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In re: Michael (an infant)

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Court/Judicial body:   The High Court of Uganda (Kampala)
Date: June 23, 2009 CRC
Provisions:   Article 3: Best interests of the child
Other international provisions:Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption
Domestic provisions: Constitution of the Republic of Uganda ( Article 34: rights of children) Children Act (Section 3: the welfare principles and children’s rights set out in this Act shall be the guiding principles when making any decision based on the Act; Section 46: conditions under which a person who is not a citizen of Uganda may adopt a Ugandan child) Civil Procedure Act (Section 98: the court has the power to make such orders as may be necessary to achieve justice where there are no specific legislative provisions) Judicature Act (Section 33: the High Court shall grant all such remedies as it thinks just to any parties involved in proceedings)

Case summary

Background: Michael was a baby who had been abandoned at a taxi park. The identity of Michael’s parents was unknown, and subsequently he was placed in an orphanage. A married couple from America applied for legal guardianship of Michael. However, a person who is not a Ugandan resident may only adopt a Ugandan child in exceptional circumstances, and must comply with the various conditions set out in section 46 of the Children Act. These conditions include the requirement that the person must have stayed in Uganda for at least three years prior to the adoption.

Issue and resolution: International adoption. The Court found that exceptional circumstances existed in favour of the prospective adoptive parents, and that it would be in the best interests of the child to grant the requested order of legal guardianship.

Court reasoning: The Court was satisfied that the applicants were suitable adoptive parents. No governmental support was available for Michael’s care, and there was no offer from Ugandans or non-Ugandans resident in Uganda to adopt him. Accordingly, it was in Michael’s best interests for the application to be granted. Furthermore, at times the effect of section 46 of the Children Act is to deny children the possibility of care by the only adoptive parents available to them. This runs counter to the Ugandan Constitution, which requires that laws relating to children should be enacted in their best interests, as well as Article 3 of the Convention on the Rights of the Child. The Court held it was time to reform this aspect of the law by making inter-country adoption possible where there are no suitable local adoptive parents, and for this reason Uganda should sign up to the The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.
Excerpt citing CRC and other relevant human rights 20.      Section 46 of the Children Act does not possibly run counter to our Constitution only but may also be in conflict with Uganda’s obligations under Article 3(1) of the International Convention on the Rights of Child which entered in force on 2nd September 1990 which obliges national legislative bodies, among others, to make the best interests of the child a primary consideration in all its actions concerning children which includes law making. 21.      It is time to reform this aspect of our law by making inter-country adoption possible where there are no suitable local adoptive parents in order to ensure that all our children grow up in the loving care of their natural parents or adopted parents and are able to develop to their full potential. This would bring the law in line not only with our Constitution and International Obligations but also with international practice under the Hague Convention on the Protection and Co-operation in respect of Inter-country Adoption of Children. It is time too for Uganda to sign up and ratify this convention for the benefit of its children and take advantage of the availability of a worldwide/international network of government agencies for the protection of children.

Follow up:   The Court reiterated its statement regarding the Hague Adoption Convention in the subsequent cases of In re: Nicholas Mwanje and Brenda Nakidde and In re: Irene Najjuma. Nonetheless, Uganda is still not a party to the Hague Adoption Convention, and section 46 of the Children Act has not been repealed/amended. As a consequence, similar cases to this one have been brought before the Ugandan courts more recently, for instance the joined cases of In re: Deborah Joyce Alitubeera and In re: Richard Masaba.

CRIN comments:   CRIN believes this decision is consistent with the CRC in that, as recognised by the Court, the best interests of the child should be a primary consideration in all proceedings that concern them.  In line with the Court’s statements on inter-country adoption, Article 21 of the Convention also provides that inter-country adoption “may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.”

Citation:   [2009] UGHC 40

Link to full judgement: