of foster care
was subject to issuance of a foster care order which should be presented in court .For it was
not sufficient that the report of the Social welfare l Officer that alleged that the Applicant had
fostered the children for a given period od time .
4.Report of the Probation and social welfare officer . It should be noted that subject to section
45(5) where it prescribes that the report submitted must state the ability of the applicants to
cater for the childs present and future needs and the fact that whether the child has bonded
with the applicant during the foster period .
In Re :Cindy Kiconco Matsiko and Kirqbo Crystal Kamukama ,the court found the social
welfare’s report wanting as it alleged that the applicants were suitable adoptive parents yet
they had not fostered the children .The children claimed that they had stayed with their
parents all through and not with the applicants .

5.Consent .It should be nited that subject to swction 47(1) of the childrens Act , Consent of
the parents if inown should be obtained .In Re:Arthur Shyaka Butare Adoption cause no. 61
of 2018 where the parents of the child consented to the adoption and proved to court that it
was in the best interest if the child who had intellectual disabilities to be adopted by his
grandmother who was a US citizen and lived in the US as it would help have his condition
better managed .
Fuethermore, Section 47(7) of the Childrens Act the court also recignises the consent of any
other person who is not the parent of the child but has rights or obligations in respect to the
child either by court order , agreement or customary rights , such consent must be obtained .
In OChaya Christopher and Sarah Ochaya in respect of Lamaro Lilian Ochaya (a child)
H.C.M.A 0028/2017 where the court required the consent of the grand Father and the
adoption was granted only it had been acquired .

6.Best interest of the Child . It should be noted that subject to the welfare principlte as to
parantage and the grant of custody , the court also considers the welfare of the child that it
schould be in the interest of the child that an adoption be granted .
This was ellaborated in RE: Arthur Shyaka Butare Adoption cause no .61 of 2018 where court
granted adoption of the child to the grand mother who was a Us citizen considering the fact
that it was in the best interest of the child that the adoption be granted since it would help
have the child’s condition of intellectual disability better managed .
An adoption order is a legal document issued by a court that formalizes the adoption of a
child by an adoptive parent or parents. It establishes a permanent, legal parent-child
relationship between the adoptive parents and the child, and terminates the legal relationship
between the child and their biological parents

In Uganda, adoption orders are issued under the Children Act (Cap 59) and are typically
granted by the High Court or a Magistrate's Court. The order typically includes:
1. The name and details of the adoptive parents.
2. The name and details of the child being adopted.
3. The date of the adoption.
4. The terms of the adoption, including any conditions or restrictions.
5. The revocation of parental rights of the biological parents.
The adoption order is a crucial document that confirms the adoptive parents' legal rights and
responsibilities towards the child, and provides a sense of security and permanence for the
child.

Section 46(1) provides that a person who is not a citizen of Uganda may in exceptional
circumstances adopt a child subject to the requirements listed under the provision.
a. Stayed in Uganda for atleast a year
b. has fostered the child for atleast 1 year under the supervision of a Probation and social
welfare officer
c. Doesn't have a criminal record.
In Ochaya Christopher and Sarah Ochaya in respect of Lamaro Lillian Ochaya police reports
from the applicants respective countries (Uganda and Australia) were accepted as proof that
they didn't have a criminal record, this was also backed with a postive interpol report.

d. has a recommendation concerning his or her suitability to adopt the child from his or her
country's probation and social welfare officer or any other competent authority.
Aurthur Shaka Butare the inter-country report showing suitability of the applicant to adopt
the child was submitted. Court ordered it be produced before it went ahead to grant an order.

e. has satisfied the court that his or her country of origin will respect and recognize the
adoption order.

For the purposes of an application to which this section applies, the probation and social
welfare officer referred to in subsection (1)(b) 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 authority to make a report in respect of the application

(3) The restrictions and conditions in section 45, other than subsections (4) and (5), apply to
an application to which this section relates.

