Wakilii

In Re Application for Legal Guardianship by Michale Cane, Jr. and Laura Jean Icardi (Family Cause No 02 of 2016)

High Court · [2016] UGHCFD 11 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for legal guardianship of an abandoned child by United States citizens
Decision
Applicants appointed legal guardians of the child and permitted to travel with the child to the United States to complete adoption proceedings there

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the High Court has jurisdiction under Article 139(1) of the Constitution and section 44(1)(b) of the Children Act to determine guardianship applications by non-citizens. The Children (Amendment) Act 2016 prohibiting guardianship to non-Ugandans does not apply retrospectively to an application filed before the Act commenced on 2 July 2016. The welfare of the child is paramount. Where an abandoned child has no known parents and no Ugandan has come forward to adopt, it is in the child's best interests to grant guardianship to foreign applicants who are financially stable, married, have suitable accommodation, and have been properly assessed.

Outcome

Applicants appointed legal guardians of the child and permitted to travel with the child to the United States to complete adoption proceedings there

Facts

The applicants, a married couple who are United States citizens, applied for legal guardianship of Emanuel Kisakye, an abandoned child estimated to be two years and four months old. The child was abandoned at Masaka Regional Referral Hospital on 17 April 2014 by a woman believed to be his biological mother. The child was reported to police and handed over to Okoa Refuge, an NGO caring for abandoned children. A care order was issued by the Family and Children Court on 15 July 2014. Radio and print announcements were made but no one came forward to claim the child. The applicants are married with two biological children, own a home, and are financially stable. They were assessed by relevant bodies and found suitable to be guardians. The application was filed on 20 May 2016. The Children (Amendment) Act 2016 prohibiting guardianship to non-Ugandans was assented to on 20 May 2016 but commenced on 2 July 2016.

Issues

  1. Whether the High Court has jurisdiction to determine the guardianship application.
  2. Whether the Children (Amendment) Act No. 9 of 2016 prohibiting guardianship to non-Ugandans applies retrospectively to an application filed before the Act came into force.
  3. Whether it is in the best interests of the abandoned child to grant legal guardianship to the United States citizen applicants.

Orders

  • Michael Cane Icardi, Jr and Laura Jean Icardi appointed guardians to the child Emanuel Kisakye.
  • Applicants permitted to travel with the child to the United States of America to complete adoption proceedings.
  • Applicants authorised to obtain a Ugandan passport for the child.
  • Biological parents lose parental rights over the child.
  • Applicants to register the order with the United States Embassy in Kampala and the office responsible for children and family welfare in their home state.
  • Applicants to register the order with the Registration Services Bureau in Kampala and Interpol office in Kampala.
  • Applicants to file annual reports about the child's development to the Ugandan Embassy in the United States until the child turns 18.
  • Applicants to pay the costs of the application.

Rules and key headnotes

Guardianship — Jurisdiction — High Court Powers — Non-Citizen Applicants
The High Court has jurisdiction to determine guardianship applications by non-citizens under Article 139(1) of the Constitution, which confers unlimited original jurisdiction, and section 44(1)(b) of the Children Act Cap 59, which grants the High Court jurisdiction over guardianship matters involving non-citizens.
Retrospective Application — New Legislation — Pre-existing Rights
A statute will not be given retrospective effect so as to affect rights in existence at the time of its passing unless a clear intention to that effect is manifested by express words or necessary implication. Where an application for guardianship was filed before the commencement of amending legislation prohibiting such guardianship, the law as it existed at the time of filing applies.
Commencement of Legislation — Statutory Instruments
Under section 17(4) of the Interpretation Act, a statutory instrument made and published on the date of commencement of the parent Act is deemed to come into force simultaneously with that Act. An Act assented to by the President but not yet commenced by statutory instrument is not law until the commencement date.
Guardianship — Best Interests of the Child — Welfare Principle — Abandoned Children
In determining guardianship applications, the welfare of the child is paramount. Under the First Schedule to the Children Act, the court must consider the child's physical, emotional and educational needs, the likely effects of changes in the child's circumstances, any harm suffered or at risk of suffering, and the capacity of proposed guardians to meet the child's needs. Where an abandoned child has no known parents and no Ugandan has come forward to adopt, and foreign applicants are financially stable, married, have suitable accommodation and character, and have been properly assessed, it is in the child's best interests to grant guardianship.
Guardianship — Suitability Criteria — Inter-Country Adoption
In determining the suitability of applicants for guardianship in inter-country adoption cases, the court considers: stability of the applicants' marriage; financial status; stable place of abode; criminal records and assessments; and recommendations from government institutions and persons well acquainted with the applicants in their home country.
Jurisdiction — High Court Inherent Powers
The High Court has inherent powers under section 14 of the Judicature Act to make such orders as are necessary in the interests of justice, and under section 98 of the Civil Procedure Act to grant remedies on such terms as it thinks fit.

Legislation cited (17)

Cases cited (8)

  • In Re Francis Palmer (Civil Appeal No. 32 of 2006)
  • In Re Howard Amani Little (Civil Appeal No. 33 of 2006)
  • In Re Deborah Joyce Alitubeera (Civil Appeal No. 70 of 2011)
  • In Re Richard Masaba (Civil Appeal No. 81 of 2011)
  • Tom Butime v Muhumuza David and Another (Election Petition Appeal No. 11 of 2011)
  • Philips v Eyre [1870] LR 6 QB 1
  • Pulborough School Board Election (1894) 1 QBD 725
  • Colonial Sugar Refining Co v Irving [1905] AC 369

Full judgment

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

In Re_ Application for Legal Guardianship by Michale Cane, Jr. and Laura Jean Icardi (Family Cause No 02 of 2016) [2016] UGHCFD 11 (13 July 2016)
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.