HOW TO ADOPT A CHILD IN NIGERIA: EVALUATION OF THE PRACTICE OF ADOPTION IN NIGERIA

By – Babayemi Olaniyan, Notary Public, LL.M, ACIArb(UK) Acis, Aicmc, ABR

ABSTRACT

“Under the English Legal system, paternity is even presumed, once a child is born within wedlock, not minding whether the mother had “an away match” [1]Adoption is an evolving process in Nigeria. The need for adoption has received great attention especially as humanity evolves and the need for exclusive rights over and above any other person with regards to an abandoned child or a child received my guardianship.  Many questions arise. Who may adopt? Who may be adopted? What is the procedure involved in adoption? What are the legal effects of adoption? What are the negative effects/challenges of adoption? Adoption takes different forms and may be done under Statutory or Customary laws. The best interest of children (which include their survival, development, protection and participation) should be the guiding principle in the whole adoption process. The objective of this article is to provide answers to the above questions, looking at the current legal regime relating to adoption practice in Nigeria. Where necessary, suggestions for improvement are provided.

Keywords: Adoption, Parents, Child, Procedure, Challenges, Child’s Right Act, Adoption Order

2. WHAT IS ADOPTION?

Adoption is a procedure which “creates a parent-child relationship between the adopted child and the adoptive parents with all the rights, privileges and responsibilities that attach to that relationship. It may be added that adoption severs the legal relationship between the child and the natural parents and guardians. Adoption is unknown to common law and is entirely a creature of statute.

Adoption is effected by a Court order which vests parental responsibility for a child in the adopter(s) and extinguishes the parental responsibility of the birth parents [2]

In Nigeria, adoption may be effected either under statutory law or customary law. But the rules regulating it differ from State to State. It is one of the most life-transforming experiences that can happen to a child and their adoptive parents. The government office responsible for adoption in Nigeria is the Civil Court.^[3] Also, laws regulating it vary from country to country.

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.^[4] The factors that necessitate the adoption of a child range from the mere fact of being childless to the desire to replace a dead child, to acquire a companion for an only child, to stabilize a marriage, to legitimize an illegitimate child, to sustain a particular line of descent, to rescue a child who is in an irreversible situation of abandonment or to relieve parents who are unable to take care of their child.^[5] Many people adopt simply to give a home and family to children who might not otherwise have them. Adoption is important in society because it touches on status and therefore affects the rights and obligation of an adopted person. In most legal systems of the world, adoption is a statutory creation. Thus, for example, it was unknown to the English Common Law. Likewise, the practice is not recognized under Islamic law. Adoption is a common practice throughout the world and throughout history.

3. WHO MAY BE ADOPTED?

Adoption is most suitable for children who are in irreversible situations of abandonment. Generally, it is those children who are abandoned, neglected or persistently abused or ill-treated who are in need of adoption. There are two types of persons who may be adopted.

1. The first is a person who is under the age of 18(eighteen) years whose parents or where there is no surviving parent, guardian has consented to the adoption.^[6]
2. The other child is a child under 18(eighteen) years who 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.^[7]

This provision bridges the two approaches adopted by the pre-2003 State legislation on adoption. In the absence of any further qualification, it may be concluded that the person to be adopted may or may not be married. The adoption of a married person is almost unknown both under Statutory and Customary laws.

In Ogun,^[8] Delta, Edo and Lagos States, before an adoption order can be made, such a juvenile must have been abandoned and the parents and other relatives are unknown and cannot be traced by a juvenile court. But only the Oyo State law expressly requires that the child to be adopted must in addition to the age limit be a person who has never been married^[9]. In the absence of such restriction in the other States, it seems that a married juvenile may be adopted in those States.^[10] In the United States, many States allow the adoption of adults. Adults are usually adopted to ensure that they will inherit the estate of their adoptive parents. Some States preserve the rights of an adopted adult to inherit from his or her biological parents after the adoption.^[11]

4. WHO MAY ADOPT?

The Prospective adoptive parent(s) must inform the chief welfare officer of their intention to adopt at least three (3) months before the court order is made. For at least three consecutive months immediately preceding an adoption order, the juvenile must have been in the care and custody of the applicant. The applicant for adoption must be resident in Nigeria during this entire period. The confidential report of the welfare officer will be written after several visits to the home of the adoptive parents and after he or she is satisfied that the juvenile is settled and that the prospective adoptive parents are capable of looking after him or her. In such a case, a positive recommendation will be sent to the court. In some states, after the adoption has been granted, leave of court must be obtained by the adoptive parents before the child can be taken out of the jurisdiction of the court either temporarily or permanently.

