Washington Amy Elizabeth (Civil Appeal No. 123 of 2023)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The Court of Appeal held that the trial Judge erred by dismissing the adoption petition solely on the gender requirement (a single female adopting a male child) without evaluating all the statutory requirements against the welfare principle, which is the paramount consideration in matters concerning children. On reappraising the evidence, the Court found the child had been fostered by the appellant for over eleven years, had bonded with her, and that his biological parents and wider family had abandoned him and consented to the adoption. It held that the adoption was in the child's best interests and allowed the appeal. Ground 2, which failed to specify the evidence challenged, was struck off for non-compliance with Rule 86(1), but the appeal nonetheless succeeded.

Facts

The child, Buyinza Shalifu Josiah, was born on 9 January 2009 to two living biological parents. After the parents separated in 2011, the mother left the child in the care of his paternal grandparents and never returned. The grandparents, who were peasants receiving no support from the family, sought assistance from the LC1 Chairperson, who referred the matter to Kupundwa Ministries, a community organisation of which the appellant is Executive Director. The appellant was appointed the child's foster parent on 28 May 2011 and cared for him for over eleven years under the supervision of the Probation and Social Welfare Officer. Attempts to resettle the child with his biological parents and wider family failed; the parents and several relatives declined to take the child and consented to the adoption. The probation report recommended the appellant, who is financially stable, has no criminal record, and had previously adopted another male child. In 2021 the appellant petitioned for adoption; the High Court dismissed the petition because the child's parents were alive and a single female was found unsuitable to adopt a male child.

Issues

1. Whether the learned trial Judge erred by failing to consider the welfare of the child as the paramount and guiding principle in determining the adoption petition.
2. Whether the learned trial Judge erred by failing to properly evaluate the evidence before her.

Orders

• The decision and orders of the High Court are set aside.
• The Appellant, Amy Elizabeth Washington, is appointed as the adoptive parent of the child Buyinza Shalifu Josiah.
• The Appellant is permitted to obtain a Ugandan passport for the child.
• Costs of the appeal shall be borne by the Appellant.
• Ground 2 of the appeal is struck off for non-compliance with Rule 86(1).

Key headnotes

Legislation cited (11)

• Children Act Cap 59 s.3(1)
• Children Act Cap 59 s.45
• Children Act Cap 59 s.46
• Children (Amendment) Act s.45(1)(a)
• Children (Amendment) Act s.13
• Children (Amendment) Act s.14
• Children (Amendment) Act s.47(1)
• Constitution of Uganda Article 34
• United Nations Convention on the Rights of the Child Article 3(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 30(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 86(1)

Cases cited (4)

• Re M (an Infant) (Supreme Court Civil Appeal No. 22 of 1991)
• Re Deborah Joyce Alitubeera & Richard Masaba (Civil Appeal No. 70 of 2011) [2012] UGCA 4
• J v C [1970] AC 668
• Ranchobhai Shivabhai Patel Ltd & Anor v Henry Wambuga & Anor (Civil Appeal No. 6 of 2017)