Court/Judicial body: Niamey Tribunal of First Instance
Date: 18 January 2006 CRC
Provisions: Article 3(1): Best interests of the child
Domestic provisions: Civil Code, Articles 344-349, 361: conditions for adoption
Background: This case concerned the application for an adoption by a married couple in respect of a child – S. – who had been abandoned by its birth family. Under Article 344.2 of Niger’s Civil Code, only persons who do not have legitimate children are allowed to adopt. The applicants asked the Court to allow the adoption, despite the fact that they had five legitimate children, as they had formed an emotional connection with S. who had resided with them for a short period of time.
Issue and resolution: Adoption. Whether the adoption can be allowed in circumstances where the proposed adoptive parents already have children. The Court considered the best interests of the applicants’ children and the child to be adopted and decided to allow the adoption to proceed.
Court reasoning: At the outset, the Court noted that the aim of Article 344.2 is solely aimed at protecting the interests of these biological children. Based on the facts of the case, however, the Court decided that the interests of the biological children will not be endangered by the adoption. Furthermore, given the fact that S. was born out of wedlock to an unknown father and placed in a centre for children from difficult homes, it was clear that S. will have a better life with the claimants who have enough means to sustain her and who will be able to provide her with a stable family life. Therefore, the adoption was allowed to proceed, despite not meeting the requirements of Article 344.2 of the Civil Code.
Excerpt citing CRC and other relevant human rights as translated by CRIN: “Above all, and as Article 3(1) of the CRC states, “in all decisions … the best interests of the child shall be a primary consideration”. In this case, S.’s best interest is to be adopted by the claimants. Therefore, their request shall be granted.” In French language: “Attendu qu’au delà de tout, et comme le dispose l’ Article 3-1 de la Convention sur les Droits de l’Enfant “dans toutes les décisions…. L’intérêt de l’enfant doit être une considération primordiale “; Que l’intérêt primordial de S., en l’état est d’être adoptée par les époux I.A.I. ; Qu’il y a lieu de faire droit à leur requête (…).”
CRIN comments: CRIN believes this decision is consistent with the CRC. In addition to the best interests principle in Article 3 cited by the Court, the Court should have considered Article 21 of the Convention which states that the best interests of the child must be a paramount consideration in matters of adoption.
Citation: Niger, Tribunal de première instance de Niamey, 18 janvier 2006, 2006 TPI 12 (JN)
Link to full judgement: http://www.juricaf.org/arret/NIGER-TRIBUNALDEPREMIEREINSTANCEDENIAMEY-20060118-2006TPI12JN