KAMPALA CAMPUS

COURSE UNIT: FAMILY LAW II

LECTURER: COUNSEL NANZIRI FATUMA
BWANIKA
YEAR: LLB -2 EVENING STREAM -B
GROUP: GROUP 1
SEMESTER: TWO
NO NAME REG. NUMBER SIGNATURE
1
2
3
4
5
6
7
8
9
10
11
12
13
14

THE LAW RELATING TO ADOPTION IN FAMILY LAW

 TABLE OF CONTENTS
OVERVIEW .......................................................................................................................................... 1
1.O INTRODUCTION ......................................................................................................................... 1
2.0 IMPORTANCES OF ADOPTION................................................................................................ 1
3.0 TYPES OF ADOPTION........................................................................................................... 2
3.1 Inter-country Adoption .............................................................................................................. 2
3.2 National Adoption ....................................................................................................................... 2
4.0 JURISDICTION IN ADOPTION MATTERS ............................................................................. 2
5.0 WHO CAN APPLY ........................................................................................................................ 3
5.1 Sole Application .......................................................................................................................... 3
5.2 Joint Application ......................................................................................................................... 3
6.0 WHO CAN BE ADOPTED ............................................................................................................ 3
7.0 REQUIREMENTS/CONDITIONS TO FULFILL BEFORE AN ADOPTION ORDER IS
GRANTED............................................................................................................................................. 3
7.1 Age of the Applicant(s) ............................................................................................................... 3
7.2 Consent......................................................................................................................................... 3
7.3 Spousal Consent .......................................................................................................................... 4
7.4 Consent of the Child ................................................................................................................... 4
7.5 Sex of the Applicant .................................................................................................................... 4
7.6 Sole / Joint Applicant .................................................................................................................. 4
7.7 Foster Care Period ...................................................................................................................... 5
7.8 Probation Report ........................................................................................................................ 5
8.0 INTER-COUNTRY ADOPTION .................................................................................................. 5
9.0 REASONS FOR COURT INTERVENTION IN ADOPTION ORDERS ................................. 6
10.0 PROCEDURE FOR APPLYING FOR ADOPTION ............................................................ 7
10.1 Filing the petition ...................................................................................................................... 7
10.2 Ex-parte Application ................................................................................................................ 7
10.3 Service of Persons ..................................................................................................................... 7
10.4 Submission of supporting documents ...................................................................................... 7
10.5 Probation and Social Welfare Officer’s Report ..................................................................... 7
10.6 Fixing of Hearing ...................................................................................................................... 7
10.7 Court’s Determination.............................................................................................................. 8
11.0 REVOCATION OF AN ADOPTION ORDER .......................................................................... 8
12.0 LEGAL EFFECT OF REVOKING OR RESCINDING AN ADOPTION ORDER .............. 8
13.0 DEVOLUTION OF PROPERTY IN RELATION TO GRANT OF AN ADOPTION
ORDER .................................................................................................................................................. 8
14.0 DISCLOSURE OF ADOPTION.................................................................................................. 9
15.0 CHALLENGES POSED BY ADOPTION ................................................................................. 9
16.0 CONCLUSION ............................................................................................................................. 9
17.0 REFERENCES ............................................................................................................................ 10

1|Page
OVERVIEW
This piece of work shall cover the introduction of adoption, the preliminary steps to adoption,
the jurisdiction for application, categories of adoption in Uganda. (who can apply), the
prerequisites for adoption, the procedure for application of adoption order, the effect of
adoption order, the devolution of property in relation to grant of an adoption order, the
rescission of an adoption order and the conclusion.

1.O INTRODUCTION
According to the Black's Law Dictionary,1 Adoption is the act of one who takes another's
child into his own family, treating him as his own, and giving him all the rights and duties of
his own child.
Adoption is the process by which parental rights and responsibilities of a child's biological
parents are transferred by way of a court order to the adoptive parent or parents of a child.
Similarly, In the Matter of the Adoption of Victoria Babirye Namutosi by Johnny & Cheryln
Walters2, the court defined Adoption as the creation of a parent-child relationship by judicial
order between a child and the adoptive parent.
In Ayat Joy v Jenevieve Chenekan Obonyo and another,3 it was stated by the Court that
adoption creates a lifelong relationship of parenthood between a child and adopter.
Under Article 34(1)4, stresses that children have a right to be cared for by parents and those
entitled by law to bring them up meaning that the constitution which is the supreme law allows
adoption since the adoptive parent becomes the person entitled by law to take care of the child.
Article 31(5)5 is to the effect that children may not be separated from their families or the
person entitled by law to bring them up except in accordance with the law meaning that
adoption may take place as an exceptional case through the law and the child or children may
be separated from their parents or any other person entitled by law.
Section 4 of the children Amendment Act of 2016 is to the effect that every child has a right
to stay with his or her parent or guardian. However, the same Act allows for the substitute care
when the law requires such substitute care which would include adoption.

