Wakilii

In Re Birabwa Mutaka (Adoption) (Adoption Cause No. 014 of 2018)

High Court · [2019] UGHCFD 8 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance adoption application under the Children Act (as amended) by non-citizen applicants seeking intercountry adoption order
Decision
Adoption order granted; applicants authorised to travel with child to USA; periodic reporting required until child attains 18 years

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Holding

The High Court granted an adoption order to US nationals who had fostered a Ugandan child for over three years. The court waived the biological mother's consent under s.47(2) of the Children Act, finding that she had abandoned the child and was virtually a stranger to her. The adoption was found to be in the child's best interests, with the applicants meeting all statutory requirements for intercountry adoption including the one-year fostering period, criminal clearance, financial stability, and home study approval.

Outcome

Adoption order granted; applicants authorised to travel with child to USA; periodic reporting required until child attains 18 years

Facts

Jonathan Patrick McLeod and Mary Frances Chrisman, US nationals aged 32 and 31, married since 2014 and working in Jinja as videographer and photographer respectively, applied to adopt Birabwa Mutaka, a seven-year-old girl. The child was born to James Lule and Nakirijja Norah but abandoned by her mother at a tender age. A DNA test confirmed Lule as the biological father. The child was placed in institutional care at Arise and Shine Uganda children's home in September 2012 after her father declined to care for her due to unemployment and lack of resources. The applicants, who worked as volunteers at the home, obtained a foster care order in November 2015 and had cared for the child for over three years. The biological father, earning approximately UGX 10,000 per day, consented to the adoption. The maternal grandfather, who had temporarily cared for the child, also consented, citing advanced age and extended family responsibilities. The mother's whereabouts were disputed but she had never visited or inquired after the child since abandoning her. The child expressed her desire to remain with the applicants whom she called mummy and daddy.

Issues

  1. Whether the applicants satisfied the statutory requirements for intercountry adoption under the Children Act (as amended).
  2. Whether the court should waive the requirement for the biological mother's consent under s.47(2) of the Act.
  3. Whether the adoption is in the best interests of the child.

Orders

  • The two applicants Jonathan Patrick McLeod and Mary Frances Chrisman McLeod are jointly granted an adoption order with respect to the child Biribawa Mutaka.
  • The applicants are allowed to travel with the child to the United States of America or other place that they may choose to reside in order for them to fulfill their obligations as adoptive parents.
  • The applicants shall register this order with the Uganda Registration Services Bureau, Ministry of Justice and Constitutional Affairs within seven (7) days from the date of their appointment as adoptive parents.
  • The applicants shall furnish the American Embassy in Uganda with a copy of this order within thirty (30) days hereof.
  • The applicants shall file with the Deputy Registrar of this Court at least once every three years (until the child attains the age of 18 years), a report showing her progress.
  • The applicants shall meet the costs of this application.

Rules and key headnotes

Family Law — Adoption — Intercountry Adoption — Statutory Requirements for Non-Citizen Adoptive Parents
Under sections 44-48 of the Children Amendment Act 2016, non-citizens seeking to adopt Ugandan children must meet specified requirements including: attaining 25 years of age and being at least 21 years older than the child; having lived in Uganda and fostered the child under supervision of a probation and social welfare officer for one year; having no criminal record; receiving a recommendation from their home country concerning suitability to adopt and that the home country will respect and recognise the adoption order; obtaining parental consent where parents are known; and being liable and prepared to support the child.
Family Law — Adoption — Parental Consent — Waiver of Consent Requirement
The court may exercise its powers under section 47(2) of the Children Act to waive the requirement for parental consent to adoption where the biological parent, though contactable, has abandoned the child at a tender age and has never visited or inquired after the child, such that the parent has become virtually a stranger to the child and reunification would not serve the child's best interests.
Family Law — Children — Welfare Principle — Paramountcy in Adoption Decisions
The welfare principle is paramount in any decision concerning the rights of children including adoption matters. In determining whether adoption is in a child's best interests, the court must weigh the emotional loss of staying with biological parents against the opportunities that would come with placement with adoptive parents, having regard to the child's ascertainable wishes, physical and emotional needs, likely effect of changes in circumstances, age and background, any harm suffered or risk of harm, and the capacity of biological parents or others to meet the child's needs.
Family Law — Adoption — Best Interests Assessment — Considerations in Intercountry Adoption
Where non-citizen applicants intend to remain resident in Uganda after adoption, the cultural shock a child would suffer due to displacement into a new family is minimised or eliminated, which weighs in favour of the adoption being in the child's best interests. Where applicants may relocate to their home country, they should be encouraged to bring the child back to visit her biological family and maintain connection to her cultural identity.

Legislation cited (7)

Cases cited (4)

  • JVC (1970) AC 668
  • David Twesigye (an infant) (HCMA No. 0004 of 2008)
  • Re Michael Lumu (Adoption Cause No. 8 of 2000)
  • In the Matter of Briona Nakayizza (Adoption Cause No. 13 of 2017)

Full judgment

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

In Re_ Birabwa Mutaka (Adoption) (Adoption Cause No. 014 of 2018) [2019] UGHCFD 8 (21 March 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.