Nigeria Adoption And The Legal Framework


Being a paper delivered by Mrs. B. O. Osunsanmi at the. Conference Organised by the joint of Catholic Charities of Baltimore and Morgan Hill Children Foundation on ‘’Opening the Lines of Communication in Inter-Country Adoption at Protea Hotel G. R. A., Ikeja on the 13th of July, 2016.


 

NIGERIA ADOPTION AND THE LEGAL FRAMEWORK

1 INTRODUCTION: –

Adoption simply put is making a Child your own; It is about a person that becomes the legal parent of a Child. In adoption, the Adopter does not only have the care of the Child but becomes, for all legal intents and purposes, the Child’s parent. Adoption in essence is about recognizing the need of a child that requires a Family and thereby legally given a family to that Child that is in need or deprived of a family, there is no gain saying the fact that some Children by the circumstances of their birth are deprived of their family company.

A legal frame work would be defined as a legal doctrine, set of rules, procedural steps or texts often established through precedent in the common law through which judgment can be determined in a given case.

In the light of this, the United Nations on the Right of the Child recognizes that the family is the fundamental group of Society and the natural environment for the growth and well-being of all its members and particularly Children should be afforded the necessary protection and assistant, so that it can fully assume responsibilities within the Community.

The United Nations had made some rules and procedures in respect of the right of a Child and Adoption. This paper critically examines the relevant international instrument vis a vis the available legal frame work in Nigeria. It also focuses generally on the grey areas of the adoption laws.

It looks into the newly revised Child Right Law of Lagos State, the general roles of the Court and proffers solutions to some of the identified problems.

2 UNCRC GENERAL PROVISION ON ADOPTIONS:-

To this end Article XX of the Rights of the Child states:

  1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
  2. States Parties shall in accordance with their National laws ensure alternative care for such a child.
  3. Such care should include, inter alia, foster placement, Kafala of Islamic law, adoption, or if necessary, placement in suitable institutions for the care of Children. When considering Solutions, due regard shall be paid to the desirably of continuity in a child’s upbringing and to the Child’s ethnic, religious, cultural and linguistic background.

Article XXI: – States Parties which 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: –

  1. 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 guardian 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.
  2. Recognise that intercountry 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.
  3. Ensure that the child concerned by intercountry adoption enjoys safe guards and standards equivalent to those existing in the case of national adoption.
  4. <<<Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it.
  5. Promote, where appropriate, the objectives of this 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.

DOMESTICATION OF UNCRC: –

Since Nigeria has ratified the convention, it is expected that the principles, enshrined in the International instrument will be domesticated. Nigeria actually domesticated the general principles by enacting the Child Right Act 2003 and Lagos State in 2007. The law makes copious provision for Adoption in providing alternative for children in need of care on the Family.

I shall therefore in the course of this Paper be making a comparative analysis of Federal Court and State Government on domestication of the International Instrument. Some of the provision relating to Adoption in the Child Right Act appears to be similar to the old 2007 Child Rights Law, Lagos State.

Both Laws stated in Section I respectively of the Child Right Act. ‘’In every action concerning the Child, whether undertaking by an individual, Public or Private body, Institutions or Services, Court of law or administrative or Legislative Authority the best interest of the Child shall be primary consideration.

Section I of the Children Law of Lagos State as from the commencement of this Law, every action concerning a Child undertaken by any individual Public or Private Body, Institution, Court of Law Administrative of Legislative Authority, the best interest of the Child must be the primary consideration.

That means every application relating to any issue that a Child may be faced with the paramount factor that should be considered is in the best interest of the Child. So, in handling any Case of Adoption, the Courts are to consider the best interest of the Child which should be made Subject to the Child concerned especially in the given of a legal parent to the Child.

Generally, and in many jurisdiction certain restrictions are made in respect of Adoption. Section 129 CPA for instance states the qualification of who may adopt as the philosophy of the law in respect of Juvenile as evolved over the year from Welfare model to the best interest model, so that any restriction on the adoption of any Child is expected to be tailored along the best interest of the Child. Based on best International Practices that have evolved are such that are contained in Section 129 of the Child Rights CPA.