(4) The court may, in exceptional circumstances, waive any of the requirements specified in
subsection(1). In Re Musinguzi Davis alias Elijah David Harper (a child) the applicants had
fostered the child for nine months, the court waived the requirement from 12months because
the applicants were to travel back to USA in a short time and needed to start processing the
child's documents immediately to travel with him.
In the matter of adoption of Apolot Betty the applicant had not fostered the child for
12months as she was away in the US working but visited occasionally while the child was
under the physical care of the her appointed third party to do the physical caring while she
met the needs. In this case the adoptive parent had minor children and also permanent
employment and it was not proper for them to put all this duties for 12months thus there was
a genuine cause for the constructive fostering and in that period the applicants had visited the
child four times saying for two weeks each time.

(5) The following persons may facilitate the courts of law with information to protect the best
interest
of the child—
(a) advocates;
(b) Probation and Social Welfare Officers; or
(c) a guardian ad litem for children.
[subsection (5) inserted by section 14(c) of Act 9 Notwithstanding the provisions of this
section, inter-country adoption shall be considered as the last option available to orphaned,
abandoned or legally relinquished children, along a continuum of
comprehensive child welfare services.

(7) For purpose of this section, continuum of comprehensive child welfare services means a
broad
range of preventive services and community based family-centered alternative care options
which may include family preservation, kinship care, foster care and institutionalisation.

Part 3

Adoption by a non citizen

According to the blacks law dictionary 7th edition, a non citizen is the one who does not
come from aparticular country or state and the constitution of the republic of uganda defines
a non citizen as thw one who doesnt belong to chapter 3 The childrens act provide for the
adoption procedures and conditions for granting the adoption order.

Section 44 – 48 of the Children Amendment Act, permits adoption of Ugandan children by

non-citizens in exceptional circumstances and with particulars reference to this case, upon
fulfilling the following conditions:-
1. The applicants have attained 25 years and are at least 21 years older than the
child.
2. The applicants have lived in Uganda and fostered the child under the
supervision of a probation and social welfare officer for a period of one year.
3. The applicants have no criminal record.
4. The applicants have received recommendation from their home country
concerning their suitability to adopt a child and that that home country will
respect and recognize the adoption order.
5. Where the child’s parents are known, their consent is mandatory save for
specific exceptions
6. The applicants are liable and prepared to support the child
According toSection 45 lays down the conditions for granting the adoption order , and
45(1)(a) it may be granted to a joint or sole applicant where atleast one has attained twenty
five years and is atleast 21years older than the child
b) in case of an application by one of the spouses , the other must have consented
and for a non national to be granted adoption order they must have attained 25years or
20years older than the child and in the case of Re: Birabwa mutaka (adoption cause number
14 of 2018)
Where the applicants were citozens of usa and they were aged 32 and 31 amd this was relied
on by court to grant them an adoption order because they had fulfilled section 45(1)(a) of the
children act

Nocriminal record: according to section 46(1)(c) of the children act states that for a non
citizen to be granted they must have no criminal record and thats why the applicants in the
case of Re birabwa were granted the adoption order because they had no criminal record and
it was evidenced by a report from their native country .

Lived in uganda and fosteted the child for a specified period: this is another condition
relied on by court in granting the order as per section 461(a)&(b) as ammended which is a
period of 1year and this is very crutial in that the court wont grant the applicant the order if
they dont fulfill it and this was inthe case of Re katumba and Nakitende where by the
applicants had not fostered the child for the above period as per the law but rather granted
powers of artoney to a care taker and court held that one of the parents had to come and stay
with the children for a period of 1year and then he would grant them the order there fore he
denied them on the fact that they had not fostered the child for that period of time .

