ADOPTION – AN INTRODUCTION
It will be most proper to start this paper by a definition of adoption. The Black’s Law Dictionary 7th Edition defines adoption as the “Statutory process of terminating a child’s legal right and duties towards the natural parents and substituting similar rights and duties toward adoptive parents.” Adoption is also defined as a procedure by which people legally assume the role of parents in respect of a person who is not their biological child. From the foregoing, there are three sets of participants in an Adoption, the adoptive parent seeking the adoption order, the child to be adopted and the birth parents of the child.
It is impossible to adopt a child without a court order, a mere agreement in which a parent seeks to transfer his rights and duties to someone else is ineffective and will not be recognized as an adoption. The idea of defacto adoptions i.e. an arrangement where the child lives permanently with people who have put themselves in “loco parentis” to the child is ineffective to give the carer, parental responsibility to remove that of his parents.
Adoption is not the right option for all children. In some cases, some children who cannot live with their birth families need a secure, loving home throughout childhood and beyond without the necessity of the legal link to their birth family being severed. In these cases, the solution may be permanent fostering or special guardianship.
Under the 1989 United Nations Convention on the Rights of the Child, adoption is recognized as one of the forms of alternative care for children who have been temporarily or permanently deprived of their family environment, and also for children who are unable to remain in their family environment. It is described as a unique form of child care because it does provide permanent care and parenting for the adopted child as compared to other child care institutions that provide substitute family/home to a child. Thus, the adopted child is able to access quality life in a family setting. More so, the child becomes a complete member of the adopter’s family, takes on the adopter’s surname and assumes the rights and privileges of a biological child, including the right of inheritance. Additionally, a relationship of consanguinity between the adopted child and all members of the adopter’s family is established. As a result, marriage or sexual relationship between the adopted child and any member of the adopter’s family is absolutely prohibited.
ADOPTION IN NIGERIA.
HISTORY OF ADOPTION LAWS IN NIGERIA
The first known attempt at providing a statute on adoption in Nigeria dates back to April 1958 when a private member Bill was submitted to the Eastern House of Assembly. Although this 1958 Bill was unsuccessful, the first adoption legislation in Nigeria was eventually enacted in the then Eastern Region of Nigeria in 1965. This legislation was known as the Eastern Nigeria Adoption Law 1965 and it came into force on the 20th of May 1965. This law now applies in Anambra, Imo, Ebonyi, Abia, Enugu, Rivers and Bayelsa States. In 1968 an Adoption Law was promulgated for Lagos State. Subsequent to this, other States followed with their own laws. There are lots of similarities in these laws, just as there are some striking similarities between the Nigerian laws generally and the English Statutes on the topic. By contrast, none of the States in the Northern part of the country had any legislation on adoption.
ADOPTION LAWS IN NIGERIA:
- THE CHILD’S RIGHT ACT 2003
Over decades, the world acknowledged the need for a child focused International Law that will address the peculiar needs of children. On 20th of November 1989, the United Nations General Assembly adopted the Convention on the Rights of the Child (CRC) and in July 1990, OAU Assembly of Heads of States and Governments adopted the African Charter on the Rights and Welfare of the Child (ACRWC). Both international instruments contain universal set of standards and principles for survival, development, protection and participation of children. Subsequently, Nigeria signed both international instruments (CRC and ACRWC) and ratified them in 1991 and 2000 respectively. Following these commitments, the Nigeria Federal government passed a comprehensive Child ‘s Right Act 2003 into law. The Act incorporates all the right and responsibilities of children and consolidates all laws relating to children into a single law.
The Act addresses children generally but has specific provisions relating to adoption. Part XII of the Act provide for child adoption practices. It consists of 23 sections (124-148 of the Act).
An interesting part of the Act is Section 274 which provides thus:
(1) The provisions of this Act supercede the provisions of all enactments relating to‐
(b) adoption, fostering, guardianship and wardship; (c) approved institutions, remand centres and borstal institutions; and
(d) any other matter pertaining to children already provided for in this Act.
