ISLAMIC UNIVERSITY IN UGANDA (MAIN CAMPUS)

FACULTY OF LAW, 2020/2021

FAMILY LAW II CLASS NOTES

UNIT ONE: THE LAW ON CHILDREN

a. Development of the Law of Children in Uganda

The Government of Uganda ratified the UN Convention on the Rights of

Children (UNCRC) in 1990. Since then significant progress has been made on
the observance of children’s rights to survival, development and protection.
The challenges however remain the fulfillment of the basic rights of children
which facilitates the realization of other rights.

It’s the duty of the Government of Uganda to ensure that all chides rights are
protected, respected and promoted. Art. 12 of the UNCRC obliges State
parties to assure a child who is capable of forming her own views the right to
express those views freely in all matters affecting the child, the views of the
child being given due weight in accordance with the age and maturity of the
child.

As part of Uganda’s mandate the ministry of gender, labour and social

development provides guidance to stakeholders on promotion and protection
of children’s rights.

b. Definition of Children

Article 257(c) & Section 2 of the 1995 Constitution (Amended) & Children
Act (Amended) 2016 defines a child as a person under the age of eighteen
years. This is mandated and verified by Article 1 of the UNCRC which
specifies that the determination of the child varies depending on your
community and tribal heritage. For instance girls may be perceived as adults

Prepared by Mr. Mugisha Ismail Page 1

at an earlier age than boys of the same age because they grow faster than
boys.

The Constitution of Uganda regards the fetus as child (Art. 22(2)) where its
states that “No person has the right to terminate the life of an unborn child
except as may be authorized by law” (the fetus is unborn child who has been
in the embryo for over 8 weeks (3 months and above). and the Penal Code of
Uganda further states Section 212 of Penal Code that “Any person who,
when a woman is about to be delivered of a child, prevents the child from
being born alive by any act or omission of such a nature that if the child had
been born alive and had then died, he or she would be deemed to have
unlawfully killed the child, commits a felony and is liable to imprisonment for
life”.

In summary the child is a person of 8 weeks after conception up to 18years

of age.

c. Rights and duties of Children

The Rights of Children are provided for under Art.34 of the 1995
Constitution (amended) as follows

i. Children shall have the right to know and be cared for by their
parents or those entitled by law to bring them up.
ii. The child is entitled to basic education which shall be the
responsibility of the State and the parents of the child.
iii. No child shall be deprived by any person of medical treatment,
education or any other social or economic benefit by reason of
religious or other beliefs.
iv. Children are entitled to be protected from social or economic
exploitation and shall not be employed in or required to perform
work that is likely to be hazardous or to interfere with their
education or to be harmful to their health or physical, mental,

Prepared by Mr. Mugisha Ismail Page 2

 spiritual, moral or social development. (For employment
purposes children shall be persons under the age of sixteen
years).
v. A child offender who is kept in lawful custody or detention shall
be kept separately from adult offenders.
vi. Special protection should be accorded to orphans and other
vulnerable Children by both Government and parents/guardians.

The Rights of the children are also provided for under Section 4 Children Act
(amended) 2016 as follows

i. The right to Live with his or her parent or guardian;

ii. The right to express his or her view, belief or opinion on any
matter that affects his or her wellbeing;
iii. The right to Access any information to which a parent, guardian
or other person in authority deems critical to the child’s well-
being;
iv. The right to Be registered after birth;
v. The right to have A name and nationality;
vi. The right to Inherit property where applicable;
vii. The right to Safety, privacy, information and access to basic
social services;
viii. The right to Leisure which is not morally harmful and the right to
participate in sports and positive cultural and artistic activities;
ix. The right to use any social amenities or other resources available
in any situation of armed conflict or natural or man-made
disasters;
x. The right to be treated without discrimination of any kind,
irrespective of his or her race, colour, religion, belief. Age, family
status, culture, language, ethnicity, nationality, or social origin,
citizenship, gender, disability if any, political or social opinion,
property or any other condition;

Prepared by Mr. Mugisha Ismail Page 3

 xi. The right to effective legal aids including representation in all
civil, criminal administrative proceedings.
d. Rights and duties of Parents towards Children

Every parent or guardian shall have parental responsibility for his or her child
which shall include among the following

i. Duty to education and guidance of the child.

ii. Duty to take the child for immunization;
iii. Duty to provide adequate diet to the child.
iv. They duty to buy and provide clothing to the child
v. The duty to provide shelter to the child
vi. The duty to medical attention to the child
vii. Duty to protect the child from discrimination, violence, abuse
and neglect.

