LifinA LECTURE DELIVERED BY VITALIS C. EZEILO; AT THE LEGAL IDEAS FORUM’S FAMILY LAW SUMMIT, HELD ON THE 26TH DAY OF FEBRUARY
Introduction
To speak of “Adoption” and “Guardianship” without “Parenting” is at best misleading and at worst dangerous as both are subsumed under the umbrella of parenting.
Being the foundation of Adoption and Guardianship, it (parenting) comes with it
concomitant rights, responsibilities and obligations. While the former is tantamount or in the alternative leads to the termination of parental rights, responsibilities and obligations, the later only suspends those rights for a particular period of time.1
Our purpose is to understand the nature of Adoption and Guardianship in Nigeria and as well analyse the process and procedure for the creation of parental responsibilities through such means.2
Who then is a Parent?
The law presumes that where a child is born to a married woman, the husband is deemed to be the father unless and until the contrary is established.3 The paternity or maternity of any child may also be determined by scientific test.4
The essence of knowing who the parents of a child is at any material particular, is to determine the persons, on whom the parental obligations and responsibility for that child under the law lies5 This is why the law in section 68 of the Child’s Right Act, 2003, envisaged circumstances where a child is born to some individuals, who at the time the child was conceived are not married. The law permits either of the parents or both parents to apply to a family court for the parental responsibility of that child.
The law makes it the responsibility of any parent in Section 20 of the Child’s Right Act, 2003, to provide the necessary guidance, discipline, education and training for the child in his or her care such as will equip the child to secure his assimilation, appreciation and observance of the responsibilities set out under the Act.6
For the avoidance of doubt and for precision, we shall now highlight and bring to the fore the provisions of section 20:7
Every parent, guardian, institution, person and authority responsible for the care, maintenance, upbringing, education, training, socialisation, employment and rehabilitation of a child has the duty to provide the necessary guidance, discipline, education and training for the child in his or its care such as will equip the child to secure his assimilation, appreciation and observance of the responsibilities set out in this Part of the Act [Emphasis Mine].
Parental Rights, Obligations and Liability.
The art of parenting comes with concomitant rights, obligations and liability in raising and supporting a child and his actions. The legal concept of parental rights generally refers to a parent’s right to make decisions regarding a child’s education, health care, and religion, right to the service of the child (such as house chores etc…), right to control and chastise the child;8 among other things. If parents are separated or divorce, these rights can extend to custody and visitation. While these rights can be automatic in certain family structures, such as with married parents at the birth of the child, it may be necessary for a parent to petition a court for the rights, as in cases of disputed paternity.
On the other hand, the obligations of either or both parents in raising the child under the law include but not limited to the duty to provide the financial needs of the child, the necessaries of life of a minor,9 duty not to abandon or expose the child in a manner that is likely to cause him grievous harm,10 duty to ensure the child is educated11 and to learn appropriate trade;12 among others.13
Parental liabilities on the other part, is the concomitant failure on the part of any parent/guardian to perform his/her parental responsibilities and obligations towards the child. Parents can also be legally responsible for their children’s behaviour. State laws can vary, but from the time a child is around 8 years old and until he or she reaches the age of majority (18 in most states), parents could be subject to civil lawsuits or even criminal sanctions for the negligent or criminal acts of a child. In civil cases, if a Child’s negligence causes an injury to another, his or her parents may be ordered to pay damages or restitution. In the criminal sense, parents could be punished for their children’s delinquency or absence from school, gun crimes, or Internet crimes.14
One needs not go to Beijing, to realise the spirit behind Section 220 of the Child’s Right Act. This section empowers the court before whom a child is charged with an offence (and where such offence is punishable with a fine) to order the Child’s parent(s) or any person having the parental responsibility for the child to pay the fine;15 except where such parent never condoned such act or cannot be found.