PERSONS WHO MAY ADOPT: –

The following persons may apply for an adoption Order.

  1. A married couple where: –
    1. Each of them has attained the age of twenty-five years.
    2. There is an order authorizing them jointly to adopt a Child; or
  2. A married person, if he has obtained consent of his spouse, as required under Section 132 of this Act; or
  3. A single person, if he has attained the of thirty-five years, provided that the Child to be adopted is of the same sex as the person adopting; or
  4. In all cases specified in paragraphs (1), (b) and (c) of this Section, the adopter or adopters shall be persons found to be suitable to adopt the child in question by the appropriate investigating officers.

However, the grey areas are the requirements/restrictions found in Section 123 of the (old) Child Right Law, Section 144, 145 and Section 131 of the Child Right Act.

Section 131 states: –

Restriction on the making of adoption Orders: –

  1. Restriction on the making of adoption Orders.
    1. The applicant or, in the case of a joint application, one of them, is not less than twenty-five years old and is, at least, twenty-one years older than the Child.
    2. The applicant, or in the case of a joint application, both or, at  least, one of them and the Child are resident in the same State.
    3. The applicant has been resident or, in the case of a joint application, both of them have been resident in the State which the application is made for a period of, at least, five years;
    4. The applicant is a citizen or, in the case of a joint application, both applicants are citizen of Nigeria;
    5. The Child has been in the care of the applicant for a period of at least three consecutive months immediately preceding the date on which the order is made; and
    6. The applicant has, at least twelve months before the making of the order informed the Social Welfare Officer of his intention to adopt the Child.

The restrictions that have been the Subject of criticism are these: –

  1. Residency.
  2. Citizenship
  3. Three months bonding period.
  4. One-year prior Application before Adoption orders.

The restriction on residency and citizenship of a prospective adopter has been strongly criticised in some Stakeholders as unnecessarily restrictive and working against inter-country Adoptions and ultimately against the interest of the Child the interest of the Child. This brings to question what exactly is the best interest of the Child that has been deprived of the parenting benefits i. e. fatherly and motherly love?

By what standard is the interest of such Child determined? Was the Child allowed to participate in the Adoption proceedings that will for life change his/her Status?

Is the voice of the child heard in all the proceedings in respect of his/her Adoption in order to determine his/her interest? (We have heard from some of our Lords Spiritual that Children have Guardian Angels). As Individual, Public or Private Body, do we receive any information from the Guardian Angel of any Child in need of care’ before allowing or restricting any prospective Adopter?

What are the parameters or guiding principles that a Court uses in ‘judging’ applications on Adoptions?

If we are not sure of the right answers to these numerous questions, then, it is time we look critically into the grund norm and every available legal framework to get answers that would best suit the best interest of Child in need of a parent.

Although, there is no Standard definition of ‘best interest of the Child’, the United Nation Children Bureau10 stated that the best interest of a child refers to the deliberation that Courts undertake when deciding what type of Services, actions and orders will best serve a Child as well as who is best suited to take care of a Child. The following guidelines are identified in considering the best interest of a Child: –

  1. The emotional ties and relationships between the Child and his/her Parents siblings, family and house members
  2. The capacity of the Parents to provide on safe home and adequate food, clothing and medical care.
  3. The mental and physical health of Parents
  4. Child wishes.
  5. Legal framework; Constitution and Child Protection Laws.

The Courts will apply factual situation in respect of the first to fourth guidelines while the fifth guidelines would be based on the only available legal framework. The Courts apply the law to the fact before the Court.

