Court/Judicial body: High Court of Malawi
Date: 28 May 2008 CRC
Provisions: Article 3: Best interests of the child Article 21: Adoption
Other international provisions:The African Charter on the Rights and Welfare of the Child
Domestic provisions: Adoption of Children Act Malawi Constitution Section 11(Constitutional interpretation), Section 19 (Human dignity and personal freedoms), Section 30 (Right to development), and Section 211(International law)
Background: The petitioners are United Kingdom residents seeking to adopt a Malawi child who had been placed in an orphanage by his father. The adoption posed an issue as Malawi law required the adoptive parents and the child to be resident in Malawi prior to the adoption. In this review of the adoption petition the Court considered whether the adoption would be in the best interest of the child, taking into account his background, reports on his welfare and the intentions of the adoptive parents.
Issue and resolution: Inter-country adoption. Whether non-residents could adopt a child in Malawi. The Court decided that non-residents could adopt a child in Malawi where this is a last resort, in line with international human rights law.
Court reasoning: The Court examined the Adoption of Children Act which requires the adoptive parents and the child to reside in Malawi for a legal adoption to occur and considered the impact this requirement had on inter-country adoptions in Malawi. Malawi has ratified the both the UN Convention of the Rights of the Child (CRC) which permits intercountry adoptions where the child cannot be cared for in their country of origin ( Article 21), and the the African Charter on the Rights and Welfare of the Child (ACRWC) which provides for inter-country adoption as a last resort ( Article 24). Both instruments require the best interest of the child to be the paramount consideration in adoption. The Court said domestic law must be interpreted in compliance with the CRC and ACRWC and decided that, although the Adoption Act’s requirement of ‘residence’ sought to protect children in adoptions it did not always serve the best interests of the child. The Court said that residence cannot be the determining factor in adoption. Instead, the paramount consideration must be the best interests of the child, so where adoption by foreign parents is preferable it should be allowed. The Court considered whether there were alternatives to the adoption of the boy. The child was placed in an orphanage by his father who could no longer provide for him. The Court was not convinced there was a domestic alternative to find a permanent placement for the child. Furthermore, reports on the child’s welfare revealed that his development had so far been excellent while in the care of the petitioners. Taking into account the situation of the child, the Court ruled the adoption by the UK applicants to be in the best interest of the child. The Court decided it is appropriate for non-residents to adopt Malawi children where this a last resort and in the best interests of the child.
Excerpt citing CRC and other relevant human rights In particular the question has been whether binding international agreements . . . automatically form part of our law. It is not here that I shall dwell much on that debate. The position however is that Malawi ratified the Convention on the Rights of the Child (CRC) in 1991. We are also a party to the African Charter on the Rights and Welfare of the Child (ACRWC). These Conventions are binding on Malawi by choice. In other words, Malawi has consciously and decidedly undertaken the obligations dictated by these Conventions. It is therefore our solemn duty to comply with the provisions of the Conventions. If for a moment the argument that the Conventions are not part of our law found favour, then at least on part of the Court the duty is to interpret and apply our statutory law, so far as the spirit of the statute could allow, so that it is in conformity and not in conflict with our established obligation under these Conventions. And therefore that unless the statute, by its words and spirit compels our Courts to ignore international laws that is binding on us, the practice of our Courts is to avoid a clash and the way is to construe the domestic statute in such a way as to avoid breaching the obligation. . . . It is therefore my considered judgment that in determining this petition I am compelled to have regard to the two Conventions and other foreign case law as might be considered appropriate. Of particular relevance in this regard is Article 3 of the Convention on the Rights of the Child which rests the case on the paramount consideration in matters concerning children and provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.” More to the subject of adoption Article 21 provides: “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by the competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counseling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child care, if the child can not be placed in a foster or an adoptive family or can not in any suitable manner be cared for in the child’s country of origin. (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption.” The African Charter on the Rights and Welfare of the Child has similar provisions as above except to stress that inter-country adoption should be considered as the last resort.
Notes: The Malawi Supreme Court of Appeal has subsequently held that inter-country adoptions do not have to be a measure of last resort, contrary to the CRC.
CRIN comments: CRIN believes this decision is consistent with the CRC. Under Article 21 States must ensure that in adoption the interests of the child are the paramount consideration and for inter-country adoptions to occur as a last resort.
Citation: In Re: David Banda,  MWHC 3
Link to full judgement: http://www.malawilii.org/mw/judgment/high-court-general-division/2008/243/