Guardianship
The question ‘who is a guardian?’ is defined in Section 83 of the Child’s Right Act.16 The following persons are guardians of a child under the law:17
i. The parents of a child/Surviving parent18
ii. a family member or any authority appointed by the court ( where the parents of the child are unfit; so to act)19
iii. a person appointed by deed by a surviving or single parent.20
It follows therefore that guardianship may be created naturally, by order of Court, by a deed or by will.21 A guardian may also be appointed either for all purposes or for a specific purpose (i.e a guardian ad litem).22 Suffice it to add that for the appointment of a person as a guardian to be legally effective, the consent of such person is material, sought and obtained.23 It is the duty of a guardian or joint guardians to act in the best interest of the child; having the parental responsibility for that child.
To this end, where there is a dispute between joint guardians on any question affecting the welfare of the child, either of the joint guardians may apply to the Court for its direction, and the court may make an order regarding the question in dispute.24 A guardian ad litem may be appointed under Section 89 of the Child’s Right Act, 2003 for a child concerned; to safeguard the interests of the child in any specified proceedings, unless it is satisfied that it is not necessary, to do so. This is done in accordance with the Rules of court before whom such matter is pending.25 Mention must be made, that a legal practitioner may be appointed to act in the interest of the child, where such child concerned is unrepresented in the matter subject to certain conditions.26
The Minister charged with responsibility for matters relating to children may by regulations provide for the establishment of panels of persons from which guardians ad litem appointed under the law shall be selected.27
Under the Customary Law, it is held to be in the best interest of the child to put him under a blood relation.28 A guardian is appointed under customary law by a father, the head of the family or the customary court.
Revocation of Guardianship.
The appointment of a person as a guardian with parental responsibility for a child
under section 85 and 89 of the Act, may be terminated by an order of the court:
i. on the application of a natural parent or any person who has parental responsibility for the child;
ii. on the application of the child concerned, with leave of the Court;
iii. in any family proceedings, if the Court considers that it should be brought to an end notwithstanding that no application, has been made; or
iv. on the application of an appropriate authority.29
Under Customary Law, the death of either the guardian or the child, terminates the
relationship.
Adoption
This is the creation of a parent-child relationship by judicial order30 between two parties who usually, are unrelated; the relation of parent and child created by law
between persons who are not in fact parent and child. This relationship is brought about only after a determination that the child is an orphan or has been abandoned, or that the parents’ parental rights have been terminated by Court order.
Adoption creates a parent-child relationship between the adopted child and the adoptive
parents with all the rights, privileges, and responsibilities that attach to that relationship, though there may be agreed exceptions. This relationship can occur in many forms: it could be an equitable adoption/adoption by estoppels, adoption by
will, closed adoption, cooperative adoption, adult adoption, agency adoption, de facto adoption, etc.31
Before 1965, there existed no laws regulating statutory adoption until the enactment of the Eastern Nigeria Adoption Law in 1965; this was followed by the Lagos State Adoption Law, 1968. Other states of the federation made similar laws: Bendel State (1979), Rivers State (1981), Ogun State (1983) and Oyo State (1984). The Child’s Right Act of 2003 was enacted and the states which had adopted same abolished their various Adoption Laws.32
Persons who may Adopt
Under section 129 of the Child’s Right Act, the following category of persons may apply for an adoption order:
i. a married couple where (a) each of them has attained the age of twenty‐five years, and (b) there is an order authorising them jointly to adopt a child; or
ii. a married person if he has obtained consent of his spouse, as required under section 132 of this Act; or
iii. 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.33
An adoption order shall not be made in respect of the child unless (a) the applicant(s) is not less than twenty‐ five years old and is, at least, twenty‐one years older than the child; (b) the applicant, or in the case of a joint application, both or, at least, one of them and the child are resident in the same State; (c) the applicant has been resident or, in the case of a joint application, both of them have been resident in the State in which the application is made for a period of. at least, five years; (d) the applicant is a citizen or, in the case of a joint application, both applicants are citizens of Nigeria; (e) the child has been in the care of the applicant for a period of at least three consecutive months immediately preceding the date on which the order is made; and (f) the applicant has, at least twelve months before the making of the order, informed the social welfare officer of his intention to
adopt the child. 34
Where the application is made by a married couple, consisting of a parent and a step parent of the child, the Court shall dismiss the application if it considers that the matter would be better dealt with possession and custody (Part VIII of the Act).