(2) Accordingly, where any provision of this Act is inconsistent with that of any of the enactments specified in Subsection (1) of this Section, the provision of this Act shall prevail and that other provision shall, to the extent of its inconsistency, be void.
This by itself has the effect of nullifying all State’s laws relating to adoption. However, although the Act is deemed to have come into force since 2003, the Adoption Laws enacted by the States are still extant. The reason is that adoption, in particular, and the rights and welfare of children, in general, are matters within the legislative competence of the States under the Constitution of the Federal Republic of Nigeria 1999.
Item 61 in Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 grants exclusive jurisdiction to the National Assembly on issues relating to “the formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary law including matrimonial causes relating thereto.” This obviously excludes adoption.
Hence, the National Assembly has no constitutional power to foist the Act on the States which is why the Act is to be domesticated by the States. The Act is enforceable as such only in the Federal Capital Territory.
As at 2011, the Child Rights Act 2003 has been promulgated into Law (passed by the State Houses of Assembly and assented to by the State Governors) in 24 states: Abia, Akwa-Ibom, Anambra, Benue, Cross River, Delta, Ebonyi, Edo, Ekiti, Imo, Jigawa, Kwara, Lagos, Nassarawa, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Niger, Bayelsa, Kogi and Taraba.
Prominent features of the adoption provisions of the Act include mandating State and Federal Governments to establish and maintain within their respective territories adoption services and facilities, harmonizing the procedure and criteria of eligibility for adoption as well as setting up a uniform institutional framework for adoption throughout the country.
Also, as a means of checking child trafficking under the guise of adoption, the Act prohibits inter-country adoption as well as the giving and receiving of any payment or reward as a consideration for or to facilitate adoption. We will consider this later in this paper.
HIGHLIGHTS OF THE ADOPTION PROVISIONS IN THE CHILD’S RIGHT ACT 2003
Section 125(1) of the Act provides, that
“Every State Government shall, for the purpose of adoption, establish and maintain within the State and, in the case of the Federal Government, within the Federal Capital Territory, Abuja a service designated to meet the needs of‐
(a) a child who has been or may be adopted;
(b) parents and guardians of the child specified in paragraph (a) of this subsection; and
(c) persons who have adopted or who may adopt a child,
and for this purpose, every Government shall provide the requisite facilities or ensure that the facilities are provided by approved adoption services as may be prescribed by the appropriate authority.”
There is no record that any of the States or even the Federal Government has set up this service. In some States that already have adoption legislation, it is the ministry responsible for social welfare and youth development that is in charge of adoption. There is no parallel provision in any of the pre-existing State legislation requiring the Ministry or Government agency to provide such facilities and services as are prescribed in section 125 of the Act. Moreover, no Nigerian statute (whether Federal or State) has ever provided for the setting up of approved adoption services and, as far as official records can support, none is in place anywhere in this country. The absence of such approved adoption services in Nigeria has created a yawning gap which private maternities and orphanages exploit by indulging in the illicit acts of child trafficking and facilitating unauthorized adoption.
PERSONS THAT CAN BE ADOPTED
Section 277 of the Act defines a child as a person under the age of eighteen years. Section 128 provides that a Court shall, not make an adoption order in respect of a child unless‐ “(a) the parents of the child or, where there is no surviving parent, the guardian of the child consents to the adoption; or (b) the child is abandoned, neglected or persistently abused or ill treated, and there are compelling reasons in the interest of the child why he should be adopted.” In the latter case, there will be no need to seek the consent of any persons. From the wordings of Section 128 (b), the standard of proof of neglect and ill treatment of such a child will be very high.
Some have suggested that in view of the risks inherent in separating a less-than-one-year-old child outright from his biological mother, there should be a proviso to the effect that, unless exceptional circumstances are shown, a child must be at least one year old before the parent(s) can voluntarily offer him for adoption.
It is important to note, here, that a single person (whether male or female) is not allowed to adopt a child of the opposite sex.
