Wakilii

IN RE Apio Sarah & Achen Claire (Infants) (Misc. Cause No. 20 of 2018)

High Court · [2019] UGHC 15 · 2019 Adoption Order Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Adoption petition by non-citizen applicants for appointment as adoptive parents of two Ugandan infant children
Decision
Adoption order granted. Petitioners appointed as adoptive parents of Apio Sarah and Achen Claire.

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Holding

The court granted the adoption petition by non-citizen petitioners under exceptional circumstances, exercising its discretion to waive the statutory one-year continuous residence requirement. The court held that the welfare of the children was paramount. Both children were orphaned at ten days old and had been institutionalised for four years. Their biological father and extended family were unable to care for them and supported the adoption. The petitioners were found suitable, having fostered the children under supervision, obtained positive home study reports, and demonstrated commitment. The court emphasised that institutionalisation should be a last resort and that adoption served the children's best interests where family reintegration was not viable.

Outcome

Adoption order granted. Petitioners appointed as adoptive parents of Apio Sarah and Achen Claire.

Facts

Jason Murle Smith and Jill Marie Smith, United States citizens married in 2007 with four biological children, petitioned to adopt twin girls Apio Sarah and Achen Claire, born 15 April 2015. The children's mother died ten days after birth. Their biological father, Opira Richard, a builder earning approximately $2.63 per day with five other children, surrendered the twins to Welcome Home Ministries Africa for care. The children were placed under a care order of the Kagoma Magistrate's Court on 24 June 2015. The petitioners fostered the children from January 2017 under a foster care certificate. The second petitioner relocated to Uganda with the couple's four biological children to foster the twins but returned to the USA after six weeks due to severe malaria. The first petitioner, a staff sergeant in the US Air Force, could not remain in Uganda continuously due to work commitments. The biological father and extended family, all unable to provide care, supported the adoption.

Issues

  1. Whether the petitioners qualify to be adoptive parents under the Children Act and Children (Amendment) Act 2016, particularly whether the court should waive the requirement that non-citizens reside in Uganda for a continuous period of one year before adopting.
  2. Whether the application is in the best interests of the children.
  3. Whether the petitioners are suitable candidates for adoption of these children.

Orders

  • The petitioners Jason Murle Smith and Jill Marie Smith are granted an order of adoption in respect of the children Apio Sarah and Achen Claire.
  • The petitioners may travel with the children to the United States of America or any other country they may choose as residence in order to fulfill their obligations as adoptive parents.
  • The Registrar of Births and Deaths shall make an entry recording this adoption order in the Adopted Children Register.
  • This adoption order shall be furnished to the consular department in the Ministry of Foreign Affairs at Kampala and at the Ministry of Gender, Labour and Social Development in Kampala.
  • The petitioners shall meet the costs of this application.

Rules and key headnotes

Adoption — Inter-country Adoption — Statutory Requirements — Discretion to Waive Requirements
Under section 46(4) of the Children (Amendment) Act 2016, the court has power in exceptional circumstances to waive any of the requirements for inter-country adoption, including the requirement that non-citizens reside in Uganda for a continuous period of one year before adopting, where such waiver serves the best interests of the child.
Adoption — Welfare of the Child — Paramount Consideration
The welfare of the child is of paramount consideration whenever a court determines any question in respect to the upbringing of a child, including in adoption proceedings, and this principle must guide the court's evaluation of whether to grant an adoption order.
Adoption — Inter-country Adoption — Exceptional Circumstances
Exceptional circumstances permitting non-citizens to adopt Ugandan children include situations where the child is orphaned or abandoned, biological family members are unable to provide care, the child has been institutionalised beyond the institution's policy period, alternative care options have been exhausted, and adoption is demonstrated to be in the child's best interests.
Adoption — Institutionalisation — Last Resort
Institutionalisation of children should be the last option in child welfare. Orphanages are intended to be temporary placements pending availability of a suitable family and home in which an infant in need of care and protection can be raised.
Adoption — Inter-country Adoption — One-year Residence Requirement — Practical Impossibility for Both Spouses
Where it is practically impossible for both petitioners in a joint adoption petition to reside in Uganda for one year due to legitimate work and family commitments, the court may waive the continuous residence requirement provided at least one petitioner has remained in Uganda for a significant period to acclimatize to Ugandan culture and bond with the child, and the absence of the other petitioner is justified by compelling circumstances.
Adoption — Suitability of Adoptive Parents — Factors for Assessment
In assessing the suitability of prospective adoptive parents, the court considers their maturity, parenting experience, psychological and social preparation for adoption, financial capacity, home environment, support systems, positive recommendations from competent authorities in both Uganda and the applicants' home country, and demonstrated commitment to the child during the fostering period.

Legislation cited (13)

Cases cited (7)

  • Payne v Payne (2001) EWCA 166
  • B v B (1940) CH 54
  • Deborah Alitubeera (Civil Appeal No. 70 of 2011)
  • In Re AM (Adoption Cause No. 12 of 2017)
  • In Re Saunders Terry Tobin and Semujju Cromwell Clifford (Minors) (Miscellaneous Application No. 10 of 2017)
  • In Re Katumba Francis and Nakitende Aisha (Infants) (Adoption Causes Nos. 16 & 17 of 2018)
  • In Re Michael (An Infant) (Miscellaneous Application No. 33 of 2006)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

IN RE Apio Sarah & Achen Claire (Infants) (Misc. Cause No. 20 of 2018) [2019] UGHC 15 (27 May 2019)
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.