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In The Matter of Petitions for the Adoption of AM (child) By Balbina, KJ (child) By Salguero and Berzenkovich(Appellants) (Consolidated Civil Appeals 140 of 2022; Consolidated Civi

Court of Appeal · [2023] UGCA Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal to the Court of Appeal from High Court rulings rejecting adoption petitions
Decision
Appeal dismissed; adoption orders refused

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed a consolidated appeal by Argentine applicants seeking to adopt two abandoned Ugandan children. The court held that under section 46 of the Children's Act as amended, a non-citizen adoptive parent must reside in Uganda and foster the child for at least one year, and this discretion to waive the requirement under section 46(4) is exercised restrictively and only in exceptional circumstances in the best interest of the child. Virtual bonding over video and a 60-day visit, during which the children remained at the babies' home, did not amount to genuine fostering. Covid-19 restrictions and employment obligations did not constitute exceptional circumstances justifying a waiver. The appellants were given an opportunity to be heard through counsel.

Outcome

Appeal dismissed; adoption orders refused

Facts

Two brothers, AM and KJ, were abandoned by their parents at Mujunju I village, Kibito Sub County, Bunyangabu District. After a person named Consolata took custody and tortured them, they were placed at Toro Babies Home in 2018, where they remained, having outgrown the home and never enrolled in formal school. Their father disappeared and their mother, having remarried, consented to their adoption. The appellants, relatives of a volunteer (Emilia) who had worked at the home, sought to adopt the boys and take them to Argentina. Due to Covid-19 travel restrictions, the appellants interacted with the children largely through video platforms and sent maintenance money. They visited Uganda for about 60 days between November and December 2021 but could not remain for the statutory one-year residency and fostering period owing to employment and family obligations in Argentina. The probation officer recommended the adoption but noted the fostering requirement was unmet. The trial judge refused the petitions, prompting this appeal.

Issues

  1. Whether the trial judge erred in declining to waive the requirements of one-year residency in Uganda and one-year fostering under section 46 of the Children's Act as amended.
  2. Whether the appellants qualified to be appointed adoptive parents.
  3. Whether it was in the best interests of the children to grant the adoption orders.
  4. Whether the trial judge denied the appellants a fair hearing.
  5. Whether the appellants had made sufficient attempts to foster and bond with the children.
  6. Whether the trial judge's evaluation of the evidence and refusal to grant adoption was against the weight of the evidence.

Orders

  • The appeal is dismissed.
  • The appellants shall meet the costs of the consolidated appeals.

Rules and key headnotes

Adoption — Inter-country Adoption — One-Year Residency and Fostering Requirements
Under section 46 of the Children's Act as amended, a non-citizen seeking to adopt a Ugandan child must have stayed in Uganda for at least one year and fostered the child for at least one year under the supervision of a probation and social welfare officer.
Adoption — Waiver of Requirements — Exceptional Circumstances
The discretion under section 46(4) of the Children's Act as amended to waive requirements for inter-country adoption is exercised cautiously, on a case-by-case basis, only in very exceptional circumstances, and always in the best interest of the child; an appellate court will interfere with its exercise only to prevent a manifest miscarriage of justice.
Adoption — Nature and Purpose of Fostering — Virtual Contact Insufficient
Fostering requires a genuine home environment allowing the applicant and child to learn each other's cultures and develop emotional bonds; bonding through video platforms and a brief visit during which the child remains in institutional care does not satisfy the fostering requirement.
Children — Welfare Principle — Best Interests of the Child
The welfare of the child is the paramount consideration in every decision concerning a child, including an adoption order, and must be read in its largest sense taking into account all relevant circumstances.
Right to be Heard — Representation by Counsel — Failure to Utilise Opportunity
The right to be heard does not require a party to be heard in person; representation by counsel suffices, and where a party is given a reasonable opportunity of being heard but does not utilise it, there is no denial of natural justice.
First Appeal — Duty of First Appellate Court
A first appellate court has a duty to re-appraise the evidence on record, draw its own inferences of fact, and make up its own mind while giving due weight to the judgment appealed from.

Legislation cited (12)

Cases cited (7)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • In the Matter of Kyakutwika Patrick and Muyaya Jackson (Adoption Cause No. 18 of 2018)
  • Re Muhairwe & In re an Application for Adoption by Birgitte N. Markussen & Han H Philipsen HCT-00-FD-0100-2008
  • Queen vs. Gyngall (1893) QB 232 at 248
  • Pulkeria Nakaggwa vs. Dominiko Kiggundu (H.C.B) 310
  • J vs. C (1970)
  • Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998

Full judgment

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

In The Matter of Petitions for the Adoption of AM (child) By Balbina, KJ (child) By Salguero and Berzenkovich(Appellants) (Consolidated Civil Appeals 140 of 2022; Consolidated Civi
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.