APPLICATION FOR ADOPTION AND JURISDICTION OF THE COURT
In Lagos State, the basic requirements for adoption are as follows:
- A typed application letter stating the reasons for the adoption, duly signed by the adopters and addressed to “The Special Adviser, Office of Youth and Social Development, The Secretariat, Block 7 Alausa, ikeja.
- Photocopies of the underlisted documents;
- Birth certificate of Adopters – 2 copies each.
- Marriage certificate of Adopters – 2 copies each
- Medical Certificate of fitness from a Lagos State General Hospital – Original copies each
- Proof of employment including
- Photocopy of Identity card – 2 copies
- ‘To whom it may concern’ letter from employer – 2 copies each
- Letter of Employment – 2 copies each
- Recent payslips (6months) – 2 copies each.
- Statement of Account – (6months)
- 4-coloured passport photographs each
- Tax clearance for the last 3 years – 2 copies each
After the successful review of all the above documents, the Adopters would have an interview with Director Social Welfare or his/her Representative. If the Adopters are able to convince the said Director Social Welfare of their suitability, then they would be required to pay the prescribed fees, complete appropriate forms and get a list of requirements. The screening of the Adopters would then follow. Their accommodation would be inspected. The Social worker would visit their respective places of work, interview their relatives, friends and neighbours with a view to confirming their suitability as a Parent.
Once the Adopters are found suitable, they then proceed to Mandatory Pre-Counseling Session, Panel Session and Post-Counseling Session. After a successful completion of all the Sessions, the Adopters are issued with a paper authorizing them to collect a child from Registered Orphanages. It is after the child would have lived with the Adopters for a minimum of 3 months that the legalization at the Family Court follows.
Section 162 of the Act gives exclusive jurisdiction on matters relating to children under the Act to the Family Court. Section 149 establishes the Family Court while Section 150 states that the Court shall be at 2 levels; The High Court and the Magistrate Court. The wordings of the Act seem to suggest that the Court ought to be separate by itself, designated as the Family Court with its Judges appointed by the Chief Judge of the State or by the Chief Judge of the Federal Capital Territory.
Only a few states, particularly, Lagos State, has set up the Family Court. This is a big lacuna in the face of the exclusive jurisdiction given to this Court in handling child related matters. It is suggested that efforts must be made to enlighten the States which have adopted the Child’s Right Act including the Federal Government to set up these Courts as a matter of utmost urgency without which the rights contained therein, including, application for adoption will be non justiciable.
Section 152(4) of the Act specifies the powers of the High Court level as follows: To:
- deal with all matters relating to the enforcement of the rights of the child as set out in this Act on the application for redress by a child who alleges that a right has been, is being, or is likely to be infringed in respect of him;
- deal with all offences punishable with‐ (i) death, or (ii) terms of imprisonment for a term of ten years and above;
- deal with other matters relating to a child where the claim involves an amount of fifty thousand Naira and above;
- deal with divorce and custody of the child; and
- hear appeals from the Court at the Magisterial level.”
The Magistrate Court is to try offences and deal with all matters not specifically assigned to the Court at the High Court level under this Section of the Act.
From this, it is clear that adoption is not under the exclusive jurisdiction of the High Court hence it should be within the powers of the Magistrate Court with appeals lying to the High Court. Section 136 of the Act which deals with the jurisdiction of the Court in adoption matters , however, provides that ‘subject to rules of the Court made under section 137 of this Act, the Court shall have exclusive jurisdiction to deal with an application for an adoption order. What complicates it the most is Section 138 (2) which seem to suggest that the Court at the High Court level could either exercise original or appellate jurisdiction in adoption matters. It is suggested that more clarity needs to be given to these provisions.
Section 126 provides thus:
“ (1) An application for adoption shall be made to the Court in such form as may be prescribed, and shall be accompanied with‐
(a) where the applicant is a married couple, their marriage certificate or a sworn declaration of marriage;
(b) the birth certificate or sworn declaration of age of each applicant;
(c) two passport photographs of each applicant ;
(d) a medical certificate of the fitness of the applicant from a Government hospital; and
(e) such other documents, requirements and information as the Court may require for the purposes of the adoption. “
This puts adoption applications within the purview of lawyers. Upon receiving the application, the Court shall order an investigation to be conducted by a child development officer; a supervision officer and such other persons as the Court may determine to enable it to assess the suitability of the applicant as an adopter and of the child to be adopted.
