This also implies that court will consider factors such as;
1. The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
2. The physical, emotional, and educational needs of the child together with his age, sex, and background;
3. Any harm that the child has suffered or is likely to suffer; and how capable his parents or any other relevant persons (e.g. a step-parent) are of meeting his needs.
4. Under The Children (Amendment) Act any delay in determining the question of upbringing is deemed likely to prejudice the welfare of the child.
However, a court will only make an order if it considers that this is the only means of ensuring the child's welfare.
In Uganda, this position has been clearly defined under Section 4 of The Children’s (Amendment) Act, which are basically;
(1) The welfare of the child shall be of paramount 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.
(2) In all matters relating to a child, whether before a court of law or before any other person, regard shall be had to the general principle that any delay in determining the matter is likely to be prejudicial to the welfare of the child.
(3) In determining any question under subsection (1), court or any other person shall have regard to- (a)The ascertainable wishes and feelings of the child concerned, with due regard to his or her age and understanding;
(b)The child’s physical, emotional and educational needs;
(c)The likely effects of any change in the child’s circumstances;
(d)The child’s sex, age, background and any other circumstances relevant in the matter;
(e)Any harm that the child has suffered or is at the risk of suffering; and
(f) 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.
This position has been stated by, Hon. Chigamoy Owiny Dollo (As he then was) In the matter of David Twesigye (an infant) and in the matter of an Application by Dawn Pittman and Dustin Pittman HCMA No. 0004 of 2008( Fort Portal where he observed that, “according to Section 4 of the Children Amendment Act 2016 (hereinafter referred to as the Act), every child has the right to stay with their parents or guardians. However, the same Act allows for substitute care when the circumstances require; such substitute care would include adoption.
This therefore implies that the power is placed before High Court to decide on matters of adoption when it comes to the welfare of the child. As seen In Re: Hassan Kaaya (child) (Family Cause-2018/2) where court observed that, “Power is vested in the High Court to make an order for adoption if the welfare of that child will be met. It is provided in Section 3 of the Act that;
“(1) The welfare of the child shall be of paramount 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.
There is no universal definition of welfare. However the definition given by the court in J V C (1970) AC 668 best captures the provisions of our current legislation. “when all relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child…”
It follows therefore that the unique situation of every child who is a subject of an adoption application should be considered on the facts as presented bearing in mind their best interests.
What happens when the child wishes to live with either of the parents?
Guiding principle 3 of the First schedule of the Children’s Act, states that in ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding.
It is therefore important in determining the welfare principle as also reflected in the first schedule of the children’s Act, Cap. 59, The first guiding principle provides that whenever the State, a Court, a Local Authority or any person determines any question with respect to upbringing of the child, the child’s welfare shall be the paramount consideration. That is the position of the law as was emphasized in the case of Karanu Vs Karanu [1975] E.A 18.
Similarly in Nakalule v Kakooza (Civil Appeal-2008/47) where Justice Wilson Masalu Musene was of the view that,
“the Trial Court and the 1st appellate Court considered only the wishes of the Respondent to prevail, irrespective of whether they were prejudicial or detrimental to the interests of the children. The lower courts should not have left the welfare of the children at the mercy of the Respondent, to dictate on where the children and their mother should stay without due regard to their interests and rights. Counsel for the Respondent has submitted that the essence of this appeal is not necessary for the best interest of the children but more centered for the convenience of the Appellant.
I respectively disagree with the above proposition. And my reasoning is that welfare of the children cannot be considered while disregarding the wishes of their mother, with whom they were going to stay with in this case. The children will be psychologically and mentally tortured and may not even concentrate on their studies if their mother is uncomfortable or miserable. That is the reality of life which Courts in this country must be alive to.
This therefore implies that in determining the welfare of the child the wishes of their mothers should be placed into consideration as was seen in the above case where court held that,
“Children are at their best where both their mother and father are together and happy. But in the non-recommendable circumstances of separation or disagreements as is apparent in this case then it is better that the children are closer to their mother whereas both parents play a crucial role as far as the welfare of the child is concerned, there are certain nitty gritty detailed roles of their mothers which cannot be ignored or taken for granted. I find the reasoning of the Grade II Magistrate indeed very absurd and in total disregard of Gender Policy and generally the law with equality of men and women, husbands and wives as enshrined in the Constitution of this country and other enabling laws.”
