Wakilii

In the matter of an application for adoption by Stefani and Zinko (Adoption Cause 65 of 2022)

High Court · [2023] UGHCFD 84 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for adoption order by foreign nationals under the Children Act
Decision
Adoption application dismissed; children remain under existing care arrangements

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Holding

The High Court dismissed an adoption application by Slovenian nationals who sought to adopt two Ugandan children. The court held that the petitioners failed to satisfy statutory requirements under the Children Act for inter-country adoption. Specifically, the petitioners did not prove they were legally married under Ugandan law, failed to provide valid birth certificates issued by the National Identification and Registration Authority, did not provide police and Interpol clearance from Uganda, and did not physically foster the children in Uganda for the required twelve months under probation supervision. The court rejected the concept of constructive fostering through electronic contact.

Outcome

Adoption application dismissed; children remain under existing care arrangements

Facts

Martin Stefani and Brigita Zinko, a Slovenian couple, sought to adopt two Ugandan children, Sharon Tahakanisibwa aged 6 and Norah Akandekaho aged 7. The children had been abandoned by their biological mothers and were being cared for by Mable Mirembe in Kiruhura District. When Mirembe became too weak to care for them, the children were moved to Iganga where the petitioners met them during charitable work. The petitioners obtained foster orders in May 2021. The biological fathers consented to the adoption. The petitioners were Slovenian citizens employed in Slovenia with two biological children. They presented documentation including passports, employment proof, DNA profiling reports confirming paternity, foster orders, probation reports, and consent from biological parents. However, they did not provide a marriage certificate recognised under Ugandan law, valid birth certificates from the National Identification and Registration Authority, or police clearance from Uganda and Interpol. The petitioners admitted they never stayed physically with the children for at least one month continuously and proposed to maintain contact electronically.

Issues

  1. Whether the petitioners qualify to be appointed adoptive parents of the children.
  2. Whether it is in the best interests of the children to grant the adoption.

Orders

  • Petition dismissed.
  • Petitioners to meet the costs of the petition.

Rules and key headnotes

Inter-country Adoption — Proof of Marriage — Recognition of Foreign Cohabitation Arrangements
For purposes of joint adoption applications under section 45 of the Children Act, a couple means persons married under the various forms of marriage recognised under Ugandan law, namely marriage under the Marriage Act, the Customary Marriages Act, the Mohamedan Act, or the Hindu Marriage and Divorce Act. Even if cohabitation is equal to marriage in the petitioners' country of origin, persons who are cohabiting cannot be considered a couple for purposes of section 45 of the Children Act.
Birth Registration — Recognition of Birth Certificates — Statutory Authority
Under the Registration of Persons Act 2015, only the National Identification and Registration Authority has the function to register births and deaths. Birth certificates purportedly issued by district councils are not recognised as valid birth certificates if not issued by the National Identification and Registration Authority, and ages of children cannot be determined without valid birth certificates for purposes of adoption proceedings.
Inter-country Adoption — Criminal Record Clearance — Requirement for Uganda Police and Interpol Clearance
In inter-country adoption proceedings where petitioners' suitability must meet global security requirements, clearance by both Interpol and Uganda Police is required. Having no criminal record in the petitioner's country of origin does not establish that crime has not been committed elsewhere in the world or in Uganda during the petitioner's time fostering a child. This is the reason why clearance expires after six months and should cover the period the petitioner is in Uganda complying with the twelve-month stay and fostering requirements.
Inter-country Adoption — Fostering Requirement — Physical Presence and Supervision
The requirement under section 46(1)(b) of the Children Act that a foreign national foster a child for at least twelve months under the supervision of a probation and social welfare officer requires physical presence with the child for most of the required time. Constructive fostering through electronic contact and technology does not satisfy the statutory requirement. A parent or anyone taking on parental duties under supervision should be physically present at least for most of the required time unless the child's life is in danger requiring urgent intervention.
Inter-country Adoption — Definition of Foster Parent — Physical Care Requirements
Foster parent is defined under section 1(j) of the Children Act as a person who assumes parental responsibility of a child by way of a care order. Fostering means to give parental care and to promote the growth and development of a child. A child cannot be raised through technology, as technology has time limits and cannot be monitored or supervised by a probation officer, and may be stage-managed. Physical presence is inherent in the concept of fostering.
Children Act — Court's Power to Waive Requirements — Best Interests of the Child
While the court has power under section 46(4) of the Children Act to waive any requirements under subsection (1), the welfare of children being the guiding principle under section 3 of the Children Act, the court should never waive requirements in a manner that puts children's lives at risk or is driven by the petitioner's convenience. Child-based cases are driven by the children's best interests and nothing else.

Legislation cited (13)

Cases cited (1)

  • In the matter of Innocent Turyahabwe (Adoption Cause No. 10 of 2017)

Full judgment

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

In the matter of an application for adoption by Stefani and Zinko (Adoption Cause 65 of 2022) [2023] UGHCFD 84 (19 June 2023)
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.