Court name
High Court of Uganda
Judgment date
25 October 2010

In Re: M A (An infant) (Family Cause-2010/187) [2010] UGHC 75 (25 October 2010);

Cite this case
[2010] UGHC 75
Short summary:

HR, Parental care and protection, Movement and residence


THE REPUBLIC OF
UGANDA



IN THE HIGH COURT
OF UGANDA HOLDEN AT KAMPALA



FAMILY CAUSE NO.
187 OF 2010



IN THE MATTER OF
M A (INFANT)



AND



IN THE MATTER OF
AN APPLICATION FOR LEGAL GUARDIANSHIP OF M A BY TJERK JOHANNES VAN
DER WOUDEN AND DINEKE VAN DER WOUDEN DE VRIES







BEFORE: HON. LADY
JUSTICE MARGARET C. OGULIOUMO



RULING:



The applicants bring
this application under Article 139(1) of the Constitution of
the Republic of Uganda 1995, sections 14, 33 and 39 of the
Judicature Act cap 13 and section 3 of the children Act, cap
59 for orders that:-




  1. Tjerk Johannes Van
    Der Wouden and Dineke Van Der wooden De Vries, be appointed legal
    guardians of M A.



  2. That the infant be
    allowed to immigrate to the Netherlands to live with Tjerk Johannes
    van der Wouden and and Dineke Van De Wouden
    De Vries.



  3. Costs of the
    application be provided for.




The application is
supported by the statutory declarations of the applicants, the
affidavits of Moses Gwasaze – the biological
father of the
infant; of William edema – Administrator of the home, where the
infant has been staying; of Buhinda Sam –
the LCI chairman of
Grant Road village, Old Boma Parish, Jinja district, and of Opio
Ouma, the Senior Probation and Social Welfare
Officer, Jinja
district.













The grounds of the
application are as follows:-




  1. The infant was
    abandoned by the mother.



  2. The biological
    father of the infant has failed to look after him and so surrendered
    him into the care of the children’s
    home.



  3. The applicants wish
    to provide the infant with a home, parental love and care.



  4. The application is
    for the welfare and best interests of the infant.




At the hearing of
the application, the applicants were represented by Mr. Peter Nyombi
assisted by Agnes Nazziwa.



The High court has
original unlimited jurisdiction in all matters.



See: Article 139
(1)
of the Constitution.



The Judicature Act,
Section 14 grants the same jurisdiction to the Court.



In the exercise of
that jurisdiction, the court has powers to grant orders absolutely or
on such terms as it thinks fit.



See: Section 33
of the Judicature Act, cap 13



A child has been
defined as any person below 18 years of age



See: Section 2
of the Children Act



Issue No. 1-
whether the application is for the welfare and in the best interests
of the child, M A?



In making any
decision concerning a child, the welfare of the child is of paramount
consideration.



See: Section 3
and paragraph 1(b) of the first Schedule to the Children Act.



Mr. Nyombi, counsel
for the applicant submitted that, according to the affidavit of Moses
Gwasaze – the biological father
of the child, the child was
born on 12thMarch, 2005 – see birth certificate.



That the biological
mother of the child, Nabulime Aisha abandoned him long ago and her
whereabouts are unknown and on 6th November, 2007, the
Probation Officer, Jinja District requested Welcome Home to assist
the child because, the mother had abandoned
the child.



Counsel submitted
that the father is a peasant who has no income. Welcome home was
granted a care Order to take care of the infant
- see copy of the
care order on the court record.



Mr. Sam Buhinda, the
LC1 chairman of Grant Road village, Boma Parish, Jinja district wrote
a letter to the Probation Officer requesting
for assistance for the
child.



The child had been
staying in the Dam after being abandoned by the mother and the father
could not care for it.



In view of the fact
that the mother of the infant has abandoned him and the father too
cannot look after him, court is of the view
that, the application if
granted will be for the welfare and in the best interests of the
child –M A.



Issue No. 2 –
whether the applicants are suitable guardians for the child?



Mr. Nyombi submitted
that, the applicants are Dutch citizens – see copies of their
passports attached as Annextures “A”
to their statutory
declarations.



The applicants are
married - see copy of marriage certificate – Annexture “B”
to the statutory declarations. The
applicants have no children.



The first applicant
is gainfully employed as a Sales Manager with Olive Netherlands and
the 2nd applicant a physiotherapist chemist at a
University and reference letters from their respective employers are
attached to their
respective statutory declarations as “C”
and “B”.



They will therefore
be able to take care of the child’s physical needs.



Counsel submitted
that, the applicants have undergone a Home Study and been recommended
as suitable Adoptors– see copy of
the Home Study on the court
record.



Mr. Nyombi contended
that, the applicants have no criminal record and a copy of their
criminal clearance is attached as Annextures
“E” and “B”
to their respective statutory declarations.



Both applicants have
been found to be mentally and physically healthy and medical
certificates to that effect are attached to their
statutory
declarations as annextures “C” and “T”.



Counsel argued that,
section 3 of the Children Act states that, in determining
matters affecting children, the most important factor to consider is
the welfare
of the child.



That this
application is for the welfare of the child for the following
reasons:-




  1. The mother of the
    infant abandoned him and her whereabouts are not known.



  2. The father of the
    infant has failed to look after him and the infant was found at a
    dam by the LCI chairman.



  3. The father
    surrendered the infant into the custody of the children’s
    home(Moses Gwasaze the father) was present in court
    and did not
    object to the guardianship.



  4. The applicants wish
    to provide the infant with a home, parental love and care.




In view of the
above, court is of the view that the applicants are suitable
guardians for the child.



Consequently the
application is allowed in the following terms and conditions:-




  1. The applicants,
    Tjerk Johannes Van Der Wouden
    and Dineke Van Der Wouden De
    Vries
    are appointed legal guardians of the child, M A.



  2. The applicants are
    directed to file the order with the Registrar of Documents, Uganda
    Registration Services Bureau, Ministry of
    Justice and Constitutional
    Affairs, Kampala.



  3. The applicants are
    directed to register the order with the Netherlands Embassy in
    Kampala and the Ugandan Embassy in the Netherlands



  4. The applicants are
    directed to obtain a Ugandan passport for the child and to renew it
    from time to time as required by the law.



  5. The applicants are
    permitted to travel out of Uganda with the child



  6. The applicants are
    permitted to adopt the child in the Netherlands so that they can fix
    the residence of the child permanently
    and the child will be able to
    benefit from the entitlements due to biological and adoptive
    children of Dutch citizens..



  7. The petitioner are
    directed to register the order with the authority responsible for
    family and child welfare in the Netherlands,
    and file a report once
    every year to the Registrar Family Division, High Court, Kampala,
    regarding the state of the welfare and
    development of the child
    until the child is 18 years of age or until directed otherwise.



  8. The court makes no
    order as to costs.









Margaret C. Oguli
Oumo



JUDGE




25/10/2010



Present:




  1. Agnes Naziiwa,
    counsel for the applicants



  2. Betty Lunkuse –
    court clerk



  3. Oliver Nantamu –
    Research Assistant













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