2.0 IMPORTANCES OF ADOPTION

It guarantees citizenship, this is provided for under Article 11(2).6
Fulfillment of parenthood. Adoption allows individuals or couples who may not be able to
have biological children to experience the joy of raising a child. According to Section 94(1)7
provides that, upon the issuance of an adoption order, all rights, duties, obligations, and
liabilities of the biological parents and guardians of the child are extinguished and transferred

1
9th Edition.
2
High Court Adoption Cause No. 09 of 2017.
3
HC Adoption Cause No. 52 of 2002.
4
The 1995 Constitution of the Republic of Uganda.
5
Ibid.
6
Ibid.
7
Children Act Cap 62.

1|Page
to the new adoptive parents. Legally, this means that the adoptive parent is treated as though
they were the biological parent of the adopted child.
This is where the difference between Guardianship and Adoption is drawn. Guardianship does
not extinguish the rights and responsibilities of the biological parents, but Adoption does.
In the Matter of Natalie Matama (Infant)8, it was stated that Adoption places the adoptive
parent in the 'shoes' of the child's parent
It offers Children’s rights to the adopted child, section 94(2)9 subjects the adopter the
obligation to grant the adopted child the rights of a child as to those of a natural child as
provided under section 4 of the Children’s Act cap 62.
It also provides a sense of belonging. It gives the adoptee the chance to be part of a loving
family and community especially if their biological family couldn’t provide a stable
environment.
Identity formation. While adoptees may experience questions about their heritage, adoption
gives them a chance to create a strong sense of identity within their new family context.

3.0 TYPES OF ADOPTION

3.1 Inter-country Adoption
This is a form of adoption where the applicant seeking to adopt a child or the child are non-
citizens.
3.2 National Adoption
This is a form of adoption where both the prospective adoptive parent (s) and child to be
adopted are Ugandan citizens.

4.0 JURISDICTION IN ADOPTION MATTERS

Jurisdiction refers to the powers of a court to hear a matter before it. Jurisdiction in adoption
matters is provided for by Sections 86 of the Children Act.10 Adoption matters are instituted
by way of a petition.
According to section 86(1)(a) of the Children Act and rule 3(1) of the Children (Adoption
of Children) Rules, where both the child and petitioner(s) are citizens of Uganda, the
petitioner(s) may make a petition for Adoption in the Chief Magistrates Court. The petition
takes the format of FORM A in the schedule to the Children (Adoption of Children) Rules.
This was illustrated in the matter of Natalie Matama, where both the applicant and the child
were citizens of Uganda, and the application was heard in the Chief Magistrate's court.
According to section 86(1)(b) of the Children Act and rule 3(2) of the Children (Adoption
of Children) Rules, where the petitioner or the child to be adopted is not a citizen of Uganda,
then the application for Adoption is made to the High Court. The petition takes the format of
FORM B in the schedule to the Children (Adoption of Children) Rules. This was the case
in Re Benjamin Pietsch.

8
Adoption Cause No. 289 of 2013.
9
Children’s Act Cap 62.
10
Cap 62.

2|Page
Note: Although jurisdiction conditions for applicants filing adoption applications may vary
depending on whether they are or aren't citizens of Uganda, section 86(2) of the Children Act
provides that a child need not be Ugandan to be adopted. The bare minimum is that the child
resides in Uganda.

5.0 WHO CAN APPLY

There are two categories of people created and recognized by the law and embedded in Section
87 (1) of the Children Act,11 to include by sole application and by joint application to only
spouses.
5.1 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).
5.2 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 87 (6) of the Children Act,12

6.0 WHO CAN BE ADOPTED

Any child as defined under section 2 of the Children’s Act13 cap 62 can be adopted, the issue
of nationality of the child does not matter; be it a Uganda or a non-Uganda as provide under
Section 86 (2) of the Children’s Act.

