… Unavailing remedy?
This article by Josephine Aburime discusses local and cross-border adoptions; that the fact that Nigeria is not a signatory to the United Nations Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention) which inter alia, prescribes guidelines for international adoptions, is an impediment that must be addressed, since in its absence, we have had to resort to local legislation which are somewhat deficient, and seem to prohibit international adoptions
The Child Rights Act 2003 (“the Act”) is a Federal legislation, providing for the basic rights of a Nigerian child. It also provides for custodial matters such as adoption, foster parenting and guardianship. The Act has been domesticated in some States of the Federation including Lagos State which enacted the Child Rights Law of 2007 (“the Law”). This in itself, has brought some inconsistencies on matters relating to children, and with particular reference, adoption.
Adoption: The Need for Documentation
Private adoption has been long practiced in Nigeria, whereby a private arrangement between the adopter, usually a relative or kinsman and the parents of the child, a child is adopted.
However, contemporary developments including the menace of child trafficking has impelled the need for proper documentation reflecting adoptions, resulting in adoptions being formalised by the courts upon application of the parties. Embassies and border agencies now insist on the presentation of legal adoption documentation, in order to secure visas for adopted children or accord the adoptive parents, parental recognition over the child. This is particularly pertinent when the adoption is international in nature, referring to adoptions across borders where a national or resident of another country adopts a child from a different country, other than where he/she is resident. That is to say in Nigeria, a foreigner coming to Nigeria to adopt and take the child back with them abroad, or Nigerians resident abroad adopting a child in Nigeria with the intent of taking the child to live with them abroad. The term could also include a foreigner temporarily resident in Nigeria, adopting a Nigerian child.
There is no gainsaying that due to the psychological effects adoptions are likely to have on children along with the sociocultural differences, a child would need to adjust to living overseas, material considerations in cross-border adoption would necessarily be different from domestic adoptions.
The United Nations Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention), prescribes guidelines for international adoptions. Its objects include, establishing safeguards ensuring a child’s internationally recognised fundamental rights are respected, establishing a system amongst Contracting States to prevent abduction or traffic in children, and to secure the recognition in Contracting States of adoptions made in accordance with the Convention. Nigeria is not a signatory to this Convention, resulting in resort to domestic legislation in international adoptions. But, these extant laws are inadequate and inconsistent to sufficiently govern the concept and process of adoption by international applicants.
Prohibition of Adoption by Foreigners and Non-Resident Nigerians
For domestic adoptions, the Act and the Law respectively, vest jurisdiction in the High Courts. Both enactments are devoid of provisions for adoption by foreigners, or non-residents of Nigeria. Indeed, it appears to be specifically prohibited. The provisions of Section 131 of the Act specifically emphasises that an adoption order shall not be made unless the Applicant is a citizen of Nigeria, and the child has been in the care of the Applicant for a period of at least three consecutive months immediately preceding the date, whilst Section 123 of the Law provides that an adoption order shall not be granted unless the Applicant is a resident and has been so resident for at least five years, is a Nigerian, both the Applicant and the child are resident in the same State, and the child has been in the care of the Applicant for at least three consecutive months. The apparent ban on adoption by foreigners or non-resident Nigerians from the foregoing provisions, leaves a lacuna on the legality or otherwise of adoption in these circumstances. This however, appears to have been overlooked by the relevant authorities. The courts, it may be argued, rely on their unlimited jurisdiction afforded by the 1999 Constitution to grant inter-country adoption orders. The Lagos State authorities on the other hand, also grant adoption applications without any clarity on the authority to so act. The source of this dichotomy can again, be traced to the Law. After vesting jurisdiction in the courts for adoption matters, the Law further establishes an Adoption Service Organisation designed to meet the needs of adopted children, their parents or guardians and adopters. It then purports to also vest adoption powers on the Adoption Service in Section 118 where it reads that:
(1) An application for adoption shall be made to the services…the Court shall order an investigation to be conducted by— (a) Social Welfare Officers; …(3) The Court shall, in reaching a decision relating to the adoption of a child…”
The reference “to the services” in the opening sentence appears to have been an error since the ensuing text refers to the court, but the inconsistency has created confusion which has been capitalised upon the Lagos State Ministry of Youth and Social Development. They process and grant applications from prospective adopters which are then taken to the Magistrate Court, Family division to be approved by a Magistrate. Interestingly, they also grant adoption orders to Applicants who reside abroad, despite the clear requisite conditions which exclude international Applicants.
