Court name
High Court of Uganda
Judgment date
20 December 2012

In Re: Jannifer Ayedeke (an infant) (Family Cause-2012/4) [2012] UGHC 158 (20 December 2012);

Cite this case
[2012] UGHC 158
Short summary:

HR, Parental care and protection, Movement and residence

THE REPUBLIC OF UGANDA

 

IN THE HIGH COURT OF UGANDA

FAMILY CAUSE  NO 004 OF 2012

IN THE MATTER OF ARTICLES  139 (1), 34 (1) AND (2).

OF THE CONSTITUTION OF THE REPUBLIC OF UGANDA

AND SECTIONS  14,33 AND 39 OF THE JUDICATURE  ACT CAP 13

AND

SECTION 2,3,4,5,6 AND  THE FIRST SCHEDULE OF THE CHILDREN ACT , CAP 59

AND

 

IN THE SECTION 98 OF THE CIVIL PROCEDURE ACT CAP 71  & ORDER  52 RULES 1 & 3  OF THE CIVIL PROCEDURE RULES S. 171-1

 

AND

IN THE MATTER OF AN INFANT JANNIFER AYEDEKE (CHILD)

AND

IN THE MATTER OF AN APPLICATION FOR LEGAL GUARDIANSHIP BY KATHLEEN MARY MARTHA MALONEY

 

 

 

BEFORE: THE HONOURABLE MR. JUSTICE STEPHEN MUSOTA

 

 

RULING

This is  an application for legal guardianship by one Katheleen Mary Martha Maloney  represented by MS/ Madaba  & Co. Advocates.  It is brought by way of Notice of Motion supported by the affidavit of the applicant.

 

The application seek for orders that;

  1. The applicant be appointed legal guardian of the infant Jannifer Ayedeke .
  2. The   applicant  be authorized to  obtain a Ugandan passport for the infant
  3. The  applicant be permitted to travel outside Uganda with  the infant  and  complete the adoption process in the U.S.A   The costs of the application be born by the applicant.

 

The grounds in support of this application are that:

a)       The infant is  an orphan   in urgent need of  care and protection.

b)      The applicant is a suitable  guardian currently fostering the infant

c)       The  pre-requisite consents from the relevant  authorities and individuals have been duly obtained; and

d)      It is in the  best interest of  the child  that this application is granted.

 

According to the supporting affidavit deponed by the applicant, she echoes the grounds of application and says she is  37 years old and is currently resident at Bukoto Brown Flats  B4  in Kampala .  She is an American Citizen  (See Annexture  “A”)  and she is currently employed by Clinton health access Initiative  (CHAI)  as a Malaria Diagnosis  Research Technical Advisor in Kampala  (Annex “C”) / and is desirous of eventually adopting the infant who lost the biological  mother on 21 November 2011 while  giving birth to the infant yet  the  biological father  Olupot  Robert, has no capacity to take care of the infant  or provide for her basic needs. That the biological   father has consented to the application  as per  annexture “E” .  The applicant secured a foster  care  order  annexture “F”  and since  February  2012  she has stayed with and fostered the infant pending grant of  the legal guardianship order.

 

The applicant reveals that she is devout Christian and undertakes to preserve the infants culture and heritage.  She is mentally, emotionally and   physically healthy as per medical report marked “H”.  The probation  and Social  Welfare of Mbale and Makindye  Division Kampala have  recommended the applicant and an adoptive  Home study  assessment Report  is attached as annexture “G”.

The applicant depones that she is financially stable   earning $ 65.000  p.a and can  meet Ayedeke’s needs  (annexture “J”) .  As per   the  background checks conducted by the state of  Louisiana, Interpol and  Probation Officer Makindye  the applicant has never committed crimes in violation of child care licencing Regulations and has no history  pertaining to child abuse or neglect.  The applicant intends to register the infant as a relative at the US embassy and says her home state will recognize this order  if granted.

 

I have considered this application as a whole.  I have studied the documentation in support of the application and submissions by Mr. Madaba learned Counsel for the applicant.  I am satisfied that the infant was borne on 20.11.2011 and the biological mother died at birth due to excessive bleeding.  The infant was without a mother one day after birth.  The biological  father, Olupot  Robert is a peasant  widower with 13 other children and  3 dependants under his care and custody.  He cannot provide for the special needs of such an infant and has no capacity to do so.

 

As a result, the father  placed the infant under the care of St Kizito  Babies  home, Mbale for emergency  care.  But an institution is not the best place to provide the needs,  care and love for this infant.  The applicant has been staying with the infant since January this year.  I am satisfied that the infant is in need of love  care and protection which  can only be provided by the  applicant an idea  supported by the indigent father.

 

 

Regarding  whether the applicant herein is a suitable guardian, I agree with  learned counsel for the applicant that since the applicant is currently fostering the infant and from the exhibited documents, there is already a bond between the child and the applicant she is suitable to be appointed a guardian.

The applicant is in gainful employment  earning an  annual salary of  $ 65,000.  With such  an income, she  can provide for the  infant with  the basic needs and necessities of life.  The applicant was evaluated by  Mutonyi Meres the Senior Probation  & Social Welfare Officer, Mbale  and  Bukenya Patrick the Probation and social Welfare  officer-Makindye  Kampala.  These officers unanimously   resolved that the applicant is capable of handling any responsibility and duties of parenting . 

I agree with these officers’ resolution.  The applicant is mentally , emotionally and physically healthy to be able to give the child a permanent  and safe  environment to live in as well as love, care and protection.  The applicant has no previous record of child abuse or neglect.

I also note that the applicant has secured the prerequisite consent of the relevant authorities.  The biological  father who has understood the implications has consented to the grant of this application because his daughter will be offered better opportunities of life such as a healthy diet, quality education, a permanent safe  home  and good medical facilities.

 

Regarding  whether  it is  in the  best  interest  and welfare  of the child  that this  application, is granted,  I agreed  with   the  submission by learned counsel for the applicant. 

Considering the evidence adduced and the law applicable, the welfare principle is paramount in considering the making of any decision concerning  a child.

 

In the instant case, the applicant has expressed the   desire  to provide the infant with a permanent home parental love, care and protection.  The biological  surviving parent  does not have the capacity or ability to provide  the basic needs of life to the infant.  As a result the child was put under the emergency  care of a child institution when she was barely one  month old.  While in St Kizito Babies home, she frequently fell sick and was under  weight. This  made the infants’ life vulnerable  and showed that the institution was not the best environment for the upbringing of this infant at  such tender age.

 

Given  that  since the foster  care order was given the bond with the applicant has grown and the child’s  emotional and physical health has tremendously improved, I am of the view that it is in the best interest of this infant that this order is granted.  I will consequently grant this application and order that:

 

  1. The applicant is  appointed legal  guardian of the infant Jannifer Ayedeke.
  2. The applicant is authorized to obtain a Ugandan Passport for the infant
  3. The applicant is permitted to travel with the infant outside Uganda.
  4. The applicant shall file an annual  report on the progress of the infant with the Registrar High Court Mbale, the probation office Mbale and give copies to the father of the infant  until she is  18 years.
  5. The applicant may in accordance with the laws of Uganda and the USA  adopt the infant in order to enable  the infant  enjoy  full social  privileges that  go with it.
  6. The Applicant shall meet the costs of this application

 

 

Stephen Musota

Judge

20/12/2012