Wakilii

Re In The Matter Of Samuel Lokwayi (child) (Family Cause No. 207 of 2010)

High Court · [2010] UGHC 83 · 2010 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for appointment as adoptive parents and, in the alternative, legal guardians of an 11-year-old orphan
Decision
Guardianship order granted in lieu of adoption; applicants permitted to pursue adoption in the USA

Observed later treatment

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Holding

Court granted legal guardianship rather than adoption where American applicants did not satisfy the three-year custody and 36-month fostering requirements under Children Act s.46(1). Held that guardianship order serves the child's best interests where he is a double orphan living in poverty and insecure conditions, and applicants have demonstrated capacity and willingness to care for him. Court permitted applicants to pursue adoption in the USA and directed annual reporting to the High Court.

Outcome

Guardianship order granted in lieu of adoption; applicants permitted to pursue adoption in the USA

Facts

The applicants, Michael Mylius and Angela Mylius, American citizens resident in Texas, sought to adopt Samuel Lokwayi, an 11-year-old Ugandan child. Samuel is a double orphan whose parents died of tuberculosis and alcohol abuse. He lives with his elder brother Tom Moro in a mud and wattle hut on no-man's land beneath high voltage power lines in Naminya, Buikwe District. The brother is a labourer with no reliable income or permanent home. The family is internally displaced, having fled cattle rustling in Karamoja. Samuel could not attend school until age 11 due to poverty. The applicants have sponsored his education through Tabernacle Church since early 2000 and now wish to formalize their relationship. They are married with three biological children aged 17-23, and the first applicant is vice president of Del Packaging Limited while the second is a trained teacher. The applicants do not meet the three-year custody and 36-month fostering requirements for adoption under the Children Act.

Issues

  1. Whether the application is for the welfare and benefit of the child.
  2. Whether the applicants are suitable guardians for the child.

Orders

  • The applicants, Michael Mylius and Angela Mylius, are appointed legal guardians of the child Samuel Lokwayi.
  • The applicants are directed to register the order with the Registrar of Documents, Uganda Registration Services Bureau Ministry of Justice and Constitutional Affairs Kampala.
  • The applicants are directed to obtain a Ugandan passport for the child and renew it from time to time as required by the law.
  • The applicants are permitted to travel out of Uganda with the child in order to be able to discharge their parental rights and obligations.
  • The applicants are permitted to adopt the child in the USA, so that they can be able to fix his residence permanently so that he can have access to the benefits that accrue to biological and adoptive children of US citizens.
  • The applicants are directed to register the order with the authority responsible for family and children welfare in Houston Texas, USA and file a report once every year to the Registrar Family Division, High Court Kampala, regarding the state of the welfare and development of the child until the child is 18 years of age or until directed otherwise.
  • No order as to costs.

Rules and key headnotes

Family Law — Guardianship — Statutory Requirements for Adoption — Waiver in Best Interests of Child
Where applicants for adoption do not satisfy the statutory requirements of three years' custody and 36 months' fostering under Children Act s.46(1), a court may grant legal guardianship in the alternative rather than adoption, where guardianship serves the best interests and welfare of the child.
Family Law — Children's Welfare — Paramount Consideration — Best Interests Standard
Under Children Act s.3 and para. 1(b), in dealing with matters concerning children, the court is enjoined to take into consideration the child's welfare and best interests as the paramount consideration.
Family Law — Guardianship — Suitability Assessment — Factors to Consider
In assessing suitability of applicants for guardianship, relevant factors include marital status, employment and financial capacity, existing family structure, criminal record, and willingness to provide a stable family environment, love and care for the child.
Family Law — Guardianship — Cross-Border Guardianship — Ongoing Supervision
Where a Ugandan court grants guardianship to foreign nationals who will reside abroad with the child, the court may impose conditions requiring registration with foreign child welfare authorities and annual reporting to the Ugandan court until the child reaches 18 years of age.
Family Law — Guardianship — Permission for Foreign Adoption — Dual Jurisdiction
A Ugandan court granting guardianship may permit guardians to pursue adoption in their country of residence in order to fix the child's residence permanently and enable the child to access benefits available to biological and adoptive children of citizens of that country.

Legislation cited (12)

Full judgment

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Re_ In The Matter Of Samuel Lokwayi (child) (Family Cause No. 207 of 2010) [2010] UGHC 83 (27 October 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.