An application for adoption shall be made to the Court in such form as may be prescribed, and shall be accompanied with:
i. where the applicant is a married couple, their marriage certificate or a sworn declaration of marriage;
ii. the birth certificate or sworn declaration of age of each applicant;
iii. two passport photographs of each applicant ;
iv. a medical certificate of the fitness of the applicant from a Government hospital; and
v. such other documents, requirements and information as the Court may require for the purposes of the adoption.35
On receipt of an application 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 and thereafter make its order accordingly.
Persons who may be Adopted
Under section 128 of the Act, two category of persons may be adopted and the Court shall not make an adoption order in respect of a child unless:
i. the parents of the child or, where there is no surviving parent, the guardian of the child consents to the adoption; or
ii. 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.
The Court shall, in placing a child for adoption, have regard as far as is practicable to the wishes, if any, of the parents or guardian of the child as to the religious upbringing of the child.36 A child may be adopted notwithstanding that a corrective order is in force in respect of the child.37 Again, a child may also be adopted notwithstanding that a maintenance order is in force in respect of that child.38
Material Consents39
The consent of a spouse is material where a married person is the sole applicant for an adoption order. The Court may, if it thinks fit, refuse to make the order if the consent of the spouse of the applicant to the making of the order is not first obtained. Secondly, where it appears to the Court that a person other than the parent or relative of a child has any right or obligation in respect of the child under an order of the Court or any agreement or under customary law the Court may, if it thinks fit, refuse to make the adoption order if the consent of that person is not first obtained.
The consent required under the Act may be given either‐ (a) unconditionally; or (b) subject to conditions with respect to the religious persuasion in which the child is to be brought up.40
In giving consent, it may not be necessary for the person giving the consent to know the identity of the applicant for the adoption order. However, the Court may dispense with any consent required under the Act if it is satisfied that the person whose consent is required cannot be found or is incapable of giving his consent or is withholding his consent unreasonably.
The Court shall, before making an adoption order, satisfy itself that (a) every consent required under section 132 of the Act which has not been dispensed with has been obtained; (b) every person who has given his consent understands the nature and effect of the adoption order for which the application is made and for this purpose the
relevant adoption service shall provide adequate counselling for the parties involved in the adoption; (c) the order, if made, shall be for the welfare and best interest of the child, due consideration for this purpose being given to the wishes of the child having regard to his age and understanding; and (d) the applicant has not
received or agreed to receive, and no person has made given or agreed to make or give to the applicant any payment or other reward in consideration of the adoption other than what the Court may approve.41
Effect of an Adoption Order
Once the court makes an adoption order, all rights, duties, obligations and liabilities, including any other order under the personal law applicable to the parents of the
child or any other person in relation to the future custody, maintenance supervision and education of the child, including all religious rights, right to appoint a guardian and to consent or give notice of dissent to marriage, shall be extinguished; and there shall vest in, and be exercisable by and enforceable against the adopter (i) all rights,
duties, obligations and liabilities in respect of the future custody, maintenance, supervision and education of the child, and (ii) all rights to appoint a guardian and to consent or give notice of dissent to marriage of the child, as would vest in the adopter as if the child were a natural child of the adopter, and in respect of those matters, the child shall stand to the adopter in the relationship of a child born to the adopter.42
Adopted Children Register
Under Section 142 of the Act, the Chief Registrar has a duty to establish and maintain a register to be called and known as the “Adopted Children Register” in which shall be made such entries as may be directed by an adoption order to be made therein, but no other entries.
The Adopted Children Register has been held to be the best form of evidence in proving adoption. See the case of Olaiya v. Olaiya & Ors (2002) LPELR-2558(SC).