Read the following Cases

1. Fenzi Vs Nabbosa. Misc. Applic. No. 06 of 2012

2. Kiyemba Vs Batte. Divorce Cause No. 127 of 2018.
3. Ochaya & Anor. Vs Lamaro. Misc. Applic. No. 28 of 2017.
4. Nakalule Vs Kakooza. CA No. 47 of 2008.
5. Ndyabahika Vs Adyeri, Misc. Applic. No. 69 of 2019.

UNIT TWO: PARENTAGE

a. Who may apply for parentage?

At common law the presumption of law is that every child born in wedlock is
child of that marriage however where the parentage of the child is disputed
Section 67 Children Act (Amended) 2016 stipulates that any person who is
the mother or the father of a child or even the guardian of a child or then the
child himself or herself through a next of friend may make an application for
a declaration of parentage by complaint on oath to a family and children

Prepared by Mr. Mugisha Ismail Page 4

court having jurisdiction in the place where the applicant resides for
summons to be served on the man alleged to be the father of the child; or
the woman alleged to be the mother of the child or guardian.

b. Declaration of parentage

In declaration of parentage court will consider a number of factors, the mere

fact that the child neither resembles nor does not resemble the presumed
parent is not conclusive evidence of parenthood or otherwise. In the case of
Petelonia Mpirirwe vs. Oliver Ninsabimana [1994] Karl 88 it was held
that evidence of similarity in physical features between a child and the
alleged parent is admissible to prove paternity but not conclusive evidence.

Court may however consider past conduct to declare parenthood for instance
in Wynn jones Vs Wandau petro [1966] EA court held that the letter
from the parent expressed in endearing terms and saying that he still
remembered “that night” undoubtedly tendered to prove that he was the
father of the child.

c. Proof of Parentage

Section 70 Children’s Act (Amended) 2016 the burden to prove parentage

shall lie on the person alleging it. As such where there is a dispute over
fatherhood according to Section 69(4) Children Act (Amended) 2016 the
court may, on the application of any party to the proceedings or on its own
motion, make an order, upon such terms as may be just, requiring any
person to give any evidence which may be material to the question,
including a blood sample for the purpose of blood tests.

d. When the application may be made

Prepared by Mr. Mugisha Ismail Page 5

Under Section 68 Children Act (Amended) 2016 an application for a
declaration of parentage may be made during pregnancy or at any time
before the child attains eighteen years of age; or within three years after the
death of the alleged father or mother and this should be with leave of the
family and children court.

When the application of parentage is lodged the court shall primarily

consider the welfare of the child, the time of knowledge of the alleged father
or mother or of the birth of the child, as the case may be, by the applicant,
the conduct of the alleged father or mother where he or she knew of the
birth of the child alleged to be his or her child, or his or her conduct towards
any other person having the custody or control of the child.

An application for a declaration of parentage may be made whether the child

or the alleged father or mother is in or outside Uganda.

The family and children court to which an application is made for declaration
of parentage shall issue a summons to the person alleged to be the father or
mother of the child to appear before the court on a day named in the
summons.

On the appearance of the person summoned, or on proof that the summons

was duly served on him or her or left at his or her place of abode seven days
or more before the hearing, the court shall hear the evidence of the
applicant and shall also hear any evidence tendered by or on behalf of the
alleged father or mother.

If the evidence of the applicant is corroborated in some material particular

by other evidence to the satisfaction of the court, the court may adjudge the
person summoned to be the mother or father of the child, as the case may
be.

In proceedings for the declaration of parentage, the court may, on the

application of any party to the proceedings or on its own motion, make an

Prepared by Mr. Mugisha Ismail Page 6

order, upon such terms as may be just, requiring any person to give any
evidence which may be material to the question, including a blood sample
for the purpose of blood tests.

Any person sought to be tested must be made a party to the proceedings.

e. Effect of the declaration of parentage

Under Section 72 Children Act (Amended) 2016 a declaration of parentage

by a court shall have the effect of establishing a blood relationship of father
and child or of mother and child and, accordingly, the child shall be in the
same legal position towards the father or the mother as a child actually born
in lawful wedlock.

A declaration of parentage shall not by itself confer rights of custody of the

child upon the declared father or mother.

