KAMPALA INTERNATIONAL UNIVERSITY

COURSE: BACHELOR OF LAW

COURSE UNIT: FAMILY LAW TWO

YEAR: YEAR TWO SEMESTER TWO

LECTURER’S NAME: COUNSEL AMINA WAHAB

GROUP FIVE (1) MEMBERS PRESENTATION.

NO. NAME REG.NO SIGNATURE

1. BINAISA WILLIAM MWENKANYA 2022-08-11591

2. WANAKOLI POLYCARP 2022-08-11974

3. NGOBI IAN 2022-08-12266

4. NABATANZI EMILLY 2022-08-12179

5. BATEMYETTO GLORIA 2021-08-06347

6. NALUNGA SANYU 2022-08-12869

7. WANGI BENARD SSEMPIJJA 2022-08-12981

8. NEKESA JOYCE 2022-08-11358

9. BAMUGILIZA JOSHUA 2022-08-10616

10. NAMUGEMA SHAKIRAH 2022-08-12684

TOPIC: The Law relating to Adoption in Uganda

ADOPTION IN UGANDA

The term ‘’Adoption’’ refers to the creation of a parent-child relationship by law thereby establishing
a long-life relationship between the child, known as adoptive child and the parent, known as the
adoptive parent (adopter). According to the case of Re Birabwa Mutaka, Adoption Case no.14 of
2018 the definition of adoption was construed as above.
Adoption IS the legal process by which a child becomes a paramount and full member of the new
family.1 Through adoption, the child legally ceases to be a member of the biological family and
becomes a member of another family.

Adoption is also defined as the creation of a parent child relationship by judicial order between two
parties who are unrelated creating a lifelong relationship of parenthood between a child and the
adoptive parent.2 To this end, section 51 of the children act confers duties of the biological parent
onto the adoptive parents.

According to Black’s Law Dictionary, 9th Edition defines adoption as the creation of a parent-child
relationship by judicial order between two parties who are unrelated.

In other words, in close reference to Section 48(1)(a) of the Children Act, Cap. 59, adoption can be
defined as the process by which a child ceases to be a child to his or her biological parents by action
of law and becomes a member of another family, known as the adopting family.

Categories of Adoption in Uganda. (who can apply)

There are two categories of adoption created and recognized by the law and embedded in Section 45
(1) of the Children Act, Cap.59 to include by sole application and by joint application to only spouses.

(a) Sole Application.

This is where a sole or an individual applicant applies to a competent court of jurisdiction for grant of
an order for adoption. Refer to the case of Re Edith Nasazi (1997).

(b) Joint Application.

This is where an application for an order for adoption is granted to spouses jointly. It should be duly
noted that except where the application is by spouses jointly, an adoption order shall not be made
authorizing more than one person to adopt a child at the same time as provided for under Section 45
(6) of the Children Act, Cap.59.

JURISDICTION FOR APPLICATION.

According to Section 44 of the Children Act, Cap.59, an application for an adoption order may be
made;

(a) To a Chief Magistrate’s Court within the jurisdiction of which the applicant or the child
resides where both the child and the applicant are citizens of Uganda.

(b) To the High Court where the child or the applicant is not a citizen of Uganda and the court
may, subject to the Act, grant the application. The child need not be a Ugandan to be
adopted. (Section 44(2)) of Children Act, Cap.59.

Preliminary steps of adoption

An application for an adoption order can be made to the chief magistarete’s court with in the
jurisdiction of the applicants residence where both the applicant and child are Ugandans according
to section 44(1)b of the children act, where the child or applicant are foreigners. A child need not to
be a Ugandan according to section 41(2)
1
Osborn’s concise law Dictionary
2
Victoria Babirye Namutosi
 PREREQUISITES FOR ADOPTION. (Restrictions and Conditions)

As provided for under Section 45 of the Children Act, Cap.59 as follows;

 Age: The applicant or at least one of the joint applicants has attained the age of 25 years and
is at least 21 years older than the child as per section 45(1)a.

