Before, natural birth was seen to be the only true way to raise a child but today, there are numerous ways a couple or individual can raise a child and one of them is Adoption of a child.
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Laws Governing Adoption in Nigeria
- The 1999 Constitution
- The Child’s Right Act
- The Eastern Nigeria Adoption Law, 1965
- The Adoption Law of Lagos State
The Child’s Right Act
This is an Act of the National Assembly but for it to be applicable in different states in Nigeria, it needs to be domesticated by each State.
Section 125 – 145 of the Child’s Right Act provides for Adoption in general.
Section 125 provides for the creation of adoption services with the states of Nigeria.
What is Adoption?
Adoption is the legal process in which a child’s legal rights and duties towards its natural parents are terminated and substituting similar rights and duties to its adoptive parents.
Who May Adopt?
From the provisions of Section 129 the Child Rights Act, 2003;
The following persons may apply for an adoption order‐
(a) a married couple where‐
(i) each of them has attained the age of twenty‐five years, and
(ii) there is an order authorising them jointly to adopt a child; or
(b) a married person if he has obtained consent of his spouse, as required under section 132 of this Act; or
(c) a single person, if he has attained the age of thirty‐five years, provided that the child to be adopted is of the same sex as the person adopting; or
(d) in all cases specified in paragraphs (a), (b) and (c) of this section, the adopter or adopters shall be persons found to be suitable to adopt the child in question by the appropriate investigating officers.
From the above section, only persons who are adults of not less than 25 years can adopt a child. While married couples can adopt a child of either sex, an unmarried person who wishes to adopt a child can only adopt a child of the same sex as him or her.
Who May Be Adopted?
Section 128 of the Child’s Right Act made provisions for this;
The Court shall, not make an adoption order in respect of a child unless‐
(a) the parents of the child or, where there is no surviving parent, the guardian of the child consents to the adoption; or
(b) the child is abandoned neglected or persistently abused or ill treated, and there are compelling reasons in the interest of the child why he should be adopted.
Not all persons are eligible for adoption, only a juvenile can be adopted as Section 277 of the Act defines a child as a person under the age of eighteen years. A juvenile is a person below the age of 17.
Adoption Procedure in Practice
An application is usually made to the court in a prescribed form accompanied by relevant documents. (In practice, the application to the court cannot be made by the adopter on his own without first obtaining the consent of the government welfare agency or department.)
Section 126 of the Child’s Right Act lays down Adoption procedures;
(1) An application for adoption shall be made to the Court in such form as may be prescribed, and shall be accompanied with‐
(a) where the applicant is a married couple, their marriage certificate or a sworn declaration of marriage;
(b) the birth certificate or sworn declaration of age of each applicant;
(c) two passport photographs of each applicant ;
(d) a medical certificate of the fitness of the applicant from a Government hospital; and
(e) such other documents, requirements and information as the Court may require for the purposes of the adoption.
(2) On receipt of an application under subsection (i) of this section, the Court shall order an investigation to be conducted by‐
(a) a child development officers;
(b) a supervision officer; and
(c) such other persons as the Court may determine, to enable the Court to assess the suitability of the applicant as an adopter and of the child to be adopted.
(3) The Court shall, in reaching a decision relating to the adoption of a child, have regard to all the circumstances, first consideration being given to‐
(a) the need to safeguard and promote the welfare and the best interest of the child throughout the childhood of that child; and
(b) ascertaining, as far as practicable, the wishes and feelings of the child regarding the decision and giving due consideration to those wishes and feelings, having regard to the age and understanding of the child.
Once the court is satisfied with the application and the relevant documents, the court will order for an investigation into the applicant, so as to assess the suitability of the applicant as an adopter. The investigation is usually by a Social Welfare officer, Supervision Officer and any other persons as the Court may determine.
Guardian ad litem
A guardian ad litem is a unique type of guardian in a relationship that has been created by a court order only for the duration of a legal action. They are special representative for infants, minors and mentally incompetent persons all of whom generally need help protecting their rights in court.
A guardian ad litem may be appointed by the court for the juvenile to represent him or her in the adoption proceeding. The guardian ad litem investigates the circumstances relevant to the proposed adoption and reports in writing to the court. The guardian ad litem is usually either the welfare officer in charge of the area where the juvenile resides or a probation officer or some other person suitably qualified in the opinion of the court.
The juvenile must have continuously been in the care and custody of the applicant for at least 3 months immediately preceding an adoption order. The welfare officer makes a confidential report after several visits to the applicant and being satisfied of mutual compatibility between the juvenile and adopter during the three months.
Where a positive report is given to the court and the court is satisfied, the court will then make an adoption order. The entire adoption proceeding and outcome is entered into the adoption register.
Jurisdiction is the power of a court to try or hear a matter. Section 162 of the Child’s Right Act vests the Family Court with Exclusive Jurisdiction in any matter relating to children as are specified in the Act.
It also seemed to divide Family Court into two parts;
Family Court at the High Court Level
Section 152 of the Child’s Right Act provides for a Family Court at a High Court of a State level. Sub section 4 of the same section, provides for the powers of the Family Court at the High Court level;
(4) The Court at the High Court level shall have power to‐
(a) deal with all matters relating to the enforcement of the rights of the child as set out in this Act on the application for redress by a child who alleges that a right has been, is being, or is likely to be infringed in respect of him;
(b) deal with all offences punishable with‐
(i) death, or
(ii) terms of imprisonment for a term of ten years and above;
(c) deal with other matters relating to a child where the claim involves an amount of fifty thousand Naira and above;
(d) deal with divorce and custody of the child; and
(e) hear appeals from the Court at the Magisterial level.
Family Court at the Magistrate Court Level
Section 153 of the Child’s Right Act made provision for a Family Court at a Magistrate Court level and its powers are provided under sub section 4 of the same section;
“The Court at the Magisterial level has power to try offences and deal with all matters not specifically assigned to the Court at the High Court level under Section l52 of this Act.”
This simply means that anything not covered by the power expressly given to the Family Court at the High Court level shall be handled by the Family Court at the Magistrate Court level.
In conclusion, the process of adoption begins with identifying the child to be adopted. The process of adoption differs somewhat from state to state in Nigeria, as such, it is important for prospective applicants to look at the specific provisions of the laws that govern adoption in the state of choice.
The services of a legal practitioner can be engaged to facilitate the adoption process.
Written By Efemena Ighorimoto