Read the following Cases

1. In Re: Jovan Ssenyonjo. (Infant) Family & Children Cause No. 331 of
2013.
2. In Re: Matovu (Infant) Family & Children Cause No. 286 of 2013.
3. In Re: Edema (Family & Children Cause) No.03 of 2017.
4. Sserunjogi & Anor. Vs Nkuubi (Originating Summons) No. 07 of 2019.
5. Yusuf Amili Vs Babirye. CA No. 109 of 2013.

UNIT THREE: CUSTODY OF CHILDREN

a. Guiding principle.

Custody in the broadest sense means the sum total of the rights which a
parent may exercise over his child. These rights continue until the child
attains the age of majority.

The guiding principle for custody is the child welfare. Section 3 Children Act
(Amended) 2016 provides that the welfare of the child shall be of paramount

Prepared by Mr. Mugisha Ismail Page 7

consideration whenever the state, a court, a tribunal, a local authority or any
person determines any question in respect to the upbringing of a child, the
administration of a child’s property, or the application of any income arising
from that administration.

b. Application for custody & when it should be made.

Under Section 73 Children Act (Amended) 2016 the court may, on

application by a sole applicant or joint applicants, grant custody of a child on
such conditions as may be determined by the court.

The court may, at any time, revoke the grant of custody to one person and
make the grant to another person, institution or organisation. In reaching its
decision under subsection above the court shall primarily consider the
welfare of the child.

A person who unlawfully removes a child from the lawful custody of another
person, institution or organisation commits an offence and shall be dealt with
in accordance with this Act.

A Probation and social a welfare officer, mother, father or guardian of a child

may apply to the family and children court for an interim custody order
pending the determination of custody of the child by the court.

The application for interim custody shall be supported by affidavit of the

applicant.

The Court may issue an interim custody order, where the court is satisfied
that the child is suffering or likely to suffer harm if the order for the interim
custody is not issued; or the order is in the best interests of the child.

An interim custody order may, where appropriate, contain any direction,

prohibition or award.

c. Custody by agreement.

Prepared by Mr. Mugisha Ismail Page 8

Under Section 73(b) Children Act (Amended) 2016 the parents of a child
may enter into a written agreement to determine which of them shall have
custody of the child. Court may recognise an agreement made between the
parents of a child giving the custody of the child to one of the parents,
except where court finds that enforcing the agreement would not be in the
best interest of the child. Court shall also only recognise an agreement if it is
satisfied that there was no duress or fraud involved in making the
agreement.

f. Child of tender years

Where issues of custody of the child is between the father and its mother
and taking into account the paramount interest of the child custody of such
child especially when it’s of tender age must be granted to the mother as per
Justice Ntagoba in Samwiri Massa vs. Rose Achen [1978] HCB 297.

Read the following cases

1. Baguma Vs Mbabazi. HCT-00-CV-CA-No.03 of 2016.

2. Kasingye Vs Kasingye. CA No. 096 of 2014.
3. Kayhul Vs Kayhul. Divorce Cause. No. 123 of 2016.
4. In the Matter of Twesiga (Infant) Misc. Applic. No. 04 of 2008.
5. Sahabo Vs Kaneza Misc. Applic. No. 524 of 2019.

UNIT FOUR: MAINTENANCE OF CHILDREN

a. Who can make an application for Maintenance

Under Article 34(1) of the Constitution it provides that Subject to laws

enacted in their best interests, children shall have the right to know and be
cared for by their parents or those entitled by law to bring them up. This is
fortified further under Section 5(1) Children Act (Amended) 2016 which
states that it shall be the duty of a parent, guardian or any person having

Prepared by Mr. Mugisha Ismail Page 9

custody of a child to maintain that child and in particular that duty gives a
child the right to education and guidance, immunization, adequate diet,
clothing, shelter and medical attention. In addition Section 76(8) Children
Act (Amended) 2016 provides that Maintenance shall include feeding,
clothing, education and the general welfare of the child.

Section 6(1) Children Act (Amended) 2016 also requires every parent or
guardian shall have parental responsibility for his or her child. Where the
natural parents of a child are deceased, parental responsibility may be
passed on to relatives of either parent, or by way of a care order, to the
warden of an approved home, or to a foster parent.

Under Section 76(1) Children Act (Amended) 2016 any person who has
custody of a child and who is the mother of the child, the father of the child
or the guardian of the child may make an application for a maintenance
order against the father or mother of the child.