The Act places restrictions on inter‐State adoption. Except under a licence issued by the Minister pursuant to Section 145 of the Act, no person is to permit or cause or procure the care and possession of a child to be given to any person outside the State in which the adoption order was made with a view to getting the child adopted by any person.
A person who contravenes the Section above commits an offence and is liable on conviction to a fine of thirty thousand Naira or imprisonment for a term not exceeding one year or to both such fine and imprisonment.
The Minister in granting a licence for interstate adoption is to have consideration to the wishes of the child having regard to the age and understanding of the child.
The rationale for restricting interstate adoption is unclear. Many attribute it to the desire of the Government to fight child trafficking. It is submitted that it is not advisable to throw away the baby withthe bath water. Adoption is primarily for the good of the child. It is not encouraging for would-be-adopters that they will need to obtain the consent of a Minister to simply adopt a child. It is suggested that rather than inflict this restriction, the Government should put some other mechanism in place to determine the motives of the would-be-adopter and check mate any attempt at trafficking the child.
EFFECT OF ADOPTION
The effect of adoption is set out in Section 141 of the Act. It provides that on an adoption order being made all rights, duties, obligations and liabilities, including any other order under the personal law applicable to the parents of the child or any other person in relation to the future custody, maintenance supervision and education of the child, including all religious rights, right to appoint a guardian and to consent or give notice of dissent to marriage, shall be extinguished; and vest in, and be exercisable by and enforceable against the Adopter‐ all rights, duties, obligations and liabilities in respect of the future custody, maintenance, supervision and education of the child. Further, for the purposes of the devolution of the property on the intestacy of the Adopter, an adopted child shall be treated as a child born to the Adopter.
This is a far reaching effect and it is submitted that parties need to be duly educated on the import of an adoption order before consent is obtained.
ADOPTION LAWS OF LAGOS STATE
As it stands today, there are two laws governing adoption in Lagos State, The Adoption Law of Lagos State Cap A5 Laws of Lagos State and the Child’s Right Law of Lagos State 2007.
The Adoption Laws of Lagos State was first formulated in 1968. The adoption law has undergone at least three other amendments since then. Furthermore, most of the adoption and child welfare laws of former western and some mid western states, including Ondo, Oyo, Osun, Ogun, Ekiti, and even Edo and Kwara states each borrowed extensively from the Adoption Laws 1968 of Lagos State.
The preamble of the Law states that it is a law to provide
“for the adoption of certain juveniles and for the purposes connected therewith”.
Section 1(1) provides that the Law shall apply to
“adoption of certain juveniles under the age of 17years, who are abandoned, or whose parents and other relatives are unknown or cannot be traced after due enquiry certified by a juvenile court.
Following the passage of the Child’s Rights Act 2003, Lagos State was one of the 1st states to pass the Child’s Rights Law. The Lagos State House of Assembly passed the Child’s Rights Law which was assented to by the Governor of Lagos State on the 28th day of May, 2007; thus providing a Law to enforce the rights of the child, and to amend and consolidate all legislations relating to the protection and welfare of all children in Lagos State.
Some legal issues are thrown up in the existence of the two laws. Section 24 of the Adoption Law of Lagos State defined Juvenile Court as a Court constituted under the provisions of Section 6 of the Children and Young Persons Law. The Juvenile Court is the Court empowered under the law to make adoption orders and to which applications for adoption was to be made. Section 263 of the Child’s Right Law of Lagos State, however, repealed the Children and Young Persons Law of Lagos State. The implication of this is that the enabling law for the Juvenile Court has been taken away which automatically affects the existence of the Court. The question here is what happens to the Adoption Law which was to be administered through that Court? The law was not expressly repealed by the Child’s Right Law which means it still has the force of law till date. Further, is the fact that its adoption provisions exists side by side with the adoption provisions of the Child’s Right Law which create room for some kind of confusion. It is suggested that this anomaly be taken care of by either repealing the Adoption Law of Lagos State or merging it with the adoption provisions of the Child’s Right Law.