Adoption and the Welfare Principle
Adoption is defines in the case of Juko Nicholas and Magezi (Infants) , where court defined adoption as the legal process where court extinguishes the ties between a parent and guardian and vests the rights, duties and obligations in another person called the adopter.
Therefore, the laws on adoption in Uganda have evolved with the coming in force of The Children (Amendment Act 2016.)
And an application for adoption proceedings is by way of motion in the high court and this as seen under Rule 3 of the Children (Adoption of Child) Rules S1_59_1, this implies that the statements according to rule 7 should be attached with affidavits and certificates which will be annexed proving one’s allegations and need to adopt the child.
And followed by the confirmation by the social welfare officer.
The principle Act(The children’s Act Cap 59) had restricted adoption for example a child whose citizenship was unknown could not be adopted and was only reserved for Ugandans as observed In Re: Juliet Jane Nakazibwe , where it was held that since the nationality of the infant was not known an adoption order could not be granted merely because he was an infant abandoned in Uganda, meaning this did not render the child a Ugandan Citizen.
This view completely disregarded the welfare principle as per Section 3 of The Children Act
Therefore, this position has evolved overtime as stated observed In Re: Hassan Kaaya (child) (Family Cause-2018/2) court observed that; two crucial points stand out in our current law on adoption.
1. Firstly, under all circumstances, the welfare of the child shall be paramount before any consideration is made by this court to allow an adoption as seen in the case of Deborah Alitubeera Civil Appeal No. 70/2011 and Re AM Adoption Cause No. 12/2017.
2. Secondly, inter-country adoption or specifically, a non-citizen of Uganda is allowed to adopt a Ugandan child only in exceptional circumstances.
Conditions and Restrictions for an Adoption order for Citizens and non Citizens.
The conditions are stated under Section 45 and 46 of the Children’s (Amendment) Act are.
Under Section 45
(1) An adoption order may be granted to a sole applicant or jointly to spouses where—
(a) 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;
(b) In the case 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)(b) 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.
(3) An adoption order shall not be made in favour of a sole male applicant in respect of a female child, or in favour of a sole female applicant in respect of a male child, unless the court is satisfied that there are special circumstances that justify, as an exceptional measure, the making of an adoption order.
(4) 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.
(5) 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.
(6) Except 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.
Whereas Section 46 of Both the Principle Act and the Amendment Act provide for the conditions and Restrictions of non-Citizens for an adoption which are;
(1) A person who is not a citizen of Uganda may in exceptional circumstances adopt a Ugandan child, if he or she—
(a) has stayed in Uganda for at least one year;
(b) has fostered the child for at least one year under the supervision of a probation and social welfare officer;
(c) does not have a criminal record;
(d) 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
(e) has satisfied the court that his or her country of origin will respect and recognise the adoption order.
(2) 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).
(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.
It is worth noting that by all means the interests of the child must always be considered first as stated by Lady Justice Eva K. Luswata in the case of In Re: Hassan Kaaya (child) (Family Cause-2018/2) in which she states that, “the significance of the welfare principle in matters concerning the adoption of children. According to Section 3 (3), of the Children’s Act, it would entail giving regard to;
(a) The ascertainable wishes and feelings of the child concerned considered in the light of his or her age or understanding.
(b) The child’s physical, emotional and education needs;
(c) The child’s age, sex, background and any other circumstances relevant in the matter.
(d) Any harm that the child has suffered or is at risk of suffering
(e) Where relevant the capacity of the child’s parents, guardians or others involved in the care of the child in meeting his or her needs.
She further states that; Bromley’s advice at page 338 is very pertinent.
“…in applying the welfare principle the Court must act in the child’s best interests…it should be appreciated that the Judge is not dealing with what is ideal for the child but simply what is the best that can be done in the circumstances…”See Bromley’s Family Law, 8th Edition”.
Therefore, above all in regards to adoption, the interests and wishes of the child are the first priority when one is considering adopting a child since it aligns to the welfare principle stated under the Children’s Act.
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