Wakilii

In The Matter of Petitions for the Adoption of AM (child) By Balbina KJ (child) By Salguero and Berzenkovich(Appellants)

Court of Appeal · [2023] UGCA 358 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from the High Court (Family Division) rejection of inter-country adoption petitions
Decision
Appeal dismissed; refusal of the inter-country adoption orders upheld

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Holding

The Court of Appeal dismissed the consolidated appeals against the High Court's refusal to grant inter-country adoption orders. The Court held that section 46 of the Children's Act, as amended, requires foreign applicants to reside in Uganda and foster the child for at least one year, and that the discretion to waive these requirements under section 46(4) is exercised cautiously and only in exceptional circumstances. Virtual bonding over technological platforms and a 60-day visit during which the children remained in an institution did not satisfy the fostering purpose. The appellants' employment and family obligations did not amount to exceptional circumstances, and waiving the requirements was not in the children's best interests.

Facts

Two minors, AM and KJ, were abandoned by their parents in Bunyangabu District. After being tortured by a relative, they were placed at Toro Babies Home, where they have lived since 2018 without enrolling in any formal school. Their father could not be traced and their mother, having remarried, consented to their adoption. The appellants, relatives in Argentina, learnt of the children through their daughter/niece who had volunteered at the home. Due to COVID-19 travel restrictions, the appellants interacted with the children largely via online platforms and provided maintenance money. They visited Uganda for about 60 days in late 2021 and appeared before the National Alternative Care Panel, but could not remain for the statutory one-year fostering period because of work and family obligations in Argentina. The Probation and Social Welfare Officer recommended adoption but noted the unmet one-year fostering requirement. The High Court rejected the petitions, prompting this appeal.

Issues

  1. Whether the trial judge erred in declining to waive the requirement that the appellants stay in Uganda and foster the child for one year.
  2. Whether the appellants qualified to be appointed adoptive parents of the children.
  3. Whether it was in the best interests of the children to grant the adoption orders.
  4. Whether the appellants were accorded a fair hearing during the adoption petition.
  5. Whether the appellants made sufficient attempts to foster and bond with the children.

Orders

  • The appeal fails.
  • The appellants shall meet the costs of the consolidated appeals.

Key headnotes

Adoption — Inter-country Adoption — One-year Residence and Fostering Requirements under Children's Act s.46
A non-citizen seeking to adopt a Ugandan child must reside in Uganda for at least one year and foster the child for at least one year under the supervision of a probation and social welfare officer; these are basic minimum requirements that must be strictly construed.
Adoption — Waiver of Requirements — Discretion under Children's Act s.46(4) — Exceptional Circumstances
The court's discretion under section 46(4) to waive the requirements imposed on a foreign adoptive applicant is exercised on a case-by-case basis with caution, only in exceptional circumstances and always in the best interest of the child.
Adoption — Fostering — Purpose and Adequacy of Virtual Bonding
The purpose of fostering is to provide a safe, stable, home-based transition enabling the applicant and child to learn each other's culture and temperament; virtual bonding and short institutional visits do not satisfy this purpose and cannot substitute for the statutory fostering period.
Adoption — Welfare Principle — Best Interests of the Child as Paramount Consideration
The welfare and best interests of the child are the paramount consideration in any decision concerning a child, including an adoption order, and must guide the exercise of the court's discretion.
Right to Fair Hearing — Opportunity to be Heard through Counsel
The right to be heard does not require that a party be heard in person; representation by counsel suffices, and a party who is given a reasonable opportunity to be heard but fails to utilise it cannot complain of denial of a fair hearing.

Legislation cited (12)

  • Children (Amendment) Act 2016 s.3
  • Children (Amendment) Act 2016 s.4
  • Children (Amendment) Act 2016 s.14(c)
  • Children Act s.45
  • Children Act s.46
  • Children Act s.46(4)
  • Children Act s.47(1)
  • Constitution of the Republic of Uganda 1995 art.34(1)
  • Constitution of the Republic of Uganda 1995 art.34(7)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)
  • African Charter on the Rights and Welfare of the Child art.1
  • United Nations Convention on the Rights of the Child art.3

Cases cited (7)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • In the Matter of Kyakutwika Patrick and Muyaya Jackson (Adoption Cause No. 18 of 2018)
  • Re Muhairwe & In re an Application for Adoption by Birgitte N. Markussen & Han H Philipsen HCT-00-FD-0100-2008
  • R v Gyngall [1893] 2 QB 232
  • Pulkeria Nakaggwa vs. Dominiko Kiggundu (H.C.B) 310
  • J v C [1970] AC 668
  • Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji (Civil Application No. NAI 179 of 1998)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.