It is laudable that since the passage of the Child’s Rights Law of Lagos State 2007, Lagos State has consistently and progressively taken steps to actualize the objectives of the law.
In furtherance of this provision, Lagos State designated some courts at the magistrate and High Courts as Family Courts. All matters concerning and relating to children were all transferred to the Family Courts.
THE FAMILY COURT
Section 138 of the Child’s Rights Law of Lagos State
“establishes for the State a Court to be known as the Family Court for the purposes of hearing matters relating to children.”
Section 139, just like its counterpart in the Child’s Right Act,
provides that the Court will be at two levels, that is, as a Division of the High Court of a State; and as a Magistrates’ Court.
In furtherance of this provision, Lagos State designated some courts at the Magistrate and High Courts as Family courts. All matters concerning and relating to children were all transferred to the family Courts.
Section 150 of the Child’s Right Law 2007 empowers the Chief Judge of Lagos state to make Rules for the procedure that shall be applicable in the Family Court. So in the exercise of this section the Honourable Justice Inumidun Enitan Akande, the then Chief Judge of Lagos State, in May 2012 made the Rules for the procedures to be followed in family Court cited as The Family Court of Lagos State (Civil Procedure) Rules 2012, with commencement date of 6th June 2012; a development welcomed by all stakeholders in Child’s Rights matters.
It must be pointed out this move by Lagos State to give teeth to the Child’s Right Law by setting up the Courts and making the necessary rules of Court is laudable. It is suggested that all other States take the same steps to give effect to the provisions of the law in their State.
INTERNATIONAL OR INTER COUNTRY ADOPTION
International adoption (also referred to as intercountry adoption or transnational adoption) is a type of adoption in which an individual or couple becomes the legal and permanent parent(s) of a child who is a national of a different country. Generally prospective adoptive parents must meet the legal adoption requirements of their country of residence and those of the country whose nationality the child holds. The Laws of countries vary in their willingness to allow international adoptions. Some countries, such as China and South Korea, have relatively well-established rules and procedures for international adoptions, while other countries expressly forbid it. Some countries, notably many African nations, have extended residency requirements for adoptive parents that in effect rule out most international adoptions. Inter country adoption is prohibited in Nigeria.
A combined reading of the provisions of Sections 145(1) and 131(1)(b), (c) and (d) of the Child’s Right Act puts it beyond doubt that inter country adoption is not allowed under the scheme of the Act. Some view this, as a welcome development. In their view, allowing inter-country adoption in Nigeria would undermine the current efforts by the government as well as non-governmental organizations to combat the rising spate of child trafficking. Some State Laws, however, allow inter country adoptions. Lagos is an example of these states. Interestingly, while the Child’s Right Law of Lagos State contains the exact provisions in the Act which restricts inter country adoption, Section 7 of the Adoption Law of Lagos State impliedly permits foreigners to adopt children in Lagos State. It is suggested that a harmonization of these two laws is necessary.
According to a recent study 7 countries (China, Ethiopia, India, South Korea, Ukraine and Vietnam) remain as major origin countries for almost a decade. Between year 1998 and 2007, the top 10 receiving countries of all 23 reported countries, (ranked from the large to small), are the US, Spain, France, Italy, Canada, Netherlands, Sweden, Norway, Denmark, Australia. Among these 10 countries, the top 5 accounts for more than 80% of overall adoption, and the US is responsible for around 50% of all cases.
Persons who want to adopt children from overseas must meet the eligibility and suitability requirements set by their home country. The prospective adoptive country also has eligibility and suitability criteria that prospective adoptive parents must meet which vary from country to country. The main international instruments that regulate international adoption are as follows:
- The United Nations Convention on the Rights of the Child (CRC) 1989
- The African Charter on the Rights and Welfare of the Child (ACRWC)
- The 1993 Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption (“the Hague Convention”) .
