FAMILY LAW 2.9 ADOPTION
The Area is very scattered as the laws differ from territory to territory.
Adoption is the process whereby the legal relationship between a child and his biological parents is severed and re-established between the child and his adoptive parents (third parties). Where people assume the position of parents in respect of a person who is not their biological child.
Adoption was not recognised at common law. Eastern Nigeria promulgated its adoption law in 1965, Lagos followed suit in 1968 other states subsequently fell in line.
Adoption ensures that children are brought up in proper homes.
Section 125 of the Child Rights Act, mandates every state to have its adoption law. Part XII (Section 125-148) of the Child Rights Act regulates the adoption procedure.
Who can be adopted?
Generally, the adoption laws provide that the person to be adopted must be a juvenile (not older than 17/18 years depending on the relevant law in question). Under Section 1 of the Lagos Adoption Law 1968 the age is 17.
Section 1 of the Adoption Law of Lagos State and Bendel State further provide that the juvenile must be abandoned or whose parents and relatives cannot be traced after due enquiries by the juvenile court. The Lagos Law also provides that parents of a child below 1 year can wilfully put him up for adoption. HOWEVER, In Anambra (Section 3 of the law), Imo and Rivers, the applicant may be the father or mother and adoption order may be made whether the parents are known or unknown.
Oyo state requires that the child must be single (not have been married). Other States’ Laws are silent on this.
Section 128 of the Child Rights Act provides that the child must either be abandoned, neglected or persistently ill-treated.
Who may adopt?
Section 3 of the Lagos State Law and Section 131 of the Child Rights Act (and various enactments) require that the person who seeks to adopt must be at least 21 years older than the child to be adopted. In addition, where it is a couple that seeks to adopt, they must be at least 25years old or 35 years if it is a single person. (In Anambra, an exception is made for the father or mother of the child or a relative who is up to 21 years).
In Anambra, Imo and Rivers State, the father or mother of the child may also apply to adopt the child.
***Where the person that seeks to adopt is single, he can only adopt a person of the same sex. I.e. a single man cannot adopt a female… unless in exceptional circumstances-Section 132 Child Rights Act.
***He needs to be physically, financially and morally fit and proper.
*** The applicant should be a person of good repute and character.
The adopter and adoptee must be citizens of Nigeria resident in the same state- Section 131 of the Child Rights Act and various adoption laws.
In addition to the aforementioned requirement on who may adopt and be adopted the following are required:
-Where the parents of the child (or any other person with rights of obligations towards a child) can be traced, their consent should be sought- Section 128 of the Child Rights Act… also Section 5 of the Eastern Adoption Law. Such consent can be granted through a next friend if the parents are insane. Some other States’ law (like Cross-River’s) did not provide for parental consent.
-Foreigners cannot adopt except the court is satisfied that they are fit and proper (after due investigation).
THE EFFECTS OF ADOPTION.
- Severs and extinguishes all parental rights and obligation of the biological parents and divests it to the adoptive parents. Section 41 Child Rights Act, entitles the child to all rights of a legitimate child from his adoptive parents. Like custody, maintenance, education, and so on just like the biological child.
- An adopted child takes up the surname of his adoptive parents.
- A relationship of consanguinity is created. Therefore, no intermarriages between the adopter and the adopted child.
- Once made, an adoption is irrevocable except consent had been induced by fraud or undue influence.
- The adoptive parent cannot put the child up for adoption.
In Anambra, Imo, Rivers, and Oyo states, the jurisdiction is vested in the High court. While in Lagos, Bendel and Ogun state, jurisdiction is vested in the juvenile court. See Section 8 Lagos State Adoption Law.
The court is expected to educate the parties on nature and effects of adoption. All is done in the best interest of the child.
ADOPTION UNDER CUSTOMARY LAW
Differs from what obtains under statute. It is less formal and (unlike under statute) does not permanently extinguish the biological parent’s right because a child can never be cut from his root. As such, adoption under customary law can be likened to the English notion of foster parentage.
Most cases of adoption under customary law are usually between blood relatives. Adoption usually occurs where a child is orphaned or the parents are too poor to take care of him.
The case of Re Martins, highlighted the process… 1. A meeting (of the families and elders concerned) is convened. 2. The adopter nominates the adoptee. 3. Parental rights and obligations are transferred (but not severed) from the parents to the adopter. 4. The process is over.
An infant or even an adult may be adopted however, a married woman is seldom adopted.
In some parts of Igbo land, a divorced or widowed woman who has remarried may (with the consent of her new husband) bring the child of the earlier marriage, the child takes the step-father’s name and is brought up by him, with time the relationship matures into adoption.
ADOPTION UNDER ISLAMIC LAW.
From the interpretation of Chapter 33 verse 4 of the Holy Quran and the writings of Islamic scholars, there is no stricto sensu adoption under Islam. Though adoption is not possible, guardianship (kafala) can be accepted. The child must continue to bear his natural father’s name. The child cannot inherit from the guardian.
Guardianship can be voluntarily undertaken by a sane and responsible adult in respect of a child who is orphaned or cannot be taken care of by his natural parents.