Consent from the parents ; for a non citizen to be granted an adoption order , they must
have gotten consent from the parents of the child is known and still consent can be revoked at
any time before pronounciation of the order and in the case of Re birabwa the father of the
child and grand Patentsof the child had signed and consented for the order to be awarded and
thia was relied on by justice Luswata and ended up awarding the applicants adoption because
consent from the parents was obtained as per section 47of the children act . And still under
consent if the child has fourteen years his consent must be obtained unless it is imposible for
him pr her to express thy wishes.

Recommendation concerning his or her suitability to adopt a child: every national must
get a recommendation from their probation officer from the home country or any other
competent authority concerning the applicants suitability to adot a childand also proof that
the country shall respect the order and in the case of re birabwa ,The applicants had filed a
home study report compiled by Wasatch International Adoptions, a Hague certified and
licensed adoption agency based in the State of Utah in the USA and this was proof that they
were capable of adopting the child and still the country would respect the order hence court
ended up granting them the order.
Report from the welfare officer : The national shall be required to get a report from the
probation officer about how the relationship between the applicants have been moving on
especually during the fostering stage and court shall rely on it to grant or deny the order and
in the case of Re birabwa mutaka the officer had submitted a report provong the capability of
the applicants becaus they had stayed with the child for a long time and taken care of her well
hence court ended up granting them the order.

Documents required for application of the adoption order

1. Petition to court
2. Reports from the welfare and probation officers
3. Documentary evidence of consent to adoptio as per section 47(1)
From the parent and from the child if 14years as per section 45(6)

4. Criminal record clearance from the applicants jurisdiction as per section 46(c)

Part 4

According to Section 51 of the Children’s Act on paragraph (a) and (b) it is to the effect
that all rights, duties, obligations and liabilities of the person and guardians in relation to
future custody, maintenance and education of the child, including all rights to appoint a
guardian and to consent or give notice of consent to marriage are extinguished and those
rights, duties, obligations and liabilities transfer to the Adopter.
In the case of Re X.D. (2019), the court considered the child’s well-being, emotional stability
and relationship with the adoptive parents in its ruling following futile efforts to allocate his
biological parents anywhere. The petitioners welcomed the child to their family caring for
him for two years and when the court had an opportunity to observe the child with the
petitioners as they appeared before court; it was evident that the child had bonded with
them and their biological children. The child looked to be flourishing and happy with the
petitioners who were the only parents he had ever known anyway and fulfilled the necessary
requirements under law to be appointed adoptive parents to the child. Therefore, once the
Court granted the application and made an order for adoption in consideration that this
was in the best interests of the child; all rights, duties, obligations and liabilities in
relation to custody, maintenance and education of the child that the biological parents
had possessed transferred to the adoptive parents.
In accordance with section 46A subsection (1) from paragraph (a) to (f) of the Children’s
(Amendment) Act, an adoption order can be rescinded or revoked on application by the
adopted child, a parent of the adopted child or other person who was a guardian in respect of
the child immediately before adoption, the adoptive parent of the child, any person who
consented to the adoption, the Minister in the case of an inter-country adoption or any person
with a justifiable cause. However, subsection (2) paragraph (a) and (b) of the same section
maintain that an Adoption Order may only be rescinded or revoked only if rescission of the
order is in the best interests of the child, witnessed in the matter of Deborah Alitubeera
C.A. No.70 of 2011 wherein the Court emphasized that the welfare principle is paramount
consideration in making decisions in matters concerning children, or if the order was obtained
through fraud or misrepresentation.
Additionally, section 46A subsection (3) paragraph (a) and (b) of the Children’s
(Amendment) Act entails that where an adoption order is rescinded, the adoption order shall
cease to apply in respect of the child concerned and all responsibilities, rights and other
matters which had been previously terminated by the adoption order in respect of that child
shall be restored. Subsection 4 paragraph (a), (b) and (c) of the same section maintains
that when the Court is rescinding an adoption order, it may make an appropriate placement
order in respect of the child concerned, may order that the child be kept in temporary safe
custody until an appropriate placement order can be made and may make an ancillary order
where necessary for restoration of the child.