7.0 REQUIREMENTS/CONDITIONS TO FULFILL BEFORE AN ADOPTION

ORDER IS GRANTED
Both citizens and non-citizens can make an application for Adoption in Uganda.
Section 87 of the Children Act14 provides for conditions to be fulfilled (by both citizen and
noncitizen applicants) before an adoption application can be granted;
7.1 Age of the Applicant(s)
Where it is a sole applicant, he or she must be an adult who has attained 25 years and at least
21 years older than the child to be adopted. Where they are joint applicants, one of the
applicants must fulfill the earlier stated requirements. Section 87(1) (a) Children’s Act.
7.2 Consent
Consent of the Parents of the Child.
According to section 90 of the Children Act,15 where the parents of the child are known, their
consent must be sought before an adoption order is made. In the Matter of Adoption of
Victoria Babirye Namutosi, the biological father had to consent before the adoptive parents
proceeded with the petition.

11
Cap 62.
12
Ibid.
13
Ibid.
14
Ibid.
15
Cap 62

3|Page
This consent must be genuine and free. It must not be induced by way of compensation or
fraudulent means. This was illustrated In the Matter of Peter Ssebuliba,16 where the applicant
did not obtain the mother's consent before the petition. As a result, she applied for a writ of
habeas corpus to prevent the adoption proceedings. Accordingly, adoption can be set aside
where the consent is not genuine or obtained freely. Per Rule 8(1) Children (Adoption of
Children) Rules the consent must be expressed in FORM C of the schedule to the rules.
However, where the consent of the parents cannot be reasonably sought in given circumstances
i.e. if the parents are not of sound mind, drunkard or deceased, section 90(2) of the Children
Act provides that court may dispense with consent of parents if they are incapable of giving it.
7.3 Spousal Consent
Where the petition for adoption is made by one of the spouses, the other spouse must consent
to the prospective adoption. Per section 87(1) of the Children’s Act and Rule 8(1) Children
(Adoption of Children) Rules the consent of the spouse must be expressed in FORM C of
the schedule to the rules.
According to section 87(2) Children Act, consent can be waived when the applicant cannot
obtain the other spouse's consent. This can be because the other spouse cannot be found or they
are incapable of giving consent. Additionally, when the spouses are the spouses are separated,
living apart and the separation is likely to be permanent, consent can be foregone. See Re
Sharon Asige.
7.4 Consent of the Child
Section 90(5) of the Children Act provides that where the child is able to understand the
adoption proceedings, court must consider the child’s wishes in arriving at a conclusion.
Section 90(6) of the Children Act provides that if the child is at least fourteen 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.
7.5 Sex of the Applicant
A sole male applicant cannot adopt a female child, nor can a sole female applicant adopt a male
child. (section 87(3) Children Act). Exceptions come in under special circumstances where
after assessment by the court, the rule can be waived.
This was illustrated in the matter of Mirembe Nansamba Claire. In this case, despite the fact
that the child's uncle was only 16 years older and a sole male applicant applying to adopt a
female child, the court granted the adoption order considering that he was already providing
necessaries for the child and he was the maternal uncle. Court relied on the best interest of the
child and existence of exceptional circumstances. Wife of the applicant also consented to the
adoption. The uncle prior to the adoption had been caring for the child and providing all
necessaries. The parents understood the implication of the adoption order and granted their
consent.
7.6 Sole / Joint Applicant
Per section 87(6) Children Act, a child can only be adopted by one person at a time, unless
the people adopting are applying together as spouses.

16
Miscellaneous Cause No. 37 of 2009

4|Page
7.7 Foster Care Period
According to section 87(4), the petitioners must have fostered the child for a period not less
than 12 months under the supervision of a Probation and Social Welfare Officer.
In Re Derrick Mugoya, Okola Wily, Edward Kabuyo (children) Adoption Cause No. 69
of 2007, the learned judge noted that Section 87(4)(5) is only discretionary and not mandatory
and the period can be waived if it is in the best interests of the child. However, case law has
gone ahead to show that the fostering can only be done away where special circumstances exist
that necessitate the best interests being taken into consideration.
7.8 Probation Report
According to Section 87(5), Probation and Social Welfare Officers must make a report to guide
the court in decision-making concerning adoption. The same report can also be made by any
other authority from the local government to guide on the same.