Under Section 76(2) Children Act (Amended) 2016 a child in respect of

whom a declaration of parentage has been made may also make an
application through a next of friend for a maintenance order.

b. When the application may be made

Under Section 76(3) Children Act (Amended) 2016 an application for a

maintenance order may be made during a subsisting marriage, during
proceedings for divorce, separation or nullity of marriage, during separation,
during proceedings for declaration of parentage, after a declaration of
parentage has been made.

Moreover under Section 76(4) Children Act (Amended) 2016 the application
may be made at any time during pregnancy or before the child attains
eighteen years of age.

Prepared by Mr. Mugisha Ismail Page 10

 c. Procedure, forum & documents required in applying for
maintenance

Under Section 76(5) Children Act (Amended) 2016 an application for a

maintenance order shall be made by complaint on oath to a family and
children court having jurisdiction in the place where the applicant resides,
and the summons shall be served on the father of the child or the mother of
the child.

Further Section 76(6),(7) Children Act (Amended) 2016 the court shall
issue a summons to the father or mother of the child to appear before the
court on a day named in the summons and on the appearance of the person
summoned or on proof that the summons was duly served on him or her,
seven days or more before the hearing, the court shall hear the evidence of
the applicant and shall also hear any evidence tendered by or on behalf of
the father or mother; and the court may then, having regard to all the
circumstances of the case, proceed to make an order against the father or
mother for the payment to the applicant of a monthly sum of money as may
be determined by the court, having regard to the circumstances of the case
and to the financial means of the father or mother, for the maintenance of
the child, the funeral expenses of the child if the child has died before the
making of the order and the costs incurred in obtaining the order.

Under Section 76(9) Children Act (Amended) 2016 if the court thinks fit, it
may, in place of a monthly payment, order that a lump sum determined by
the court be paid into court and that the sum shall be expended on the
maintenance of the child.

Failure to pay can result into a warrant to attain earnings or levy distress for
the recovery of the maintenance money.

Under Section 77 Children Act (Amended) 2016 If at any time after the
expiration of one month from the making of a maintenance order, it is made

Prepared by Mr. Mugisha Ismail Page 11

to appear to a magistrate on oath that any sum to be paid under the order
has not been paid, the magistrate may, by warrant signed by him or her,
cause the person against whom the order was made to be brought before
him or her; and if that person neglects or refuses to pay the sum due from
him or her under the order, the magistrate may by warrant signed by him or
her direct that an attachment of earnings be made or that the sum due,
together with any costs incurred, be recovered by distress and sale or
redistribution of the property of the father or mother unless he or she gives
sufficient security by way of recognisance or otherwise to the satisfaction of
the court for his or her appearance before the court on a day appointed for
the return of the warrant of distress, but not more than seven days from the
taking of the security.

d. Variation of Maintenance order

Under Section 78 Children Act (Amended) 2016 on the application at any

time by the applicant for the maintenance order or by the person against
whom the maintenance order is made, the court may, after inquiring into the
circumstances, make an order either increasing or decreasing the amount of
money previously ordered to be paid under the order.

An order for maintenance against a father or mother shall cease to have

effect on custody of the child being granted to that father or mother or other
person in his or her place by the court.

An order for maintenance may be made and enforced against the estate of a
deceased person who has been declared the father or mother of the child
under a declaration of parentage.

Where a declaration of parentage has been made, an order for recovery of

arrears of expenses incurred on the maintenance of a child may be made
even after the death of the child.

e. Appointment of Custodian.

Prepared by Mr. Mugisha Ismail Page 12

Under Section 80 Children Act (Amended) 2016 Whenever a maintenance
order is made against the father or mother, a court may, at the time of
making the order or from time to time thereafter, on being satisfied that the
applicant is not a fit and proper person to have custody of the child or is
dead, or has become of unsound mind or is in prison, appoint a person who
is willing to have custody of the child to be the custodian of the child.

The appointment of a custodian may be made on the application of a

probation and social welfare officer or of the person having custody of the
child or of the person against whom the maintenance order is made.

The appointment of a custodian may be revoked and another person

appointed to have custody of the child.

A custodian shall have power to apply for the recovery of all payments in
arrears becoming due under a maintenance order as any other applicant
would have been entitled to do.

Where any order of appointment or of revocation of a custodian is made, the

court may also order the child to be delivered to the person appointed to
have custody of the child.

If a child in respect of whom a maintenance order subsists is wrongfully

removed from the person in whose custody he or she is, the court may, on
the application of the custodian, make an order that the custody of the child
be recommitted to the applicant.

f. Cessation Order

Under Section 82 Children Act (Amended) 2016 a maintenance order shall

cease to have any force or validity on the child attaining eighteen years.

