Court name
HC: Family Division (Uganda)
Judgment date
28 February 2019

In Re: K and K (Adoption Cause-2019/3) [2019] UGHCFD 21 (28 February 2019);

Cite this case
[2019] UGHCFD 21

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

ADOPTION CAUSE No. 03 OF 2019

IN THE MATTER OF THE ADOPTION OF K & K BY N AND N

 BEFORE: Hon. Lady Justice Olive Kazaarwe Mukwaya

RULING

The Petitioners

In their amended petition filed on their behalf by their legal representative and holder of their power of attorney, the petitioners, N (57) and N (53) averred that they are Ugandan citizens and holders of passports No.DA****** and No.DA****** respectively. They were married on 15th April 19.. at All Saints Cathedral Kampala. The petitioners have five children, AK (30), KN (29), MG (28), NN (27) and NG (23). The petitioners currently reside at New York ....Hollister Avenue Rutherford, NJ, ..... USA and when they are in Uganda they reside at [REDACTED] Bugolobi, Kampala.

The 1st petitioner is an employee of the United Nations in New York where he works as a staff member of the United Nations Secretariat. The petitioners did not appear in court at all but were represented by their attorney, Gina Mirembe throughout the proceedings. Copies of the petitioners’ passports, their marriage licence, L.C.1 Introduction letter, proof of employment and letters from Interpol are attached to the affidavit of the 2nd petitioner and marked ‘A’, ‘B’, ‘C’, ‘D1’, ‘D2’, F1, F2 .

The petitioners are jointly seeking to adopt the children, K and K both female children aged 17 and 16 years old respectively. The amended petition was supported by the affidavits of Ms. Gina Mirembe, the holder of the powers of attorney, the Probation and Social Welfare Officer, Nakawa Division, Ms. Hilda Cheptoris and it was further supported by the unequivocal consents of Mr. MA, the biological father of the minors and a biological brother to the 2nd petitioner and Ms. KB, the children’s biological mother. The children who were both above 14 years of age also gave their consent to the petition.

The Children

K and K were born on [REDACTED]  and [REDACTED] respectively at Mulago Hospital. They are the first and second born children of MA and KB of [REDACTED] Entebbe Road, Wakiso District. The minors have one more sibling, a brother M who is 11 years old.

Ms. Hilda Cheptoris, the Probation and Social Welfare Officer attached to Nakawa Division, averred in her sworn affidavit that she supervised the petitioners for a period of thirty six months as they fostered these children and been in constant communication with the petitioners over the welfare of the children. She further prepared a report attached to the petition recommending that the adoption be granted.

The Petition

The petitioners have petitioned this court for the adoption of the children.  According to their petition, they are related to the children being Uncle and paternal aunt respectively and are willing to adopt them both. They also stated that they have fostered the children since 2008 under the supervision of the Probation and Social Welfare Officer, Cheptoris Hilda and that they had no criminal record.

The purpose of the adoption of the minors by their uncle and aunt, the petitioners, is to enable them access better education in the United States of America since the 1st petitioner has the opportunity of accessing education benefits by virtue of his employment.

It was the duty of this Court under S.48 of the Children Act as amended to determine whether the petitioners were entitled to an order of adoption over the children as prayed in their petition. This court in so doing had to answer two questions:

  • Whether the children K and K were vulnerable children in need of an adoption order?
  • Whether the petition was in the best interest of the children?

It is important to first of all handle the matter to do with the jurisdiction of this petition. S.44 of the Children Act provides an application for adoption may be made to a Chief Magistrate’s court within the jurisdiction of which the child and the applicant resides where both the applicant and the child are both citizens of Uganda.

According to the pleadings, both the applicants and the children are citizens of Uganda and ordinarily this application may have been instituted at the Chief Magistrate’s Court. Before making the orders to transfer the matter to the lower court, this court closely scrutinized the petition. This revealed that the effect of the petition, if the orders were granted, would have been to remove the children from their residence in Uganda to the United States of America. This court decided to hear the petition because of the cross border implications of the prayers sought on the children.

