Adoption of Children in Nigeria: Practice and Procedure

ADOPTION OF CHILDREN

IN NIGERIA

PRACTICE AND PROCEDURE

OJOCHIDE ATOJOKO-OMOVBUDE

AuthorHouse™

1663 Liberty Drive

Bloomington, IN 47403

www.authorhouse.com

Phone: 1-800-839-8640

© 2011 by OJOCHIDE ATOJOKO-OMOVBUDE All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

First published by AuthorHouse 11/28/2011

ISBN: 978-1-4567-8215-3 (sc)

ISBN: 978-1-4567-8625-0 (ebk)

Printed in the United States of America

Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.

Certain stock imagery © Thinkstock.

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

Contents

FOREWORD

DEDICATION

ACKNOWLEDGEMENT

PREFACE

CHAPTER ONE

CHAPTER TWO

CHAPTER THREE

CHAPTER FOUR

CHAPTER FIVE

CHAPTER SIX

CHAPTER SEVEN

CHAPTER EIGHT

CHAPTER NINE

CHAPTER TEN

CHAPTER ELEVEN

CHAPTER TWELVE

CHAPTER THIRTEEN

SCOPE OF THE CONVENTION

REQUIREMENTS FOR INTER-COUNTRY ADOPTIONS

CENTRAL AUTHORITIES AND ACCREDITED BODIES

PROCEDURAL REQUIREMENTS IN INTER-COUNTRY ADOPTION

RECOGNITION AND EFFECTS OF THE ADOPTION

GENERAL PROVISIONS

FINAL CLAUSES

BIBLIOGRAPHY

FOREWORD

I feel greatly honoured to have been offered the privilege of writing a short introductory statement to this detailed, thoroughly researched, illuminating and rare masterpiece titled, ADOPTION OF CHILDREN IN NIGERIA, (PRACTICE AND PROCEDURE) by Ojochide Atojoko- Omovbude.

The author who was first introduced to me by her then Learned Senior, in Chambers, during their appearance in a case pending before the High Court of Federal Capital Territory presided over by me, when l was a Judge of the said High Court, was called to the Nigerian Bar in the year 2004. She did a stint in the private legal practice, after which, she ventured into working in the Embassy of Belgium. After a while, and, still having an intuitive sense of what her destiny had in stock for her, with an unmatched record of astuteness and academic prowess, Chide Atojoko, resuscitated her private legal practice, and at the same time, re-invented herself as a writer, with great passion for Law Books. She kept abreast of the global phenomena in Parents/Children’s relationship that is now, shifting its focus from ‘MOTHERHOOD TO PARENTHOOD’ which then spurred her to cultivating this virgin area, where renowned authors of Family Law Books had never dared to explore. The result being this brilliant and well articulated printed work that is, unarguably and undoubtedly, an authoritative guide to adoption process in Nigeria.

As could be gleaned from this incisive Book, it is divided into thirteen Chapters that dealt extensively with all facets of adoption process. It should, however, be reminded that children are Flowers sown by the Almighty, and from eternity, He had designated their respective abodes which manifests only, after their birth. This explicates why a mother, through whom, a child was navigated into the universe, may, for flimsy or unexplainable excuses, give him or her up for adoption by another. As the author rightly stated, it is the welfare and best interest of a child that are mandatorily paramount in any consideration by the court pertaining to custody or adoption of a child. As she explained, there is no unified Law or system of adoption in Nigeria.

Chapter one, in a nutshell, gives a fascinating insight into what custody of a child, being a foster parent or a guardian to a child connotes or entails and the indispensable factors that influence the Court’s decisions in her award of such rights to any person. Chapter two bares the term ‘adoption’ in it’s simplest form and how it is tolerated by various groups in Nigeria that are governed by a conglomeration of laws, i.e. customary, Islamic and legal. Chapters three, four, five, six and seven exhibit an in-depth coverage of the topic. They expose the reader to the evolution of the various Adoption laws in Nigeria, various forms of adoption, the person or persons qualified to adopt a child, whose consent is needed and the adoptables. The rest Chapters pertain to the procedure, the jurisdiction of the various Courts in adoption matters, the orders they could hand down, the consequences of adoption, inter-country adoption and prohibitions in adoption procedure. I must observe that the author’s input and exactitude in this masterpiece are amazing and unimaginable. She must, therefore, be commended in every possible term. She was not rhetorical but was particular with her choice of words. I would, therefore, not hesitate to recommend this Book to all legal practitioners, law students, Family law lectures, law institutions, those wishing to adopt, Courts of law, etc. As you read this Book, I’m confident your knowledge of adoption process in Nigeria will greatly be enriched.

Hon. Justice Theresa Ngolika Orji-Abadua

Justice of Court of Appeal.

9th November, 2011.

DEDICATION

For my grand-mother Aminetu Musa, a woman of love and great devotion

ACKNOWLEDGEMENT

My appreciation goes to God almighty for the chance to live. Special thanks to my father Umaru Saba Atojoko who had the first draft and took time to read and correct it, I also thank my mother Ufeli Hannah Atojoko who chose to give me more time to do this work by looking after my daughters Odion and Akhere who are my driving force to succeed. And to my wonderful husband Felix Omovbude for his love and support.