Read the following cases

1. Namukasa Vs Kakondere. Divorce Cause No. 30 of 2010.

Prepared by Mr. Mugisha Ismail Page 13

 2. Wafula vs. Wanyoto & Anor. Civil Revision No. 17 of 2014.
3. Ayo Vs Ojambo. (Family & Children Cause) No. 28 of 1999.
4. Basheija Vs Basheija & Anor. Divorce Cause No. 12 of 2005.
5. Sutton Vs Sutton Divorce Cause No. 63 of 2013.

UNIT FIVE: ADOPTION OF CHILDREN

a. What is Adoption

This is the legal process whereby court extinguishes the ties between
apparent or guardian and vests the legal rights, duties and obligations in
another person called an adopter. Through adoption the child legally ceases
to be a member of the biological family and becomes a member of another
family (the adopting family). It severs the legal relationship between the
natural parents and places it in the position of the illegitimate child of its
adopting parents.

b. Who may apply for adoption

Under Section 45(1) Children Act (Amended) 2016 an adoption order may
be granted to a sole applicant or jointly to spouses where the applicant or at
least one of the joint applicants has attained the age of twenty-five years
and is at least twenty-one years older than the child or in the case of an
application by one of the spouses, the other has consented to the adoption

Under Section 45(2) Children Act (Amended) 2016 The court may dispense
with the consent if the spouse whose consent is required cannot be found or
is incapable of giving consent, or the spouses are separated and living apart
and the separation is likely to be permanent.

Section 45(3) Children Act (Amended) 2016 an adoption order shall not be
made in favor of a sole male applicant in respect of a female child, or in
favor of a sole female applicant in respect of a male child, unless the court is

Prepared by Mr. Mugisha Ismail Page 14

satisfied that there are special circumstances that justify, as an exceptional
measure, the making of an adoption order.

c. Where is the application for adoption made

Under Section 44 Children Act (Amended) 2016 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 or to the High Court where the child
or the applicant is not a citizen of Uganda, and the court may, subject to this
Act, grant the application. A child need not be a Ugandan to be adopted.

d. Pre-requisites / Requirements for adoption

Under Section 45(4) Children Act (Amended) 2016 the application shall not
be considered unless the applicant has fostered the child for a period of not
less than twelve months under the supervision of a probation and social
welfare officer.

Section 45(5) Children Act (Amended) 2016 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.

Under Section 45(6) Children Act (Amended) 2016 where the application is
by spouses jointly, an adoption order shall not be made authorizing more
than one person to adopt a child at the same time.

More so under Section 46(1) Children Act (Amended) 2016 A person who is
not a citizen of Uganda may in exceptional circumstances adopt a Ugandan
child, if he or she has stayed in Uganda for at least one year, has fostered

Prepared by Mr. Mugisha Ismail Page 15

the child for at least one year under the supervision of a probation and social
welfare officer, does not 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 office or other competent authority and has satisfied
the court that his or her country of origin will respect and recognise the
adoption order.

Under Section 46(5) Children Act (Amended) 2016 the following persons
may facilitate the courts of law with information to protect the best interest
of the child and such include Advocates, Probation and Social Welfare
Officers or A guardian ad litem for children.

e. Rules as to the procedure for adoption

Under Section 49(1) Children Act (Amended) 2016 the Chief Justice may by
statutory instrument make rules regarding all matters for the procedure to
be followed by the court in adoption proceedings.

Section 49(2) Children Act (Amended) 2016 the rules may provide for the
admission of documentary evidence of any consent to adoption, the
admission of evidence, documentary or otherwise, to determine the age of
the child, a probation and social welfare officer to prepare a report for the
court to help determine whether the adoption order will be for the welfare
and best interests of the child, the conduct of adoption societies or similar
bodies in placing children for adoption.

f. Effect of the adoption order

Under Section 51 Children Act (Amended) 2016 upon an adoption order

being made all rights, duties, obligations and liabilities of the parents and
guardians in relation to the 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 there shall vest in, and
be exercised by and enforceable against the adopter all such rights, duties,

Prepared by Mr. Mugisha Ismail Page 16

obligations and liabilities in relation to the 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 short an adopted child acquires the right to inherit where his adopted
parents die intestate and the child loses the right from his natural parents
even if they die intestate he cannot inherit from them as adoption
extinguishes any rights with the natural parents. (Read Section 52 & 53)

g. Right of disclosure

Under Section 55(1) Children Act (Amended) 2016 where a child has
attained the age of eighteen years, or, at an earlier age, on the child’s own
request or at the discretion of the adopter, the child shall be informed by the
adopter of the identity of his or her natural parents unless it is not in the
child’s best interests to do so.