Turning to the first issue, whether the children K and K were vulnerable children in need of an adoption order from the supporting documents to the petition, the biological parents of the children, Mr. MA and Ms. KB are alive and well. They appeared in court when the petition came up for hearing.

Ms. Cheptoris Hilda, the Probation and Social Welfare Officer of Nakawa Division Urban Council in her affidavit averred that she has supervised the petitioners for a period of thirty six months and has been in constant communication with them over the welfare of the children. She further attached a report dated 19th September, 2018 recommending that the petitioners be granted this application since they are in a better placed position to bring up the two children because of their parental capacity, unconditional love for the children and due to the fact that the biological parents have consented to the application.

There was no care order or foster care placement order to support the report of Ms. Cheptoris and to explain the circumstances under which the children were placed under the care of the petitioners when the biological parents of the children are alive and well. It was also not clear how, since 2008, the petitioners had fostered the children.

Care orders are provided for under Part V of the Children Act. S.27 of the Act provides as follows:

  1. A family and children court may, on the application of a probation and social welfare officer or an authorised person, make a care order or an interim care order placing a child in the care of the warden of an approved home or with foster parents.
  2. An application for a care order may only be made-
  • after all possible alternative methods of assisting the child have been tried without success and the significant harm from which the child is suffering or is likely to suffer requires his or her removal from where he or she is living; or
  • the danger to which the child is exposed is so severe as to require his or her immediate removal from where he or she is living.

S.28 provides for the purpose of a care order, first to remove the child from a harmful or potentially harmful situation and secondly to assist the child examine the circumstances that have led to the making of the order and to take steps to resolve the problem and return the child back to the community.

There is no evidence that has been adduced to suggest that the children in the instant case were ever the subject of a care order.

The only other way the children could have come under the foster care of the petitioners is under Part VI of the Children Act. S.43 (1) provides that; 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 the person who is willing to undertake the care and maintenance of the child, in this Part referred to as ‘foster parent’.

Since the petitioners never appeared in person when this petition was heard, this court was unable to interview them. While the Ms.Cheptoris averred in her affidavit that she had supervised the fostering of the children by the petitioners for the last three years, there was no evidence of this before this court. No reference numbers for the respective care order or foster care placement order was provided to support this averment. This court had the opportunity to interview the children and there was nothing to suggest that they had been fostered by anyone. By their testimonies they have always been and remain in the care of their biological parents, Mr. MA and Ms. KB. This court could therefore find no basis for Ms. Cheptoris to communicate that the petitioners had fostered the children even for one day.

Further, before she makes her recommendation for the petitioners to adopt, Ms. Cheptoris states:

‘K and K have been under the care and support from the applicants (who have been paying all the bills from medical, rent, school fees, etc...) The applicants took care of these children since the children were of tender age they have been responsible and have always fulfils their duties towards the children’

‘ I have carefully considered the social background of these children as being in need and came to the conclusion that this is genuine case where adoption is the best alternative care and have no doubt that the adoption application is purely needed and intended for the.....’

She adds,

‘That the other important point to note is whether it is in the best interest of the children for the adoption to be granted this is the best interest because these children have always been supported by the applicants financially, emotionally etc...’

Ms. Cheptoris’ report was loudly silent on the status of the children’s parents and their capacity to parent their own children and whether or not they had failed in that regard to justify adoption of the girls as the best alternative care.

In the affidavit in support of the amended petition signed by their legal representative, Ms. Gina Mirembe donee of their power of attorney, the petitioners made no mention of the care they had been providing for the children in the past. While Ms. Cheptoris who supposedly supervised their fostering of the children was full of glowing recommendation for the petitioners since they had met the children’s financial and emotional needs since they were of tender age, there was no such claim in the amended petition.

To add further mystery to this bizarre application, the children testified that they lived with their biological parents and they were under their care. They knew the 2nd petitioner as their Aunt who visited from time to time and was good to them. According to the children, they consented to the petition for adoption for education purposes since there were better opportunities the petitioners could provide in the United States of America. It was clear as crystal that the children were not in need at all and certainly not to the degree portrayed by Ms. Cheptoris in her report.