The Hague Convention is the treaty most directly applicable to international adoption. However Articles 21 of the CRC and 24 of the ACRWC of the CRC are also relevant.
Article 21 of the CRC provides as follows:
States Parties that recognise 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 authorised only by 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 counselling as may be necessary;
(b) recognise 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;
(c) ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent Authorities or organs.
Article 24 of the ACRWC has similar provisions. It also enjoins State Parties to establish a machinery to monitor the well-being of the adopted child.
The four cardinal principles of the CRC and the ACRWC have a direct bearing on intercountry adoption and should be respected at all times. These are: the best interests of the child; nondiscrimination; the right to life, survival and development; and child participation.
According to UNICEF’s Study on Intercountry Adoption (1998). next to the best interests of the child, it is widely agreed that three principles should guide decisions regarding long-term substitute care for children. As a general rule of thumb, this internationally recommended policy provides that:
- family-based solutions are generally preferable to institutional placements
- Permanent solutions are generally preferable to inherently temporary ones
- national/domestic solutions are generally preferable to those involving another country.
Nigeria is a party to both conventions but still prohibits inter country adoption. It is suggested that Nigeria needs to adopt a more liberal approach in this regard so as to ensure Nigerian children can be adopted by other nationals. Nigeria would only need be stricter and vigilant in the process of adoption to curb any attempt at trafficking.
Article 24(f) of the ACRWC requires a follow-up once adoption takes place. Follow-up reports on adoptions are required by the vast majority of countries of origin worldwide. This is a means of monitoring the adopted child and his well-being. Follow up reports are usually useful during the first period of the adoption. Subsequently, it becomes the responsibility of the receiving country to protect the adopted children as it would any other child in its country.
To regulate international adoption, countries enter into cooperation or bilateral agreements. Both the CRC and the ACRWC suggest this option for States, but very few African countries have entered into bilateral and multilateral agreements of this nature. For example only thirteen African Countries are contracting states to the Hague Convention as at April 2012.
THE HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNRTY ADOPTION.
The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption aims to protect children and their families from illegal, irregular, premature or ill-prepared adoptions abroad. It does so by establishing principles requiring that a child only be adopted if it is in their best interests, and their fundamental rights are respected. The Hague Convention was adopted to fill the legal void that is present when intercountry adoption occurs by ad hoc process or in a legal vacuum
The Hague Convention states in its Preamble that the signatory parties:
“…recognise that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding… intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin”.
The principles of the Convention include:
- Ensuring the intercountry adoptions take place in the interest of the Children;
- Preventing abduction, exploitation, sale or trafficking of children.
- Facilitating communication between Central authorities in countries of origin and destination countries.
It addresses issues pertaining to adoptability, subsidiarity, consent, improper financial gains, and the role of competent authorities, central authorities and Accredited Bodies.
As of 1 April 2012, 87 countries had become contracting States to the Hague convention, only 13 of which are African countries. While there is no clear evidence or apparent common ground for reasons why African countries, including Nigeria, have been reluctant to ratify, anecdotal evidence exists that two key reasons are alleged – lack of capacity to put in place the necessary institutional frameworks, and African countries fear of being required to unnecessarily open their domestic space for intercountry adoption. The Hague Convention remains a private international law instrument that does not aim to cover all issues surrounding the adoption process, and which does not address the different steps taking place before the child enters the adoption system. For instance, if official documents declare that a child is an orphan, but in reality the child was stolen from his/her parents, the Hague convention is of no use, as it does not cover the questions of birth registration and civil registry. In addition, there are many countries (whether receiving or sending countries) that have faced the difficult experience of announcing the entry into force of the Convention while the necessary administrative services were not in place to manage the related procedure. In India and Guatemala, for example, ratification of the Hague Convention has not addressed many issues related to illicit activities.