Three categories of persons may adopt a child.

1. A married couple may jointly adopt with the authorization of a court if one of them has attained the age of twenty-five years.^[12]
2. Further, a married person who has obtained the consent of his spouse may adopt a child.^[13]
3. A single person may adopt if he has attained the age of thirty-five years, provided that the child to be adopted is of the same sex as the adopter.^[14]

In all the foregoing cases, the adopter(s) must be persons found suitable by the appropriate investigation officer, to adopt the child.

5. ADOPTION UNDER CUSTOMARY LAW

Customary law in several parts of Nigeria recognizes and enforces the adoption of children. However, adoption is rare because parents are generally unwilling to relinquish their rights over their children. Unlike the situation under statutory law, customary law has not developed sufficient criteria to make the institution readily identifiable.

Customary law adoption confers on the adoptive parent vis-à-vis the child the same rights and obligations as if the child was born in lawful wedlock or legitimized. Henceforth the adopted child becomes the lawful child of the adoptive parent and will succeed to his estate on intestacy. However, the adopted child will remain within the prohibited degree of consanguinity in respect to his natural family.^[15]

6. ADOPTION UNDER STATUTORY LAW

Prior to 1965, there was no statutory provision for adoption in any part of Nigeria. This caused a lot of hardship in determining the legal relationship between persons who wrongly believed that they had adopted a child. Often a married couple took into their household an orphan or destitute child from a voluntary organization on the understanding that such child was being adopted. And the unfortunate result was that the natural parents or guardian of such a child at a later date asserted their parental rights by demanding the return of the child, irrespective of the relationship which has developed between the child and the purported adopters.

The first adoption legislation in Nigeria was enacted in the then Eastern Nigeria in 1965, and was known as the Eastern Nigeria Adoption Law, 1965 which came into force on 20th May, 1965.^[16] This law now applies in Anambra, Imo, Ebonyi, Abia, Rivers and Bayelsa States. In 1968 an adoption law was promulgated for Lagos State. Subsequent to this, other States followed with their own laws.^[17] It has been suggested that the failure of any Northern State to enact legislation on adoption arises from the fact that Moslem law does not recognize adoption. It is a widely believed notion that the largest number of adoptable children, i.e. children in dire need of care and protection, come from the Northern part of the country. They are commonly found all over the country as street beggars being exposed to all kinds of abuse and criminal influences.^[18] The Child’s Right Act 2003 makes provision for adoption and this is reflected in the laws of states which have passed similar legislation. In those states, the provisions of the State’s Child Rights Law will supersede the previous state enactment. For the states which have legislation on adoption but have not yet enacted the Child’s Rights Legislation, the pre-2003 legislation remains in force. All the existing legislations have substantially similar provisions with few differences.

The current state of International human rights law is that adoption should be regarded principally as a child care device rather than as a means of providing succour to childless persons or relief to incapable parents, as it was conceived under the old international legal order. Thus, the Act duly recognizes the paramount importance of the welfare and best interests of the child in adoption proceedings, as indeed in “every action concerning a child”.^[19]

7. PROCEDURE FOR ADOPTION

Before a court makes an adoption order, it shall satisfy itself that certain criteria have been fulfilled. Of great importance is the need to ensure that all requisite consent has been obtained unless dispensed with. Adoption services established by states are to provide parties involved in adoption adequate counseling.^[20] The court also has to be satisfied that no person involved in the adoption has agreed to give or receive any payment or reward in consideration of the adoption.^[21]

In Nigeria, the Chief Justice of Nigeria may make rules of court for regulating the general practice and procedure of the court in respect of adoption of children. This power includes power to make provisions for application for an adoption order to be heard and determined otherwise than in open court, the admission of documentary evidence of consent and requiring the child development officer to prepare for the court’s consideration a report to assist the court in determining whether, on application for adoption, the order will be for the welfare and best interest of the child.^[22]

The jurisdiction to make adoption orders under the Child’s Rights Act is vested in the Family Court at Magisterial level.^[23]A decision on an application for an adoption order may be appealed from the family court at Magisterial level to the court at High Court level. Where the High Court level exercises original jurisdiction or appellate jurisdiction, an appeal shall lie to the Court of Appeal. Proceedings in respect of an appeal shall be conducted in chambers.^[24] Every action taken in an adoption proceeding and its final outcome must be entered into the Adoption Register. A certified copy of an entry in the Adopted Children’s Register if stamped or sealed by the registrar’s office shall be proof of such adoption as is specified therein.^[25]

In line with the above section of the Act, an Applicant, cannot bring a child from Delta State Orphanage Home to formalize her adoption documents at the Family Court FCT, it should be at the Family Court in Delta State.