Documents submitted indicated that the petitioners had no criminal record and this court had no reason to dispute that. It was not clear whether the petitioners were privy to the probation and social welfare report relied on by their legal representative in support of this petition which was littered with falsehoods. If they were, that would make them party to the illegality.

Adoption of children is a form of alternative care. Under S.2 of the Children (Amendment) Act 9 of 2016, ‘alternative care’ means formal care options availed to a child without parental care. There is nothing to suggest that this is the situation in the instant case. On the contrary, the parents of these children have done such a good job in raising these two children that the 2nd child is currently attending one of the most prestigious girls’ schools in this country, without the help of the petitioners.

The children in this petition are not vulnerable. They have never been the subject of a care order nor a foster care placement order.

This petition is motivated by the desire of their parents to secure the best education for them in the United States of America which brings me to the second and final issue for determination by this court; whether the application was in the best interest of the children K and K?

The Children Act provides for the welfare principle guidelines which courts are enjoined to consider in answering this question.

S.3(1) provides that ‘the welfare of the child shall be of paramount consideration whenever the states, 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.’

S.3(3) provides that in determining any question under subsection (1), court or any other person shall have regard to:

  • the ascertainable wishes and feelings of the child concerned with due regard to his or her age and understanding
  • the child’s physical, emotional and educational needs;
  • the likely effects of any change in the child’s circumstances;
  • the child’s sex, age, background and any other circumstances relevant in the matter;
  • any harm that the child has suffered or is at risk of suffering; and
  • where relevant, the capacity of the child’s parents, guardian or any other person involved in the care of the child, and in meeting the needs of the child’

S.4 of the Children Act further stipulates that parental responsibility of a child lies with their parents and that children have the right to live with their parents except in circumstances where a competent authority finds that’s it’s in the best interests of the child to separate him or her from her parents.

Further still, the UN Guidelines for the Alternative Care of Children Assembly Resolution 64/142 of 24th February 2010 provides that;

14. Removal of a child from the care of the family should be seen as a measure of last resort and should, whenever possible, be temporary and for the shortest possible duration. Removal decisions should be regularly reviewed and the child’s return to parental care, once the original causes of removal have been resolved or have disappeared, should be in the best interests of the child.

15. Financial and material poverty, or conditions directly and uniquely imputable to such poverty, should never be the only justification for the removal of a child from parental care, for receiving a child into alternative care, or for preventing his/her reintegration, but should be seen as a signal for the need to provide appropriate support to the family.

Under section 51 of the Children’s Act, it is provided that the effect of an adoption order is to relinquish all parental rights that belonged to the biological parents and to bestow them upon the petitioners who would have full control on the minors in all eventualities including devolution of property.

In the instant case, the children appeared in this Court with their biological parents and gave their testimonies on oath. Their biological parents have been providing for the children till date and meeting all their needs. It was their testimony that they consented to the adoption because they wanted the children to go and study in the United States of America where the petitioners reside. It was evident to this court that the children are well taken care of here in Uganda.

It is this court’s finding this adoption petition is flawed and misconceived. The sole desire to attain academic advancement from the world’s leading institutions cannot be justification for severing parental ties between children and parents. The family unit is the basic and most fundamental unit of society and courts must not be seen to be lending a hand to their destruction in the circumstances such as have been presented in the instant petition.

This petition is hinged on the fact that the 1st petitioner is employed by the United Nations, and there is no guarantee that this fact will not change even 6 months from now. Adoption petitions must be considered with a long range view in mind, of its implications both positive and negative. It is a measure of last resort where the children are in dire need and there are no other alternative measures available to the children. There was no legal basis for Ms. Cheptoris Hilda, the Probation and Social Welfare Officer to make the recommendation that this adoption would be in the best interests of the children since the children in the instant petition are not in dire need. They are well cared for by their biological parents.

In light of the foregoing this court makes the following orders:

  1. The petition by N and N  to adopt the children K and K is denied.
  2. Cost of the petition to be met by the petitioners.

 

Olive Kazaarwe Mukwaya

JUDGE

Dated at Kampala this 28th day of February 2019