Wakilii

In The Matter of An Application for Adoption of Mbasan(Minor) by Mbasan and Another (Adoption Cause 44 of 2023)

High Court · [2023] UGHCFD 111 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance adoption petition under the Children (Amendment) Act 2016
Decision
Adoption order granted; petitioners appointed adoptive parents with exclusive parental rights and responsibilities

Observed later treatment

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Holding

The High Court granted an inter-country adoption order in favour of a married couple (one Ugandan permanent resident of the USA and one US citizen) to adopt a 15-year-old Ugandan boy who had been abandoned by his biological mother and fostered by the petitioners since 2015. The court held that the petitioners satisfied all statutory requirements under the Children Act including age, marriage, fostering period, criminal clearance, home study approval, and consent. The court further held that the adoption was in the child's best interest, applying the welfare principle as paramount, and considering the child's ascertainable wishes, his need for parental care, and the petitioners' financial and emotional capacity to provide a stable home.

Outcome

Adoption order granted; petitioners appointed adoptive parents with exclusive parental rights and responsibilities

Facts

Brian Mbasan, a 15-year-old Ugandan boy, was abandoned by his biological mother at his grandmother's home when he was six months old. His biological mother never returned and all efforts to trace her, including newspaper advertisements and a missing person's report, were unsuccessful. The child's biological father was unable to care for him. The first petitioner, Robert Matthan Mbasan, is the child's paternal uncle. The petitioners, a married couple (Robert, a Ugandan and US permanent resident, and Erica, a US citizen), married in Uganda in 2015 and have fostered the child since then, providing for his education and basic needs. They have three biological children and a combined annual income of USD 200,000. The child's paternal grandmother, who had been caring for him, consented to the adoption as she was no longer able to care for him. The child also consented to the adoption. The petitioners underwent home study assessment in the USA, obtained criminal clearance, completed adoption training, and received approval from the Alternative Care Panel on 28 July 2023.

Issues

  1. Whether the Petitioners qualify to be appointed the adoptive parents of the child?
  2. Whether the petition is in the best interest of the child?

Orders

  • The Petitioners Robert Matthan Mbasan and Erica Lyn Mbasan are hereby appointed the adoptive parents of the child Brian Mbasan.
  • The parental rights of all others in respect to the child Brian Mbasan not previously terminated, are hereby terminated.
  • The Petitioners Robert Matthan Mbasan and Erica Lyn Mbasan shall have exclusive care, custody and control of the child, Brian Mbasan free from claims or hindrances of all others, and shall be held responsible for his maintenance, education and support.
  • The Registrar General of Births and Deaths is hereby directed to make an entry recording this adoption in the Adopted Children Register.
  • This Adoption Order shall be furnished to Consular Department in the Ministry of Foreign Affairs.
  • Costs of this petition shall be met by the Petitioners.

Rules and key headnotes

Family Law — Adoption — Inter-Country Adoption — Statutory Requirements
For inter-country adoption under the Children Act, where either the child or applicant is not a Ugandan citizen, the application must be made to the High Court and the non-citizen applicant must satisfy exceptional circumstances including having stayed in Uganda for at least one year, fostered the child for at least one year under supervision of a Probation and Social Welfare Officer, have no criminal record, have a recommendation from their country's competent authority, and satisfy the court that their country of origin will respect and recognize the adoption order.
Family Law — Adoption — Age Requirements
An adoption order may be granted to a sole applicant or jointly to spouses where the applicant or at least one of the applicants has attained the age of twenty-five years and is at least twenty-one years older than the child.
Family Law — Adoption — Consent Requirements — Dispensation
While the consent of the parents of the child is necessary for an adoption order to be made, the court is empowered to dispense with the consent required if the person is incapable of giving it.
Family Law — Adoption — Best Interest of the Child — Welfare Principle
The welfare of the child is of paramount consideration in adoption proceedings and must be considered in the widest sense, including the child's moral, religious, and physical wellbeing, as well as ties of affection, and not measured by money or physical comfort only.
Family Law — Adoption — Child's Wishes — Ascertainable Wishes
In considering the child's best interest in adoption proceedings, the court must give due consideration to the ascertainable wishes of the child having regard to the child's age and understanding, and such wishes constitute a weighty factor in determining whether an adoption order should be made.
Family Law — Adoption — Inter-Country Adoption — Last Resort Principle
Inter-country adoption shall be the last option available to orphaned, abandoned or legally relinquished children, along a continuum of comprehensive child welfare services.

Legislation cited (16)

Cases cited (4)

  • Ayat Joy v Genevive Chenekan Obonyo & Another (Adoption Cause No. 052 of 2002)
  • Re Mcgrath (infants) 1893 Ch 143 at 148
  • Nakaggwa v Kigundu (1978) HCB 310
  • Re D (Minors) (1981) F.L,R 102

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 of Mbasan(Minor) by Mbasan and Another (Adoption Cause 44 of 2023) [2023] UGHCFD 111 (22 September 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.