 Consent: In the case of application by one of the spouses, the other has consented to the
adoption. Note that the court may dispense with this consent by spouses if the spouse
whose consent is required cannot be found or is incapable of giving consent, or the spouses
are separated and living apart and the separation is likely to be permanent. (Section 45(2)).
Categories of consent

 Consent of the child’s parent. Provided for under section 47(1&2) The consent of the child’s
parent is necessary if the parents are known but it may be dispensed with by the court at it’s
discretion in exceptional circumstances if the parents are incapable of giving it or are dead
but the consent may be revoked at any time before the pronouncement of the adoption
order. In Re; Micheal Lumu Adoption cause No.8of 2000, It was stated by the court that the
purpose of the consent under this section is to emphasize the right of the parent over the
child. And this right should only be discarded in the interest and welfare of the child.

 Consent of the child

Provided for under section 47(5) CA, where in the view of the court, the child is able to
understand the adoption proceedings , then his or her views shall be taken into
consideration.

Section 47(6) CA on the other hand makes it mandatory to obtain the consent of the child
where the child is atleast fourteen years of age unless it’s not possible for the child to
express his or her. Article 12 of The United Nations Convetion of Rights of the Child 1989 on
the requirement of member states to ensure that a child who is capable of forming his or
her own views and such proceedings is given this chance.

Sex: An adoption order shall not be made in favor of a sole male applicant in respect of a female
child, or in favor of a sole female applicant in respect of a male child, unless the court is satisfied that
there are exceptional circumstances to justify the cause. Read the case of Re George Kagulu,
Rebecca & ors. (1998)

In the matter of re; George kagulu, Rebecca and others The appellant was the natural paternal uncle
of the infants and one them being Rebecca who was a girl. However, the court was satisfied that this
fell under special circumstances and the adoption order was granted. Court stated that on Rebecca
being a girl, the appellant was her uncle and that the law intended on stopping a male from adopting
a girl who he would later seduce or marry but Rebecca was the daughter of the applicant’s brother
and there was nothing obnoxious in granting the application. court held that in granting an order of
adoption, the paramount interests of the child would be served by looking after the child because he
was linked with them and had love and affection for them.

 Foster care: Under the case of Re Sharon Asige, it is clearly brought out that the applicant
should have fostered (undertaking the care and maintenance of a child by a person who is
not a child’s parent or relative) the child for a period of not less than 12 months. Refer also to
Section 45 of the Amendment Act of 2016.
  The probation and social welfare officer shall be required to submit a report to assist the
court in considering the application or require some other person or the local authority.
Refer to the case of Re Deborah Joyce Alitubeera.

Note that the court may, in exceptional circumstances, waive any of the requirements specified
above. The Act further provides for the kind of persons who may facilitate the courts of law with
information to protect the best interests of the child during the grant of an order to include
advocates, Probation and Social Welfare Officers, and guardian ad litem for children.

Intercountry Adoption.

This concerns itself with a person who is not a citizen of Uganda who may adopt a Ugandan child
under exceptional circumstances. This can be so if he or she;

 Has stayed in Uganda for at least one year (Section 46 of Amendment Act).

 Has fostered the child for one year (Section 45 of Amendment Act) under the supervision of
a Probation and Social Welfare Officer

 Does not have a criminal record

 Has a recommendation concerning his or her suitability to adopt a child from his or her
country’s Probation and Social Welfare Officer or other competent authority.

 Has satisfied the court that his or her country of origin will respect and recognize the
adoption order.

In addition to the above restrictions and conditions about intercountry adoption, the earlier stated
prerequisites for adoption also apply to the same. See Re Katumba Francis & Nakitende Jenny,
Adoption Case No. 16 (2018) [2019.

Consent in application to an adoption order.

In reference to Section 47 of the Children Act Cap.59;

 The consent of the parents of the child, if known, is necessary for adoption order to be
made but the consent can be revoked at any time before the pronouncement of the
adoption order.

 The court may dispense with the consent if the parents are incapable of giving it.

 While an application for an adoption order is pending in court, a parent who has given his or
her consent to the adoption is not entitled, except with the leave of the court, to remove
the child from care and custody of the applicant. The court may refuse to grant a leave to
remove the child from the care and custody of applicant if it considers it signifi9cantly
harmful to the welfare of the child.

 If in the view of the court the child is able to understand the adoption proceedings, the his
or her views shall be taken into consideration.