The laws in most parts of the country provide that an application for an adoption order must be made in the prescribed form and submitted to the registrar of the competent court. The court will appoint a guardian ad litem for the Juvenile to represent him or her in the adoption proceeding.^[26] The person appointed as the guardian ad litem is the welfare officer in charge of the area where the juvenile resides; or a probation officer or some other person suitably qualified in the opinion of the court of assignment. The guardian ad litem investigates the circumstances relevant to the proposed adoption and reports in writing to the court.

In addition, foreigners must seek private legal assistance to facilitate the process of adoption whereby a letter from the social welfare officer to the immigration officer, informing the immigration officer that the adoptive parents are now the legal parents of the juvenile, must be obtained before the adoptive parents will be permitted to obtain a passport to take an adopted child out of Nigeria.^[27]

It is important to stat that even though the Child’s Rights Act did not specifically state that we have two types of adoption, practice has made us to distinguish it into private and public in terms of the documents required for formalization.

Consent of Parents.

The consent of the biological parents is very essential in the grant of an adoption order. This is applicable to private adoption where the source of the child is known e.g relatives or friends.

Fostering Letter.

In Public Adoption, the source of the child is not known hence, it is pertinent that a fostering letter be issued to the Applicant from the Gender Department, Child Welfare Division of the State( this replaces the consent of biological parents in a private adoption). The child would be in the care of the applicant for a period of at least 3( three) months immediately preceding the date on which the order is made. S.131(c) of the Child’s Rights Act.

It’s very important 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 designed to meet the needs of a child who has been  or may be adopted.[28]

It is also very interesting to note that a person can adopt by Will. [29] This does not seem to have legal backing in Nigeria but it is recognized as a means of adopting a child.

8. LEGAL EFFECTS OF CHILD ADOPTION

Section 141(1) of the Child’s Rights Act provides that:

• On an adoption order being made;
• All rights, duties, obligations and liabilities, including any 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 a child, including all religious rights, right to appoint a guardian and to consent or give notice of dissent to marriage shall be extinguished; and

In the case of joint adoption, the husband and wife shall stand to each other in respect of custody, maintenance and rights of access as if the adopted child was their natural child. The child will also stand to the joint adopters as a child born to them.^[30] As a consequence of the foregoing, Section 147 prohibits marriage between an adopter and the adopted child. Similarly, marriage between the natural child of the adopter and the adopted child is prohibited and will be null and void.^[31]

For the purposes of the devolution of the property of the adopter on intestacy, an adopted child shall be treated as a child born to the adopter. In the dissolution of marriage made after an adoption order, any reference to the child or children of the adopter shall include the adopted child unless the contrary intention appears. Furthermore, a reference to any person related to the adopted child in any degree shall, unless a contrary intention appears, be regarded as a reference to a person who would be related to him in that degree if he was the natural child of the adopter and were not the child of any other person.^[32] Fundamentally, adoption severs all legal relationships between a child and the natural parents or guardian and establishes that relationship between the child and the adopter(s).

9. NEGATIVE EFFECTS/CHALLENGES OF ADOPTION IN NIGERIA

Just like other part of the world, child adoption in Nigeria is faced with several challenges ranging from^[33]

1. Stigmatization
2. Financial Implication
3. Unknown parental background
4. Fear of the unknown
5. Lack of genetic lineage
6. Possible inherited or genetic diseases,
7. Psychological and religious beliefs, poverty
8. Establishment of illegal adoption and orphanage homes,
9. Future claim by the natural parents
10. Religious bias
11. High Premium
12. Middleman
13. Procedural bottleneck

10. CONCLUSION

The knowledge of adoption processes in Nigeria is desirable but does not translate into global best practices as a lot of misconception and ignorance abound concerning the process. Taking a deep look at the legal regime relating to adoption in Nigeria, the practice of adoption seeks to permanently sever the relationship between the adopted child and his natural family. The enactment of the Child’s Right Act in Nigeria has legalized child adoption. However, the negative effect of adoption is “what if the adoptee wants to go back to his natural family?” Adoption should therefore be reserved for children who are in irreversible situations of abandonment; foster parenting or guardianship would be preferable so that irrespective of how nugatory the matter may be, such child would be free to maintain contact with their natural families. Only those children who are abandoned, neglected or persistently abused or ill-treated

11. RECOMMENDATIONS

The future prospect of adoption will largely depend on adhering to the  principles and standards enunciated in the international adoption law as well as the best interest of children (which include their survival, development, protection and participation).

