Wakilii

Re In The Matter Of ALex Malik Hodgkins (an infant) (Family Cause No. 139 of 2010)

High Court · [2010] UGHC 96 · 2010 Adoption Order Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for adoption order by non-citizen petitioners
Decision
Petitioners appointed as adoptive parents with full parental rights and permitted to travel out of Uganda with the child

Observed later treatment

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Holding

Held that the residence and fostering requirements in section 46 of the Children Act are directory, not mandatory, and may be waived in exceptional circumstances where the welfare of the child is paramount. The court granted adoption to non-citizen petitioners who could not remain in Uganda due to their biological son's medical condition, finding that the abandoned infant had no known relatives and would benefit from adoption including access to medical insurance.

Outcome

Petitioners appointed as adoptive parents with full parental rights and permitted to travel out of Uganda with the child

Facts

The child Alex Malik Hodgkins, aged one year and five months, was abandoned at Bugembe in Jinja District. The matter was reported to the Probation and Social Welfare Officer who requested Welcome Home Ministries to take custody of the child. Welcome Home Ministries was granted a Care Order on 18 June 2009. A photograph of the infant was advertised in the New Vision newspaper on 14 September 2009 to trace relatives, but no one came forward. The petitioners, Franklin Guillaume and Denise Jo-Anne Guillaume, are Canadian citizens aged 30 and 35 years respectively and married. They were previously granted a Guardianship Order over the child. They applied for adoption but could not fulfill the three-year residence and 36-month fostering requirements under section 46 of the Children Act because their biological son Rhys Guillaume has a delicate medical condition requiring specialized medication only available in Canada. The petitioners have no criminal record and were recommended as suitable adoptive parents by authorities in Canada.

Issues

  1. Whether non-citizen petitioners who have neither resided in Uganda for three years nor fostered the child for 36 months can be granted an adoption order.
  2. Whether exceptional circumstances exist to justify waiving the residence and fostering requirements under section 46 of the Children Act.
  3. Whether the adoption is in the best interests of the child.

Orders

  • The petitioners Franklin Guillaume and Denise Jo-Anne Guillaume are appointed the adoptive parents of the child Alex Malik Hodgkins with full parental rights and responsibilities.
  • The petitioners are directed to register the order with the Registrar of Documents, Uganda Registration Services Bureau, Ministry of Justice and Constitutional Affairs, Kampala.
  • The petitioners are directed to register the order with the Canadian Embassy in Uganda and the Ugandan Embassy in Ottawa.
  • The petitioners are permitted to travel out of Uganda with the child.
  • The petitioners are directed to register the order with the authority responsible for family and children welfare in Edmonton, Alberta and to file a report once every year regarding the welfare and development of the child to the Registrar, Family Division, High Court at Kampala, until the child is 18 years of age or until directed otherwise.
  • No order as to costs.

Rules and key headnotes

Adoption — Non-citizen Adopters — Residence and Fostering Requirements — Waiver in Exceptional Circumstances
The residence and fostering requirements under section 46 of the Children Act that a non-citizen must have resided in Uganda for at least three years and fostered the child for at least 36 months are directory and not mandatory, and may be waived by the court in exceptional circumstances where it is in the best interests and welfare of the child.
Adoption — Best Interests of the Child — Paramount Consideration
In all matters affecting children, including adoption applications, the best interests and welfare of the child are the paramount consideration, and an adoption order may not be refused where the refusal would be evidently contrary to the welfare principle.
Children Act — Directory versus Mandatory Provisions — Section 46
The conditions in section 46 of the Children Act governing adoption by non-citizens are directory and not mandatory, and the court must examine each case on its own circumstances to determine whether to grant an adoption order based on the welfare of the child.
Adoption — Exceptional Circumstances — Medical Necessity and Abandoned Child
Exceptional circumstances justifying waiver of residence and fostering requirements include situations where the adoptive parents cannot reside in Uganda due to a biological child's serious medical condition requiring treatment unavailable in Uganda, where the child to be adopted is abandoned with no known relatives, and where adoption would provide material benefits such as access to medical insurance.

Legislation cited (4)

Cases cited (5)

  • In the Matter of Mukisa Joseph and Nambi Daisy (Adoption Cause No. 145 of 2009)
  • In the Matter of M (Civil Appeal No. 22 of 1994)
  • In the Matter of Namakula Florence (Family Cause No. 81 of 2010)
  • In the Matter of Paula Robertson and Cynthia June Robertson (Adoption Cause No. 31 of 2004)
  • In the Matter of Michelin and Thomas Nikundiwe (Adoption Cause No. 5 of 2004)

Full judgment

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

Re_ In The Matter Of ALex Malik Hodgkins (an infant) (Family Cause No. 139 of 2010) [2010] UGHC 96 (30 July 2010)
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.