Section 55(2) Children Act (Amended) 2016 the adopter parent shall inform
the child that he or she is adopted as soon as the child is of an age of
understanding.

Read the following cases

1. In Re: NS. (Adoption Cause) No.01 of 2019.

2. In Re: Victoria Babirye Namutosi (Adoption Cause) No. 09 of 2017.
3. In Re: Birabwa Mutaka (Adoption Cause) No. 14 of 2017
4. In Re: Katumba Francis & Nakitende Jenny (Infants). Adoption Cause
no. 16 of 2018.
5. In Re: Kyakutwika Patrick & Muyaya Jackson (Infants) Adoption Cause
No.18 of 2018.

UNIT SIX: GUARDIANSHIP OF CHILDREN

a. What is Guardianship?

Prepared by Mr. Mugisha Ismail Page 17

Guardianship is not defined by the Children Act but guardian is defined under
Section 1(w) Children Act (Amended) 2016 as a person having parental
responsibility for a child.

The Act further defines joint guardianship under Section 1(y) Children Act
(Amended) 2016 as ways through which two or more persons having
parental responsibility of a child.

b. Application for Guardianship.

Guardianship according to the children act is of three type’s legal

guardianship, customary guardianship and guardian appointed by
agreement.

i. Legal Guardianship

Section 43(a) Children Act (Amended) 2016 Legal guardianship of children

in Uganda is by citizens of Uganda and any person who is not a citizen of
Uganda shall not be eligible to apply for legal guardianship.

Under Section 43(b) Children Act (Amended) 2016 for Application for legal
guardianship of a child it May be made by any person above the age of
eighteen years shall be made to the High Court, by petition and shall be
accompanied by a report of the probation and social welfare officer.

ii. Customary Guardianship

Under Section 43(c) Children Act (Amended) 2016 customary guardianship

means parental responsibility of a Ugandan child by a Ugandan citizen
resident in Uganda in accordance with the customs, culture or tradition of
the respective people.

Under Section 43(c) Children Act (Amended) 2016 for application of

customary guardianship may be made by Family members who may appoint
a guardian of a child in accordance with their customs, culture or tradition

Prepared by Mr. Mugisha Ismail Page 18

where Both parents of the child are deceased or cannot be found or The
surviving parent is incapacitated or The child has no guardian or any other
person having parental responsibility for him or her and the guardian
appointed shall act as trustee in respect of the property of that child.

iii. Guardian appointed by Agreement.

Under Section 43(d) Children Act (Amended) 2016 The parent of a child
may, by agreement or deed, appoint any person to be a guardian and The
appointment made shall not have effect unless the agreement or deed is
dated and signed by the parent in the presence of two witnesses, one of
whom must be a probation and social welfare officer, and the other must be
a local councilor at LC I level.

c. Dispute between joint Guardians.

Under Section 43(e) Children Act (Amended) 2016 the court may appoint
two or more persons to act as joint guardians of a child and Where two or
more persons appointed to act as joint guardians in respect of a child are
unable to agree on any matter affecting the welfare of a child, any of them
may apply to the court for its direction.

d. Conditions for Guardianship

Section 43(f),(1) Children Act (Amended) 2016 The court shall before
making a guardianship order itself that; There is no known relative or next of
kin of the child, The relative or next of kin are unwilling or unable to take
parental responsibility of the child, All alternative care options available to
the child have been exhausted, The child is suffering or likely to suffer
significant harm under present custody.

Consideration should also be given to the wishes of the child, having regard
to the age and understanding of the child, where in the view of the court, the

Prepared by Mr. Mugisha Ismail Page 19

child is able to understand the guardianship proceedings and Where the
child is twelve years of age or above, his or her consent to the guardianship
has been obtained, unless it is impossible for the child to express his or her
consent.

Under Section 43(f),(2) Children Act (Amended) 2016 The court shall
before making a guardianship order ensure that the applicant Has
continuously lived in Uganda for at least three months, Does not have a
criminal record and Has a recommendation concerning his or her ability as a
guardian from a probation and social welfare office or other competent
authority in Uganda or in applicant’s country of residence.

