Court/Judicial body: High Court of Uganda (Jinja)
Date: February 10, 2010 CRC
Provisions: Article 12: The child’s opinion
Domestic provisions: The Children’s Act (sections 1, 3, 4 and 5)
Case summary
Background: Ms. Nakabugo was the paternal aunt of three children and had been taking care of them following the death of their father, though she had not been appointed as their legal guardian. Ms. Nakabugo and the three children were joint owners of a piece of land, and she sought to be appointed the legal of guardian of the children so that she could sell part of the land in order to provide for the children’s needs.
Issue and resolution: Guardianship. Insufficient information was provided by Ms Nakabugo for the court to determine whether making her the children’s guardian would best further their welfare.
Court reasoning: Relevant information that was not provided included information as to the existence of a mother or mothers of the children, how Ms. Nakabugo obtained powers to take care of the children, the quantity of land she wished to sell and details of other financial arrangements.
Excerpt citing the CRC and other relevant human rights [I]n all such applications the court only has the word of the applicant and in many cases the children who may be of too young [an age] to give details to the court of what is happening in their lives are not consulted. Neither are children who are 14 years and above who have the legal capacity to give evidence on oath consulted. This is contrary to Article 12 of the Convention on the Rights of the Child (CRC) which preserves the child’s right to be heard. Article 12(2) provides that the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. Uganda ratified the CRC on 17th August 1990 and it has more or less been re-enacted in paragraph 4 (c) of the First Schedule to the Children Act as follows: 4. Rights of the child. A child shall have the right… c) to exercise, in addition to all the rights stated in this Schedule and this Act, all the rights set out in the United Nations Convention on the Rights of the Child and the Organisation for African Unity Charter on the Rights and Welfare of the African Child with appropriate modifications to suit the circumstances in Uganda, that are not specifically mentioned in this Act.”
Notes: Ms. Nakabugo could make another application to be named as the children’s guardian, but she would have to provide adequate information to enable to court to make a decision that would leave “little or no room to prejudice the interests of the minors”. It is not known whether she made such an application.
CRIN comments: CRIN believes that this decision is largely consistent with the CRC in that the Court was unwilling to appoint the children a guardian without evidence that the decision was in the children’s best interests. This said, it is unclear from the Court’s decision whether the children old enough to form views were consulted in considering the request for guardianship as would be required under Article 12 of the Convention. In addition, the Court could also have cited Article 3 of the CRC, which clarifies that the best interests of the child must be a primary consideration in all actions cocerning children.
Citation: [2010] UGHC 123
Link to full judgement: http://www.ulii.org/ug/judgment/high-court/2010/13/