8.0 INTER-COUNTRY ADOPTION

Section 88(3) of the Children Act provides that in addition to the conditions laid out in Section
87 Children’s Act (as discussed above), non-citizens must satisfy the additional requirements
laid out in Sect 88 Children’s Act and discussed below;
These conditions were also discussed in the case of Sidney Harper & Wendy Harper and
Musinguzi.17 The conditions set out are not mandatory but act as a guiding tool. The court can
waive the requirements it deems fit that it is in the child's best interests.
a) The applicant(s) must be non-citizens.
b) They must have stayed in Uganda for at least one year.
The applicant must have stayed in Uganda for at least 12 months/1 year. For example, in Sidney
Harper & Wendy Harper and Musinguzi,18 the applicants had lived in Uganda for four
years. This was above the bare minimum required by the CA of one year.
c) They must have fostered the child for at least one year under the supervision of a
probation and social welfare officer.
However, in the case of Sidney Harper & Wendy Harper and Musinguzi19 Adoption Cause
No. 0001 of 2018, granted an adoption order to the petitioners although they had lived in
Uganda for four years but only fostered the child for nine months. The court relied on Section
88(1) CA to waive the requirements since the applicants had shown exceptional circumstances
that they were leaving with the child abroad shortly and couldn’t foster the child for longer, in
Uganda.
d) Applicant(s) must not have a criminal record.
They must not have any criminal records in their name. This can be proved by a certificate of
good conduct, records from the international police.
e) Recommendation from Probation and Social Welfare Officer.

17
Adoption Casue No. 0001 Of 2018.
18
Adoption Casue No. 0001 Of 2018.
19
Ibid.

5|Page
The applicant must possess a recommendation about his suitability from the PSWO of their
respective country.
f) Compatibility of laws in an applicant's origin country with Ugandan Adoption
laws.
The applicants' origin country must be able to respect the conditions set out in the adoption
order issued by Ugandan courts. In Sidney Harper & Wendy Harper, and Musinguzi,20 the
applicants presented sworn evidence of reports showing how their origin country was willing
to abide by the adoption order issued to the applicants from Uganda.
Note: According to section 88(6) of the Children Act, inter-country Adoption is not an option
of first choice. It only comes into play after other child care options like Family, Kinship, Foster
care, and institutional care have been exhausted.
g) Report of the Alternative Care Panel
By virtue of High Court Administrative Circular No. 2 of 2020, it is now mandatory for the
court to consider the report of the Alternative Care Panel (Ministry of Gender, Labour and
Social Development) on the suitability of the petitioner(s) to adopt a given child before an
adoption order is granted.
Note: The restrictions and conditions in section 87,21 other than section (4) and (5) apply to an
application to which section 8822 relates.
Intercountry adoption shall be considered as the last option available to orphaned, abandoned
or legally relinquished children, along a continuum of comprehensive child welfare such as
family preservation, kinship care, foster care and institutionalization.

9.0 REASONS FOR COURT INTERVENTION IN ADOPTION ORDERS

The Children’s Act further sets out the conditions the court must satisfy itself with before
granting an adoption order under Section 91, that is to say;
Ensure that the required consent is obtained
That the adoption order is meant for the child's welfare, regard must also be drawn from the
child's wishes based on their age and understanding.
That the applicant has not engaged in unscrupulous behavior to get compensation for their
application for Adoption
Nor has any person parent, guardian, or person in charge of the child's care received
compensation in consideration for the Adoption of the child.
Finally,
Finally, the court must consider the Welfare Principle/Best Interests Principle in Section 3 of
the Children’s Act as a guiding principle in all children's matters.

20
Ibid
21
Children’s Act, Cap 62
22
Ibid

6|Page
This was reiterated In the Matter of Hodkins Andrews (An Infant),23 where courted noted
that in all matters concerning children, the child's best interest should be the primary
consideration. This is further cemented by Art. 34 of the constitution.