Under Section 43(f),(3) Children Act (Amended) 2016 The court shall not
make an order for guardianship, unless it is satisfied that the applicant has
not made, given or agreed to make any payment or other reward in
consideration of the guardianship.

Section 43(f),(4) Children Act (Amended) 2016 The court may dispense
with any consent required under this section if satisfied that the person
whose consent is to be dispensed with has abandoned, or deserted the child,
cannot be found or is incapable of giving consent or being a person
responsible for the support of the child, has persistently neglected or refused
to contribute to the support of the child.

Section 43(f),(5) Children Act (Amended) 2016 The court may, in addition
to the report of the probation and social welfare officer require a local
authority, the probation and social welfare officer in the relevant District in
Uganda or any other person to make a report in respect of the guardianship
application.

e. Grant of Guardianship order

Under Section 43(g) Children Act (Amended) 2016 The Court may, if
satisfied that the applicant has fulfilled the conditions for guardianship make

Prepared by Mr. Mugisha Ismail Page 20

an order for the guardianship of the child Except where the application is
made jointly by spouses, a guardianship order shall not be made to authorise
more than one person as guardian of a child.

f. Effect and duration of a Guardianship Order.

Under Section 43(h) Children Act (Amended) 2016 a guardianship order

shall vest parent responsibility of the child in the guardian.

A guardianship order shall remain in force until the child in relation to whom
it is issued attains the age of eighteen years.

The guardianship order shall cease to apply where the guardian dies or is
suffering from infirmity of body or mind

g. Termination/Revocation of Guardianship

Under Section 43(k) Children Act (Amended) 2016 A probation and social
welfare officer or a relative of a child under guardianship may apply to court
to revoke a guardianship order.

Section 43(k),(2) Children Act (Amended) 2016 The court may revoke a
guardianship order where It is satisfied that the guardianship order was
obtained by fraud or misrepresentation.

The guardian has not complied with the conditions issued by the court in
respect of the child or the guardianship.

The guardian has neglected the parental responsibility over a child.

Prepared by Mr. Mugisha Ismail Page 21

NOTE: Where the court revoked a guardianship order, the court shall upon
considering submissions by the Minister responsible for children affairs; place
the child under alternative care.

Read the following cases

1. In Re: Tebulotwa Agnes & Nakubulwa Norah Sebunya (Family cause)

No. 149 of 2016.
2. In the Matter of Kyeswa (Minor until 2030), Batwawula (Minor until
2027) & Sebaduka (Minor until 2024). Family Cause & Children Cause
No.32 of 2018.
3. In the Matter of An Application for Legal Guardianship by Michale Cane
Icardi Jr. & Laura Jean Icardi (Family & Children Cause) No. 02 Of 2016.
4. In Re: Onen Cliff & Laker Joy Onen (Minor) Misc. Applic. No.22 of 2018.
5. In Re: Kemigisha & Anor. (Family Cause) No. 107 of 2014.

UNIT SEVEN: OTHER COURT ORDERS FOR CHILDREN

As discussed above we have seen a number of court orders in regard to the

wellbeing and welfare of the child like the Adoption Order, Maintenance
Order, Custody Order, Order of Parentage & Guardianship Order however
there are also other orders in the children Act in relation to the children and
include the following

a. Care Order

Under Section 1(f) Children Act (Amended) 2016 defines a care order as an
interim care order. Section 19(b) Children Act (Amended) 2016 On the
application of probation and social welfare officer or an authorised person, a
family and children, Court may make a care order or interim care order,
placing a child in the care of the warden of an approved home or with an
approved foster parent.

Prepared by Mr. Mugisha Ismail Page 22

Under Section 21 Children Act (Amended) 2016 A family and children court
may only make an order if it is satisfied that the child concerned is suffering
or is likely to suffer significant harm and that the harm or probability of
harm, is attributable to the care given to the child, or likely to be given to the
child if the order were not made, not being what it would be reasonable to
expect a parent to give to a child; or the child’s being beyond parental
control.

b. Supervision Order

Under Section 1(kk) Children Act (Amended) 2016 means a supervision

order includes an interim supervision order. And the supervisor shall be the
person under whose supervision a child has been placed under a supervision
order or an interim supervision order.

Section 17 & 19 Children Act (Amended) 2016 Families and children court
shall not make a supervision order unless it considers that doing so would be
beneficial to the child. A supervision order when made shall place a child
under the supervision of a probation and social welfare officer while leaving
the child in the custody of his or her parents or relatives.