 The following recommendations are made to the government, adoption agencies, religious bodies and community;

1. All illegal adoption agencies should be shut down and perpetrators duly punished in accordance with the provisions of the law.
2. Citizens should help the law enforcement agencies about any sinister activity that babies are trafficked by informing the police and related government agencies e. g naptip, immigration, etc.
3. Public enlightenment should be carried out for the society about the benefits of child adoption to enhance willingness, acceptability and participation.
4. Educating family members and community to shun any form of stigmatization or discrimination against the adopted children.
5. Removal of existing bottlenecks that hinder adoption. The child must be a priority at all times.
6. The need to adhere to stringent regulations should be done away with and the overall welfare of the child should always be priority.
7. Laws must be dynamic to permit adult adoption. Where a grown adult can adopt a adult as his or her child.
8. Proper and adequate remuneration for welfare officers to ensure the prompt discharge of their duties.

Co-author

Adedolapo Adeyosoye Esq

Ngozi Molokwu Esq

Caveat!

The information in this article is meant for information and educational purposes only. It should not and it does not amount to legal advice.

For more information contact

info@lehiattorneys.com

yemi.olaniyan@lehiattorneys.com

www.lehiattorneys.com

[1] Duru v. Duru (2016) LPELR-40444(CA)  (Pp. 18-23 paras. C)

[2] Ibiam v. Ibiam & anor (2017) LPELR-42028(CA)  (Pp. 14-19 paras. C)

^[3] Van Bueren, G., The International Law on the Rights of the Child (The Hague: Kluwer Law International, 1998)

^[4] Chukwu, op. cit.; referring to Uzodike, E.N.U., “Law and Procedure for Adoption in Nigeria” (1991) Nig. J. Contemp. Law

^[5] Oyebanji, M.B., “Adoption Law in Nigeria” 18 N.B.J

^[6] Section 128(a) of the Child’s Right Act 2003

^[7] Section 128(b) of the Child’s Right Act 2003

^[8] Ogun State Adoption Law 1983

^[9] Oyo State Adoption Law 1984

^[10] Child Adoption: Nature And Procedure Under Nigerian Law Salome Konkat Kigbu (Mrs)

^[11] Sklar, Steven I., and Wasserman, Alan. “Adoption.” Microsoft® Encarta® 2009 [DVD]. Redmond, WA: Microsoft Corporation, 2008

^[12] Section 129(a) of Child’s Right Act 2003

^[13] Section 129(b) of Child’s Right Act 2003

^[14] Section 129(c) of Child’s Right Act 2003

^[15] E.I NWOGUGU –Family Law in Nigeria 3^rd Edition

^[16] Salome Konkat Kigbu (Mrs), “Child Adoption: Nature and Procedure under Nigerian Law”, available at http://dspace.unijos.edu.ng/bitstream/10485/384/1/502-523.pdf

^[17] Bendel State in 1979; Cross River State in 1981; Ogun in 1983 and Oyo in 1984

^[18] Adoption of Children in Nigeria under the Child’s Rights Act 2003 by Larry O.C. Chukwu, Esq., available at http://www.law2.byu.edu/isfl/saltlakeconference/papers/isflpdfs/Chukwu.pdf. Accessed on 26 th June 2012

^[19] Child’s Right Act 2003

^[20] Section 133 (a) and (b) of the Child’s Right Act

^[21] Section 133 (d) and Section 143 of the Child’s Right Act

^[22] Section 226(3) of the Child’s Right Act

^[23] Section 138 of the Child’s Right Act 2003

^[24] Section 136 of the Child’s Right Act 2003

^[25] ER Law, Section 16, Lagos Section 16; Bendel Section 1 R; Cross River Section 14; Ogun Section 14. 22.Olaiya v. Olaiya (2002) 8 N.W.L.R.(Pt. 782) 652; (2005) 2 SMC 84

^[26] Section 126 of the Child’s Right Act

^[27] Section 146 of the Child Right’s Act

[28]  ^{See S.125(1a) of the Child’s Rights Act.}

[29] ibiam v. ibiam & anor (Supra)

^[30] Section 141(2) of the Child’s Right Act

^[31] Section 147 of the Child’s Right Act

^[32] Section 141(3) of the Child’s Right Act

^[33] Eke, C., Obu, H., Chinawa, J., Adimova, G., and Obi, I., 2014. Perception of child adoption among parents/caregiver of children attending pediatric outpatient’s clinic in Enugu, South East, Nigeria. Nigeria Journal of Clinical Practice, 17(2), 188-195. DOI:10.4103/1119-3077.127549