Writing this book would not have been possible without the help of my colleagues at S.E. Aruwa & Co who encouraged me to write on this topic and who also individually took time to proof read and correct the work.

I also thank my publishers at Author-house who took the pains to fine tune my work and bring out this beautiful book to behold.

PREFACE

The law of adoption in Nigeria is not uniform in the sense that there are 36 states and the Federal capital territory comprising the Nigerian nation. There are also varying laws for individual States in terms of adoption. Some States ironically do not even have adoption laws as a result of religious sentiments prevailing in such areas of the country.

The adoption laws in Nigeria are very inadequate and scarce. Finding guiding principles and practices on adoption in Nigeria can be quite tasking and frustrating making the process of adoption very tiring and unending for the person wanting to adopt. As a result of the sentiments attached to adoption it makes it all the more abhorred by some and even considered a taboo by some others.

The original concept of adoption from the early times was providing a child for the comfort of a childless couple or for continuity of a lineage devoid of male offspring, generally speaking for procreation. But recently there has being a shift in the right direction which is for the welfare and in the best interest of the child and not of the adoptive parents. In as much as it should often be a win—win situation, the paramount reason now is for the best interest of the minor concerned.

The book deals richly on the various requirements for an adoption procedure in Nigeria with a little comparative work on adoption laws of Lagos, Enugu and the Federal Capital Territory. It will serve as guide for parents intending to adopt a child as well as lawyers and social workers who will need necessary guidance on documents to present for an adoption procedure.

CHAPTER ONE

INTRODUCTION.

The outstanding development in the modern law of parent and child is the transformation of parental power into parental care and responsibilities. Side by side with this had developed the principle that the welfare of children is the paramount consideration, which means that in any adjudication in respect of children, courts are primarily and essentially concerned with the welfare of the child. In modern law the protection of the interest of the child has become the fundamental policy of law, though it cannot be said that the development of the policy of laws has been uniform in all systems of law.¹

As a result of this, every state, and every country has come to the knowledge and understanding that the young children are going to become the adults of tomorrow and custodians of the world. To this end it has become necessary to inculcate in these children norms that will help them preserve the future for others coming after them. There is no other way of achieving this than by seeking out the welfare of the children early in life. This includes divesting of a biological parental right where that will be of greater benefit for the child. There is now paradigms shift from the preservation of family to more of the preservation of the person of a child or minor as the case may be.

With the obligation of looking out for the welfare and education of the child, parents are also liable for the criminal misconduct of their children in the sense that such could have been prevented if such child had not been neglected and deprived of the basic necessities of life.

The principle of the welfare of the child was originally a chancery decision in England. But under the modern English law, it is applied by a multiple of judicial and quasi judicial tribunals.² It has now become a recognized principle of law in the whole world and in all countries of the common wealth including Nigeria.

Adoption in Nigeria is a very sensitive issue especially in the light of child trafficking which is very common within and outside of the country. The social welfare office, one of whose main concern is with adoption, custody and guardianship of minors in Nigeria is very cautious as regards the adoption of the child as it scrutinizes to the utmost, the main intent of an applicant for adoption.³

1.1 CUSTODY OF CHILDREN

For a very long time, people confuse custody with guardianship. This is simply incorrect as the two are very different terms. A person can be in custody of a minor and yet not be a guardian to the minor and be a guardian, yet not in custody of the child. Although for most times being in custody of a child puts one in guardianship position for that period of time that such child is in custody of the person. We must note that custody cannot split from guardianship but guardianship can stand aloof of custody.

In Nigeria custody of a minor often lies with the mother of the child who is considered the most appropriate person to look after the child physically, yet on the other hand, the father of the minor is often the guardian of such child and is responsible for the general welfare of the minor in terms of financial and moral obligations to the minor.

According to Nnaemeka Agu J.C.A (as he then was) at the court of appeal case of Williams v Williams⁴ he held that;

the custody of a child essentially concerns not only the control of the child but also carries with the necessary implications of the preservation and care of the child’s person, physically, mentally and morally.

There is a thin line between adoption, guardianship and foster parenting. All of these have in common the concept of custody of children. The Matrimonial Causes Act⁵ made provisions for custody of children in various Sections.

S.71(1) of the Act⁶ states that in proceedings with respect to the custody, guardianship welfare, advancement or education of the children of a marriage, the court shall regard the interest of those children as paramount consideration; and subject thereto, the court may make such order in respect of the matters as it thinks proper.

The Act goes further in subsection (3) that a court may grant custody to a person other than a parent of the child if the Court thinks that it will be proper and in the interest of the child to do so. The court is very careful in making orders concerning the placement of children or child of a marriage in the custody of a party to the marriage or of a person other than a party to the marriage. This underscores the importance of the wellbeing of children even where the parents are still living. It is therefore a conclusion not farfetched that adoption law should tilt more in the direction of a child who is taken up by persons who are not related to him.

A person cannot be in custody of a child if he has no legal capacity to do so. The Child Rights Act (C.R.A) 2003⁷ is clear on this when it states that "no person shall remove or take a child out of the custody or protection of his father or mother, guardian or such other person having lawful care or charge of the child against the will of the father, mother guardian or