Further complicating matters, the US Embassy in Nigeria seemingly recognises this adoption order from the Ministry, whilst the order is not accorded full recognition by the UK authorities. To give effect to an adoption order granted in Nigeria, there may have to be recognition of that order by a UK court. This lack of certainty has affected the number of valid applications, in the court system. The few cases in the courts are determined on an ad hoc basis, depending on the presiding Judge’s appreciation of the facts and his discretion. Unfortunately, in some cases, the High Court Judges have shirked their responsibility, and referred Applicants to the Ministry.
A UK Case Study
A case study is one decided by a UK High Court in 2017, where in a ruling which may be considered exploratory, Dame Justice Anna Pauffley (Retired) of the Family Division acceded to the application for recognition of a Nigerian adoption order. A Nigerian couple living temporarily in the UK had applied to court to recognise and give effect to the adoption order granted them in Nigeria, of their 2-year old son to enable him join them in the UK for the duration of their stay there. Not being permanent legal residents, the provisions of the UK’s Family Act or other domiciliary laws had not availed them, and their son had been refused entry into the country as a result. Reviewing this case in line with the respective domestic laws of both the UK and Nigeria was integral to the court’s decision, since as mentioned earlier, Nigeria is not a signatory to the Hague Convention.
In this recondite case, the Judge took a most innovative and industrious approach influenced by her sense of justice, and after considering factors, including the fact that it would not be contrary to public policy, granted the application and the Nigerian parents benefitted from a valid order of court previously issued by a Nigerian Judge.
This benefit was however, not accorded a Nigerian couple living in the UK in a recent case at the Lagos High Court, where the problem of the dichotomy of the Courts and the Ministry of Social Development reared its ugly head. The couple, permanently resident in the UK, sought to adopt their orphaned relatives from the Nigerian Court. Having established the relationship between the Applicants and the children and reviewed all supporting documentation, the family court Judge fell short of granting the adoption order, and without a ruling thereon, opted rather to refer the Applicants to the Ministry where they were told a home study report from their country of domicile was a pre-requisite. They then sought to obtain report from their Borough in the UK, but were informed that adoption orders from Nigeria were not recognised. They were in a quagmire. Had the High Court Judge not opted to abdicate her responsibility and granted the adoption order, the couple may have had the benefit of applying to a UK court for recognition of that order, as in the former case.
The decision by the UK Court showed a dynamism arising from the evolving complexities and diversities of human relationships, required in family courts. In the today’s world where cultures, traditions and norms are so varied and legal regimes in some nations embrace cultures that are prohibited in others, this dynamism should be a catalyst for flexibility to be applied with a sense of responsibility, discretion and justice.
Adoptions in themselves alter the legal identity of a child and have other peculiarities worth addressing, if the law is to be practicable e.g. change of name of the adopted child, right of the adopted child or other third parties to access the adoption records, death of a single adoptive parent of a child etc. The need for a review of the extant law, with a view to enacting a comprehensive Federal law, cannot therefore, be over-emphasised, particularly because as a Federation, it is implausible that respective State laws should differ on international adoption modalities, in their respective States. Such a regime would be open to abuse, and sheer exploitation.
In the meantime, Nigeria’s ratification of the Hague Convention would set the country on the right course in not only safeguarding and protecting her children, but also affording them the opportunities available to them in today’s world.
Jennifer Aburime, Legal Practitioner, Lagos