10.0 PROCEDURE FOR APPLYING FOR ADOPTION

10.1 Filing the petition
Rule 3(2) of the Children (Adoption of Children) Rules specifies that when either the
petitioner or the child is a non-Ugandan citizen, the application must be made to the High Court
using Form B in the Schedule.
Rule 3(1) Children (Adoption of Children) Rules provides that when both the petitioner and
the child are Ugandan citizens, the application must be filed by petition in the Chief
Magistrate’s Court using FORM A in the schedule to the rules.
10.2 Ex-parte Application
Rule 3(3) requires that the petition be presented ex parte, meaning it is initially heard by the
court in chambers without opposition parties being present. The petitioner can appear in person
or through an advocate.
Rule 3(4) requires that the probation and social welfare officer supervising the child’s fostering
must be present at the ex parte hearing and attend any subsequent court proceedings as directed,
to offer advice to the court.
10.3 Service of persons
Rule 5(1) mandates that the petition be served on: The child’s parents or guardians (if any).
Any person with actual custody or financial responsibility for the child. The child, if they are
14 years or older.
Rule 5(2) allows the Judge to waive service where it is deemed unnecessary.
10.4 Submission of supporting documents
Rule 7 requires that the petition’s statements be verified by an affidavit.
Per Rule 8(1), consents as required by the Children Act (See Sect 90(1) CA) on consent of a
parent), must be submitted in Form C or Form D, depending on whether it is from a parent
or a child over 14 years.
Proof of the child’s age is required, per Rule 9(1), and may be demonstrated through documents
like a birth certificate or a medical report. (Rule 9(4)).
10.5 Probation and Social Welfare Officer’s Report
Rule 10(1) obligates the court to request a report from the Probation and Social Welfare Officer
to determine whether the adoption order will be in the best interests of the child. Rule 10(2)
outlines the specific details this report must include, such as the child’s health, education, and
overall welfare.
10.6 Fixing of Hearing
Rule 12 provides that once all documents are filed and served, the court will fix a date for the
hearing. The hearing is conducted in camera, as required by Rule 13, to ensure confidentiality.

23
Family Cause No. 222 of 2013.

7|Page
10.7 Court’s Determination
The court evaluates the petition, consents, reports, and all supporting documents. Based on the
best interests of the child, the court may issue an adoption order as prescribed by Rule 3(3).
Documents Petition – FORM B or FORM A Rule 3 of the Children (Adoption of Children)
Rules Affidavit verifying the petition.

11.0 REVOCATION OF AN ADOPTION ORDER

An adoption order is not absolute. It can be rescinded by the court in exceptional circumstances
as captured under Section 8924
The court may, in exceptional circumstances, rescind an adoption order on application by—
a) the adopted child;
b) a parent of the adopted child or other person who was a guardian in respect of the child
immediately before the Adoption;
c) the adoptive parent of the child;
d) any person who consented to the Adoption;
e) the Minister in the case of inter-country Adoption; or
f) any other person with justifiable reason.
Although this is the case, an adoption order can only be rescinded if;
a) rescission of the order is in the best interest of the child; or
b) the order was obtained through fraud or misrepresentation

12.0 LEGAL EFFECT OF REVOKING OR RESCINDING AN ADOPTION

ORDER
After granting an adoption order, all rights, duties, liabilities, and responsibilities a biological
parent possesses on a child are extinguished and vested in the adoptive parent. Section 94
Children’s Act.
Similarly, where the Adoption order is rescinded, the formerly extinguished and transferred
rights, liabilities, duties, and responsibilities vested in the adoptive parent are then restored—
section 89 (3).

13.0 DEVOLUTION OF PROPERTY IN RELATION TO GRANT OF AN

ADOPTION ORDER
In consideration to Sections 95 and 96 of the Children Act, Cap.62; 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.

24
The Children Act cap 62.

8|Page
Wills25
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.

14.0 DISCLOSURE OF ADOPTION

Under section 98,26 disclosure is provided.
Where a child has attained the age of eighteen 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 or 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 or she is adopted as soon as the child is of an
age of understanding.

15.0 CHALLENGES POSED BY ADOPTION

Whereas adoption is legal, it comes with some challenges which include;
The adopted child may want to reunite with the biological parent.
Conflicts may arise between the biological parent and adoptive parent.
Adoption effects on the child’s mental and emotional health can be negative for instance
struggles with low self-esteem, identity issues or feeling unsure of where they ‘fit in’.
The cost is high for adoptive parents.
Long process of the adoption.
Unknown possible medical history which may strain the adoptive parents.

16.0 CONCLUSION
Generally, the court sets out the conditions mentioned earlier one must fulfill before a petition
for Adoption. Although the conditions are set out, there are certain exceptional circumstances
where the court has readily waived the requirements. Where it is in the child's best interests to
do so, the court will waive the conditions.

25
Section 96 of the Children’s Act Cap 62.
26
Children’s Act cap 62.

9|Page
17.0 REFERENCES
Further reading
 Bromley's Family Law
 International Encyclopaedia of Laws: Family and Succession Law
The Law Applicable in Adoption Matters.
 The 1995 Constitution of the Republic of Uganda as amended.
 The Children’s Act cap 62
 The Children Amendment Act of 2016
 The Children (Adoption of Children) Rules
 The Case Laws

10 | P a g e