According to the Hague Convention, a child must qualify for adoption under the laws of his or her country of origin in order to be adopted. State practice indicates that the task of determining adoptability could be given to courts, administrative structures or government authorities. Related to the determination of adoptability is also the obligation of the competent Authority “deciding on the adoptability of the child” to ensure that all efforts have been made for the child to maintain links with his/her [extended] family and community, and that adoption is used as a last resort. In practice a child is not adoptable unless the parental rights of his/her birth parents have been properly terminated, laws impose stringent safeguards against a hasty, coerced, or otherwise improperly influenced parental relinquishment of rights and responsibilities in respect of a child for adoption. in principle, since a child is not adoptable unless the parental rights of his/her birth parents have been properly terminated, Laws impose stringent safeguards against a hasty, coerced, or otherwise improperly influenced parental relinquishment of rights and responsibilities in respect of a child for adoption. Since it is not uncommon for birth parents to challenge adoptions on the grounds that they were not properly informed that the consequence of signing a consent was the termination of their parental rights, the requirement that relinquishment should be made in writing and witnessed is mainly aimed at serving as a safeguard against such scenarios.
POVERTY AS GROUNDS FOR ADOPTABILITY OF A CHILD
Domestic legislation in some countries expressly provides that poverty cannot be sufficient grounds for declaring a child adoptable. Taking poverty alone as a ground for adoptability is also considered not to be in accordance with the provisions of the CRC. For example, Nepal in 2005 was requested by the CRC committee to “abolish the provisions in the Conditions and Procedures made to provide Nepalese children to Foreign Nationals for Adoption (2000) that states that poverty of the parents of a child can be a legal ground for adoption”. There is deep concern about the fact that children living in poverty are over-represented among the children separated from their parents, both in developed and developing countries. Thus, when poverty is the main reason why parental responsibility is terminated or abandonment or relinquishment is chosen, it is suggested that families should be offered support in keeping their children.
In a 2009 petition to classify a Nigerian child as an orphan (as an immediate relative for intercountry adoption purposes), the poverty of the biological mother of the child was argued, it was argued that the biological mother was dependent on her parents and unemployed and unable to care for the child. Her status as a student who had had the child at the age of sixteen was also invoked. In rejecting the poverty argument and in effect dismissing the appeal, the Administrative Appeals office of the US Citizenship and Immigration Services reasoned that:
The U.S. consular investigation evidence reflects that the beneficiary (child to be adopted) lives in the same household as her biological mother… and the record contains no detailed or current evidence to clarify or corroborate the claim that [she] is unable to work or to provide proper care to the beneficiary in accordance with the local standards in Nigeria [emphasis added].
Accordingly, the petitioner has failed to establish that all of the requirements contained in the sole parent definition have been met, as set forth in 8 C.F.R. $ 204.3(b). The beneficiary therefore does not meet the definition of an orphan, as set forth in section 101 (b)(l)(F) of the Act.
WHO CAN ADOPT?
The CRC and the ACRWC are silent on the question of persons who are eligible to adopt children . Article 5 of the Hague Convention also lacks detailed rules concerning eligibility, it generally states that an adoption shall take place “only if the competent Authorities of the receiving State (a) have determined that the prospective adopters are eligible and suitable to adopt…”
In the receiving state, adopters’ suitability and eligibility are determined by compliance with specific requirements, which usually are very simple and objective, or by a much more extensive investigation by a social worker. Eligibility to adopt is a matter of National Law, and various countries have adopted a wide range of criteria relating to age, residency, marriage status, sexual orientation, and income. These and other criteria are in an effort to promote their children’s best interests
Very few countries in the world allow adoption by homosexual persons, and almost none of these countries can be categorised as “sending countries”. These countries include Denmark, the United Kingdom, Germany, Iceland, The Netherlands, Spain, Belgium, Norway, Sweden, Quebec and some States in the United States of America. One predominantly sending country in Africa that allows adoptions by gays is South Africa.
A number of African countries provide for a residency requirement (or probationary period) before a prospective adoptive parent is eligible to adopt. The Hague Convention in Article 2, entrenches the fact that the “convention shall apply where a child habitually resident in one contracting State (“the State of origin”) has been, is being, or is to be moved to another contracting State (“the receiving State”)”.