 If the child is at least 14 years of age, his or her consent to the adoption must be obtained
unless it is impossible for him or her to express his or her wishes.
  Where it appears to the court that any person who is not the parent of the child has any
rights in respect of the child under the order of court or under customary law, the court may
require the consent of that person before the order is made. The court may also request a
probation and social welfare officer to prepare a report to assist it to determine whether any
person who is not a parent of the child has any rights and obligations in respect of the child
and whether that person’s consent ought to be obtained before the making of the adoption
order.

PROCEDURE FOR APPLICATION OF ADOPTION ORDER (Section 49)

 Make/draft an application/petition for adoption order by complainant on oath assisted by a

In addition to the above, Rule 9 (1) states that a copy of an entry in Births Register Book showing the
age of the child should also be attached.

 Assessment and paying of court fees.

 Filling the application in court and extracting summons.

 Serve the summons to the opposite party. This is provided for under Rule 5 (1) and (2) of
the Children (adoption of children) Rules.

 Then, under Rule 7 of the Children (adoption of children) Rules, swear an affidavit of
service in court.

 Court sits or fixes a hearing/discusses and an adoption order is granted under Rule 12 and
notice is given to parties under Form F set out in the schedule of the Children (adoption of
children) Rules.

EFFECT OF AN ADOPTION ORDER. (Section 51) CA

Upon an adoption order being Made;

 All rights, duties and obligations of the parents and guardians in relation to the future
custody, maintenance and education of the child, including all rights to appoint a guardian
and consent to marriage, are extinguished. Read the case of Re Natali Matama.

 There shall vest in, and exercised by the adopter all such rights, duties and obligations in
relation to the future custody, maintenance and education of the child as would vest in him
as if the child were the natural child of the adopter born to him or her in lawful wedlock.

Devolution of property in relation to grant of an adoption order.

In consideration to Sections 52 and 53 of the Children Act, Cap.59;

Where the adopter dies intestate, his or her property shall devolve in all respects as if the
adopted child were the natural child of the adopter. High court on notice of claim that the disposition
of property devolving on an intestacy has been exercised unfairly against an adopted child, the court
may order such provision as the court thinks equitable to be made to him or her out of the property
devolving on the intestacy in accordance with the law.

Wills: in any testamentary disposition of property, made after the date of an adoption order, any
reference, to the child of the adopter shall be construed as including a reference to the adopted
child.

More so, where any disposition made by the adopter prior to the adoption order makes no
reference for the adopted child, he/she may apply to the court to vary disposition by ordering such
provision as the court thinks equitable to be made to him/her.

In addition, for the avoidance of doubt, an adopted person shall not be entitled to inherit from his
or her natural parents if they die intestate.

Disclosure of adoption. (Section 55)

Where a child has attained the age of 18 years or at an earlier age on the child’s own request or at
the discretion of the adopter, the child shall be informed by the adopter of the identity of his/her
natural parents unless it is not in the child’s best interests to do so.

The adopter parent shall inform the child that he/ she is adopted as soon as the child is of an age of
understanding.

RESCISSION OF AN ADOPTION ORDER.

In reference to Section 46A of the children Amendment act,2016, the court may in exceptional
circumstances rescind an adoption order through an application by;

I. The adopted child

II. A parent or guardian of the adopted child immediately before adoption

III. The adoptive parent of the child

IV. Any person who consented to the adoption

V. The minister in cases of inter country adoption

VI. Any other person with justifiable reasons

More so an adoption order may be rescinded only if;

a) the rescission of the order is in the best interests of the child.

b) the order was obtained through fraud or misrepresentation.

And where an adoption order is rescinded by the court;

(i) the adoption order shall cease to apply in respect of the child concerned.
 (ii) all responsibilities, rights and other natters that had been previously terminated by the
adoption order in respect of the child shall be restored.

In conclusion, adoption of children in Uganda is guided by the Children Act, Cap.59 and the Children
(Adoption of Children) Rules that sets out the procedure under different situations under which an
adoption order may be granted by court. It is within the procedure of obtaining an adoption order
that certain conditions, prerequisites must be fulfilled save for court’s discretion. It should also be
remembered that an adoption order comes with its effects and can be brought to an end at anytime
or rescinded as discussed above.