In re Peter Ssebuliba alias Namansa James (an infant)

[2010] UGHC 124; Miscellaneous Cause No. 37 of 2009
Download Judgment: English
Country: Uganda
Region: Africa
Year: 2010
Court: High Court at Jinja
Health Topics: Child and adolescent health
Human Rights: Right to family life
Tags: Children, Minor

The applicant, who is the biological mother of infant Peter Ssebuliba, filed a writ of habeas corpus claiming that the infant was being held unlawfully by the respondent pursuant to an invalid adoption order authorized by members of the father’s family without the applicant’s consent.

The accounting of the facts varies between the applicant and the respondent. According to the applicant, the infant’s father and his sister approached her in her home when the infant was young and requested to take the child for a period of two weeks so that he might get to know the father’s family. Shortly after, the father was taken seriously ill from HIV/AIDS and the sister asked the applicant to attend to him at a clinic. The applicant complied and during this period, the sister would bring the infant to visit the applicant and his father. Three weeks later, however, the father died. The sister retained possession of the child on the grounds that he would stay and mourn with members of the father’s family. The applicant claims that the sister then started avoiding her and failed to produce the infant for visits. The applicant later discovered that the infant had been adopted by the respondent. The applicant alleges that the adoption order was invalid as the parties did not obtain the written consent of the only surviving parent of the child as required under § 47 of the Children Act.

According to the respondent and the sister, the applicant had abandoned the child because of concerns that he had the same disease as his father. The sister claims that she took the child in to live with her and two of the father’s other children that she cared for. She did not work and was supported by the respondent during this period. She claims that the applicant did not attempt to meet or communicate with her regarding the child. The respondent claims that the adoption order was valid as the court has discretion to permit adoption without the consent of a biological parent where the parent is incapable of giving consent. The respondent alleges that the applicant was incapable of giving consent as she had already expressed an unwillingness to care for the child and had demanded money from the respondent at one point once she realized the respondent had the child.

After learning of the adoption of the child by the respondent, there was a delay in bringing legal action. The Court reasoned that the applicant and her counsel were uncertain as to the appropriate legal remedy in this situation. The child was now six years old and evidence showed that he had been well cared for by the respondent. The applicant brought this writ of habeas corpus and requested that the adoption order be declared invalid.

The Court held that the adoption order was invalid, ordered that the child be gradually returned to the applicant’s care, and required that the respondent and the child’s aunt work with the applicant to reintegrate the child to the applicant’s home. The Court reasoned that § 47 of the Children Act requires that the consent of a child’s parents, if known, is required for an adoption order to be made. Here, there was no evidence that the parties obtained the applicant’s consent. There were not exceptional circumstances that made it permissible to grant the order without the consent of the mother. The Court did not accept that the rights of the father’s family superseded the mother’s with regards to the child’s future, as the Constitutional Court found that aspect of the Succession Act unconstitutional.

The Court noted certain other irregularities with the adoption order. First, the Children Act § 48 provides that the person to adopt cannot have agreed to pay anything to the parent, guardian, or person responsible to the child in return for granting the adoption. The Court found that the respondent’s support of the child’s aunt and two other children could be considered payment in exchange for the adoption. Second, the Children Act § 45 provides that an application for adoption shall not be considered until the applicant has fostered the child for at least thirty-six months, which there was no evidence of.

The Court admitted that the child’s welfare is paramount in making decisions regarding the Children Act. While the Court found that the child was well cared for by the respondent and may in fact have received more opportunities in her care, the public policy interest of accountability in the adoption process could not be ignored. The Court held that the grave danger posed to children by illegal adoptions required that the adoption order be overturned.

“Mothers were completely ignored by the drafters of the provisions above [in the Succession Act] meaning that they had no right to become statutory guardians of their infant children except with leave of court under the provisions of s.44 (2) of the Succession Act. However, the Constitutional Court declared the two provisions (among others) unconstitutional in the case Law and Advocacy for Women in Uganda v. Attorney General, Constitutional Petitions Nos. 13/05 and 05/06. The mother of the infant is now entitled to become the statutory guardian of the infant in the event that the infant’s father predeceases her.” Page 12.

“Consent is only dispensed with if the parent is “incapable” of giving it. My understanding of the incapacity envisaged in this case would be similar to incapacity under the law of contract. It would include situations in which the parent is mentally ill, is a minor (i.e. below 18 years), or where he/she is perpetually intoxicated.” Page 12-13.

“[With reference to the Children Act] the welfare of the child in issue must always be the paramount consideration in such decisions, against the interests of observing and respecting the public policy that adoptions ought to be safe.” Page 17.

“Because of the grave danger posed to such children by illegal adoptions, courts need to be very firm in situations where the inadequate laws on adoption in Uganda are not respected.” Page 19.

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