It is not nationality or any other ground that is the connecting factor for the application of this convention; it is the habitual residences of the child and the prospective adoptive parents. Almost all African countries – most of which do not have an adequate legal and institutional framework to regulate intercountry adoption – continue to use a residency requirement as a safeguard to promote children’s best interests.
“Matching” is the process of identifying, assessing and determining the prospective adoptive parents who would best meet the needs of the child. This is differentiated from “entrustment”, which is the “actual [physical] placing of the child in the care of the prospective adopters. Some receiving (and sending) countries might not allow certain groups of children to be adopted. HIV positive children are a good example. Authorities in sending countries should not match HIV positive children with prospective adoptive parents from a State that does not allow HIV positive children to be adopted by parents who are habitual residents of that State.
The principle of Subsidiarity means, in the words of the CRC committee, “that intercountry adoption should be considered, in the light of Article 21, namely as a measure of last resort. Article 24(b) of the ACRWC , also recommends that intercountry adoption should be used “as a last resort”. For the Permanent Bureau of the Hague Conference on Private International Law, “subsidiarity” means that:
“… States Party to the Convention recognise
that a child should be raised by his or her
birth family or extended family whenever
possible. If that is not possible or practicable,
other forms of permanent family care in the
country of origin should be considered. Only
after due consideration has been given to
national solutions should intercountry
adoption be considered, and then only if it is
in the child’s best interests”
The importance of the principle of subsidiarity
The application of the principle of subsidiarity is important for a number of reasons. First, it allows children to remain with their family of origin. It helps to re-confirm the assertion that “children’s best interests are served by being with their parents wherever possible”. Secondly, the principle also facilitates the promotion of the cultural identity of the child. Thirdly, the application of the principle also offers an opportunity to the authorities of the child’s country to respond to the needs of their children first. As the authorities with the responsibility to provide child welfare services, they are better placed to analyse and respond to the needs of children within their jurisdiction.
One of the added values of the Hague Convention is the requirement either to create or to designate a Central Authority. Each contracting State is expected to designate a Central Authority that acts as the point of contact, coordination, and responsibility within that country for the implementation of the various duties and activities called for by the Hague Convention.
Adoption remains a viable and thriving option for child care across the world. In view of its far reaching implications of totally severing all relationship with a child’s birth parent, however, one cannot but agree with the view that adoption should, as much as possible, be reserved only for children whose parents are unknown. For some other categories of children, foster parenting or guardianship would be preferable as such children would be free to maintain contact, no matter how trivial, with their natural families. Proper education of parents and guardians on the effect of adoption must be carried out before consent is obtained.
Further, this discussion has shown that one of the key issues of interest, in Adoption matters, is inter country adoption. Nigeria takes a rigid position as seen in the Child’s Right Act and its refusal to sign the Hague Convention (this is apart from some State Laws which seem to allow foreigners to adopt). This position is not strange in view of the various issues Nigeria faces in the area of Child Trafficking and other image-damaging factors. Ironically, the Hague Convention was to address these issues. To date, The Hague Convention on Protection of Children and Cooperation in Respect of Inter country Adoption, is said to represent the best international effort at ensuring an ethical inter country adoption system even though it is also criticized for being too bureaucratic. It is suggested that orphans and other categories of children should not be deprived of the opportunity of being adopted transnationally. Nigerians, as it is, do not have the adoption culture because of the extended family system practiced in various parts of the Country. Most times, members of the extended family are always willing to take up responsibility for an orphan child. This is unlike other climes where adoption is fully embraced. Shutting the door to international adoption is to foreclose the chances of Nigerian children to the benefits of adoption. This in the long run will not be in the interest of the children. It is suggested that in the alternative, the Government could tighten up measures during the adoption process to avoid cases of trafficking rather than a total ban.
Mrs Titilola Akinlawon SAN delivered this paper at a 2-day interactive seminar organized by the NBA Ikeja Branch.
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