Under Section 22 Children Act (Amended) 2016 Before making an

application for a supervision order, the probation and social welfare officer or
an authorised person shall be satisfied that the local government councils
from village to sub county level where the child resides have dealt with the
matter without success there is need for continuous supervision enforced by
a court order.

Section 23 Children Act (Amended) 2016 The duties of a supervisor while a

supervision order is in force are to be friendly to, advise and assist the
supervised child, to advise the parents; to make plans for the child’s future in
consultation with the child and his or her parents or guardian, to apply to the
court to discharge or vary the order if necessary, to take such other
reasonable steps as may be necessary to reduce the harm to the child.
Prepared by Mr. Mugisha Ismail Page 23
Under Section 24 Children Act (Amended) 2016 a supervision order shall be
made for one year but may be extended for one further year on the
application of the probation and social welfare officer.

An extension of a supervision order shall require a written report by the

probation and social welfare officer.

A supervision order shall terminate when the child to whom it relates attains
eighteen years of age.

c. Foster Care Placement Order

Under Section 1(u) Children Act (Amended) 2016 Foster care placement
means the 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. And foster parent foster parent means a person not being the
biological mother, father or relative of the child who assumes parental
responsibility of the child by way of a care order.

Under Section 43 Children Act (Amended) 2016 Where a child has been
committed to an approved home under a care order, the district probation
and social welfare officer, in conjunction with the warden of the approved
home, may place the child with a person who is willing to undertake the care
and maintenance of the child, in this Part referred to as a “foster parent.

An application to foster a child shall be made to the district probation and

social welfare officer, except that a relative of a child without a parent or
guardian may foster the child without first applying to the district probation
and social welfare officer, and this Part shall not apply to him or her.

A foster parent in whose care a child is committed shall, while the child
remains in his or her care, have the same responsibilities in respect of the
child’s maintenance as if he or she were the parent of the child.

d. Exclusion Order

Prepared by Mr. Mugisha Ismail Page 24

Under Section 34 Children Act (Amended) 2016 a family and children court
may, in addition to, or in proceedings for a supervision order, care order,
interim supervision or interim care order, make an exclusion order
prohibiting a named person from having contact with the child or with the
child and persons looking after the child.

The court before making an exclusion order, a family and children court shall
be satisfied that it is necessary for the protection of the child and to
safeguard the child’s welfare and the family and children court may specify
the duration of the exclusion order.

Under Section 35 Any person who breaches an exclusion order commits an

offence and shall be dealt with in accordance with the law except that the
probation and welfare officer may proceed on behalf of the State against the
offender. A family and children court may vary or discharge an exclusion
order on the application of the person named in the order or of the child
concerned.

e. Recovery Order

Under Section 62 Children Act (Amended) 2016 When a court has been
informed on information on oath that a child has been removed unlawfully
from an approved home, it may make a recovery order directing any person
who is in possession of the child to produce him or her on request to any
authorised person, requiring the removal of the child by any authorised
person, requiring any person who has information leading to the child’s
whereabouts to disclose it, authorizing search of any premises where the
child is believed to be staying and specifying the name of the child in
question and the person who has the current main parental responsibility.

Section 63 Children Act (Amended) 2016 the following persons may apply
for a recovery order that is a person with parental responsibility for the child
or the probation and social welfare officer.

Prepared by Mr. Mugisha Ismail Page 25

 f. Search and Production Order.

Under Section 36 Children Act (Amended) 2016 A family and children court
may, in proceedings for an application for a care order, on hearing
information on oath, make a search and production order authorizing the
probation and social welfare officer, with or without a police officer, to enter
any premises specified in the order to search for and remove to a place of
safety, any child whom the probation and social welfare officer believes or
suspects is suffering or is likely to suffer significant harm.

Before searching the specified premises, the probation and social welfare
officer holding the order shall inform the secretary for children’s affairs of the
local government council of the area.

A child removed on a search and production order shall be produced in court

within forty-eight hours after his or her removal.

Read the following Cases

1. Re: Peter Sebuliba alias Namansa James. Misc. Cause. No. 37 of 2009.
2. Ayiko vs Lekuru. Divorce Cause No. 01 of 2015.
3. In the Matter of Yambuka (Patient) Misc. Cause. No. 40 of 2018.
4. In Re: Kambale (Infant) Family & Children Cause No. 03 of 2018.
5. In Re: Ssekitoleko Ibrahim & 2 Others (Family Cause) No. 22 of 2018.

Prepared by Mr. Mugisha Ismail Page 26