Wakilii

In Re Hassan Kaaya (child) (Family Cause No. 002 of 2018)

High Court · [2018] UGHCFD 9 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ex parte application for adoption order under the Children (Amendment) Act 2016
Decision
Adoption order granted. Petitioner awarded exclusive care, custody and control of the child with permission to travel internationally.

Observed later treatment

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Holding

The court granted the adoption application by a United States citizen for an abandoned Ugandan child. The court held that where a child has no known parents or relatives, institutional care is the only alternative, and a foreign petitioner has fostered the child for the requisite period under probation supervision, exceptional circumstances justify inter-country adoption. The court waived the requirement for a home study from the petitioner's country of origin where the petitioner had resided in Uganda for five years and positive local assessments supported her suitability. The child's welfare was found paramount and best served by granting the order.

Outcome

Adoption order granted. Petitioner awarded exclusive care, custody and control of the child with permission to travel internationally.

Facts

Hassan Kaaya was found abandoned as an infant of approximately three months in 2008 in a banana plantation at the King's palace in Lubiri, Kampala. Aisha Sasira, who found him, cared for him until 2012 when financial constraints led her to place him with Missionaries of the Poor orphanage. Police investigations to locate his biological parents or relatives proved futile, with unconfirmed reports suggesting his mother was Rwandese and father Somali, both having relocated. Clare Maureen Byrne, a United States citizen working as an occupational therapist in Uganda since 2013, met the child while working at Missionaries of the Poor. She obtained a foster care order on 7 December 2016 and fostered the child under probation supervision for over a year. A public notice in Bukedde newspaper elicited no response from relatives. The child had bonded strongly with the petitioner and wished to remain with her.

Issues

  1. Whether the child Hassan Kaaya is a suitable candidate for an adoption order.
  2. Whether the petitioner Clare Maureen Byrne, a non-citizen, qualifies to be an adoptive parent under the Children (Amendment) Act 2016.
  3. Whether granting the adoption order is in the best interests of the child.

Orders

  • The petitioner Clare Maureen Byrne is granted an order of adoption in respect of the child Hassan Kaaya.
  • The petitioner shall have exclusive care, custody and control of the child Hassan Kaaya, free from the claims or hinderances of all others, and shall be held responsible for his maintenance, education and support.
  • The petitioner may travel with the child to the United States of America or any other country of her choice, in the event that she has to return there to fulfill her obligations as an adoptive parent.
  • The Registrar of Births and Deaths shall make an entry recording this adoption 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 petitioner shall meet the costs of this application.

Rules and key headnotes

Family Law — Adoption — Inter-country Adoption — Exceptional Circumstances
A non-citizen may adopt a Ugandan child only in exceptional circumstances, which exist where the child is abandoned with no known parents or relatives, institutional care is the only alternative, and the foreign petitioner demonstrates fitness through local fostering and probation supervision.
Family Law — Adoption — Statutory Requirements — Waiver of Home Study
A court may exercise its discretion under section 46 of the Children (Amendment) Act 2016 to waive the requirement for a recommendation from the foreign applicant's home country where the applicant has resided in Uganda for an extended period and positive assessments from Uganda probation officers and other local sources support the applicant's suitability.
Family Law — Adoption — Best Interests of the Child — Welfare Principle
In determining whether to grant an adoption order, the welfare of the child is paramount and must be assessed by considering the child's wishes, physical and emotional needs, age and background, any harm suffered or risk thereof, and the capacity of the proposed adoptive parent to meet the child's needs.
Family Law — Adoption — Parental Consent — Waiver
The requirement for biological parents' consent to adoption may be dispensed with where the parents are unknown and efforts to trace them, including police investigations and public notices, have proved futile.
Family Law — Adoption — Sole Female Applicant Adopting Male Child
A sole female applicant may adopt a male child under section 45(3) of the Children (Amendment) Act 2016 where special circumstances justify, such as where the child was placed under her care through a foster care order and she is the only adult willing to provide a home.
Family Law — Adoption — Alternative Care Options — Last Resort Principle
Adoption should be the last recourse for children, and courts must consider a continuum of comprehensive child welfare services including family preservation, kinship care, foster care and institutionalization before granting an adoption order.

Legislation cited (12)

Cases cited (5)

  • In the Matter of David Twesigye (HCMA No. 0004 of 2008)
  • J v C [1970] AC 668
  • Deborah Alitubeera (Civil Appeal No. 70 of 2011)
  • Re AM (Adoption Cause No. 12 of 2017)
  • In Re Ekisa Alice and Bizigo Jamil (Family Cause No. 053 of 2016)

Full judgment

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

In Re_ Hassan Kaaya (child) (Family Cause No. 002 of 2018) [2018] UGHCFD 9 (16 October 2018)
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.