Section 42 (2) Constitution: –

No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

Article II of UNCRC: –

  1. The States Parties to the present Convention shall respect and ensure the rights set forth in this Convention for each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parents of legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
  2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

In the light of the Constitution and UNCRC Section 131 CPA does not really appreciate the right of the Child as relating to the alternative benefits of the adoptive parents especially in the area of inter-country adoptions and especially where a Child is deprived discriminated against, abandoned and deserted even by his/her biological parents and loved ones. A person that is drowning does not really care who rescues him/her whether a citizen or noncitizen, whether from the black race or from the white race. Therefore, restriction on citizenship may not be in the best interest of a child in dire need of a parent, as every Childs has a right to private home and family life

THE ROLE OF THE COURT

To the extent that Section 131 is contradictory to Section 1 and 3 of the same law and also in conflict with Article II and XXI of UNCRC, it could be the interpreted and resolved in favour and in the best interest of the Child. This is where the Courts have an important role to play in the interpreting of what the law is and what is in the best interest of the Child.

The ultimate orbiter of what is the best interest of the Child is the Court. This is not a judicial expire building. It is the division of responsibility that Parliament has laid down. It must be respected. Section 144 in this regard is a usurpation of the power of the Court. It is also contradictory to Section 126 (1) which requires every application to be made to the Court and as such the combined effect of Section 144 and 145 made nonsense of the best interest of the Child as Interstate adoptions is left to only what the Minister ‘thinks fit’

Sections 144 and 145 should be totally expunged from the Law.

THE BONDING PERIOD

Though, it has been argued in some quarters that the 3 months bonding period is a too long and extensive and works hardship as for as inter country adoption is concerned but the extreme benefit of bonding period between the Adopters and Adoptees cannot be over emphasised. Experience has shown that it is only during this bonding period that the Child is able to participate in adoption processes and proceedings through his/her reaction or body language to the prospective Adopters and since the parties during the period are being monitored by the Social Worker as provided by the law through the Ministry of Youth and Social Welfare Services, the Social workers, who are expected to give report to the Court, give first-hand information on the wishes of the Child and it is ascertained by the Court.

THE CHILD’S RIGHT LAW OF LAGOS SATE AS REVISED

It is cheering news that the Yearnings and aspirations of Stake holders in the Administration of Juvenile Justice is now being met as most of the grey area of the Child Right Law 2007 and especially Section 123 has been greatly amended and modified as follows: –

The Court must, before making an adoption order, satisfy itself that –

  1. Every consent required under Section 122 of this Law which has not been dispensed with has been obtained.
  2. Every person who has given his consent understand the nature and effect of the adoption order for which the application is granted and for this purpose, the relevant adoptions service must provide adequate counselling for the parties involved in the adoption.
  3. The order, if granted, must be for the welfare of and in the best interest of the Child, with due consideration being given to the wishes of the Child having regard to the Child’s age and understanding, and
  4. The applicant has not received or agreed to received, and no person has agreed to grant or to give to the applicant any payment or other reward in consideration of the adoption than what the Court will approved.

It is noteworthy that the requirement of non-Citizenship and the issue of Residency has been re-addressed. It actually welcomes intercountry Adoptions and even the 3 months bonding period has been left to the Court.
However, the requirement for application, one year21 prior to Court order is still required. Section 119 restricted only those who may adopt as: –

  1. A married Couple, each of them not below the age of 25 years.
  2. A married person if he/she obtains the consent of his/her spouse.
  3. A single person not below the age of 35 years.

SUGGESTIONS AND RECOMMENDATIONS

  1. Full implementation of the Child Right Law of Lagos State (as amended) by the Public bodies and Court of law.
  2. The example of the Lagos State Government in constantly reviewing of her Laws should be emulated by the Federal Government and every other States in bringing adoption Laws in line with best International Practices.
  3. Section 131,144 and 145 of the Child Right Act should be amended, as it erodes the power of the Court.
  4. Every State in Nigeria should expose every Child in need of care and parenting to the benefits of International Adoptions by providing proper legal framework in line with UNCRC.
  5. The Adoption Services provided within the States and Federal Capital Territory should be made effective, there must be regular training of all Staffs and Stakeholders in Child Justice system.

In conclusion, a Child in need of care and parenting whose Fundamental Right has been breached in having a family life may throughout his/her Childhood years ended up being institutionalized, where Local parents are not available. Stakeholder in the administration of Juvenile Justice should bear in mind that such Children do not have the capacity to fight against any unrighteous decrees.