Adoption Services
Every State Government has an obligation, for the purpose of adoption, to establish and maintain within the State and, in the case of the Federal Government, within the Federal Capital Territory, Abuja a service designed to meet the needs of‐
i. a child who has been or may be adopted;
ii. parents and guardians of the child; and
iii. persons who have adopted or who may adopt a child, and for this purpose, every Government shall provide me requisite facilities or ensure that the facilities are provided by approved adoption services as may be prescribed by the appropriate authority.43
Distinguishing Adoption and Guardianship
Adoption and guardianship are both legal arrangements for the care and custody of children. Most times, people intermix guardianship and adoption. This should not be so. While guardianship and adoption basically involves attaining a position of being placed as a child’s care-giver (that is to say, acquiring parental rights, responsibilities, obligations and liabilities), there are some distinctive elements between the two, some of which are:
- Guardianship gives an individual the right to be responsible for the welfare of a child, and in some cases, physically accommodate the child. However, it doesn’t confer parental title on the guardian as the legal relationship between the child and the biological parents still subsists and remains binding under the law. Adoption, on the other hand, completely severs the legal right the natural parents have with the child, transferring same to the adoptive parents. The biological parents, as Soon as the adoption process is complete, will no longer have any right, duty or claim to the child. While the former does not terminate parental rights, the latter does.
- Guardianship is temporary in nature, as the relationship terminates, when the child attains the age of maturity which is usually 18 years, or subject to the provision of the State Law. It can also be terminated upon application of the natural parents, or anyone who has parental responsibility to the child. An application for termination can also be instituted by an authorized body, or by the child concerned with leave of
the court. Adoption, on the other hand, is a binding relationship, Just as one between a child and a parent is expected to be, and can only be revoked if it is discovered that false information was given in the Course of obtaining the adoption order. - A child who is under the guardianship of an individual retains the right to inherit
from the biological parents while an adopted child forfeits the right to inherit from the natural parents, and can only exercise the right of inheritance with the new adoptive parents, except in situations where the child has been listed as a beneficiary in the will of his/her biological parents.
- A child who has a legal guardian is still expected to bear the name of the birth
parents, whereas an adopted child takes up the name of the new parents. - Guardianship is restrictive in nature. As a legal guardian, there is a legal restriction
placed on the kind of decisions you are permitted to take on behalf of the child while an adoptive parent is, without constraints, allowed to take legal decisions affecting the life of the child. - The biological parent of a child that has been placed under the care of a guardian
can without restriction, visit the child in cases where the child is resident with the
guardian. But an adoption order annihilates the right of the birth parents to have access to the child except in an open adoption Agreement.44
Loss of Parental Rights
A child development officer, a police officer or any other person authorised by the Minister may bring a child before the Court if he has reasonable grounds for believing that the child is an orphan or is deserted by his relatives; has been neglected or ill‐treated or battered by the person having the care and custody of the child; has a parent or guardian who does not exercise proper guidance and control over the child; if found destitute, has both parents or his surviving parent, undergoing imprisonment or mentally disordered or otherwise severely incapacitated; is under the care of a parent or guardian who, by reason of criminal or drunken habits, is unfit to have the care of the child; is the daughter of a father who has been convicted of the offence of defilement or indecent treatment of any of his daughters etc45
The Court, if satisfied that a child brought before it comes within any of the paragraphs of subsection (1) of section 50, may cause the parent or guardian of the child to enter into a recognisance to exercise proper care and guardianship over the child; or make a corrective order‐ (i) committing the child to the care of any first
person whether a relative or not, who is willing to undertake the care of the child; or
(ii) sending the child to an approved institution, in exceptional circumstances where a non‐institutional measure is impracticable or inappropriate.
Where the Court is satisfied that the parent or guardian of a child is unable to control
the child the Court may, if further satisfied that it is expedient so to deal with the
child; and that the parent or guardian understands the results which will follow from the consents to making of the order, make a corrective order in respect of the child or order the child to be placed for a specified period, not exceeding three years,
under the supervision of an appropriate supervisory child development officer or of
some other person appointed for the purpose by the Court.46
Mention must be made that within such period when such child is in under the care
of the institution, Parental Rights are lost; leaving the parents with the liability of paying maintenance costs for the child; where the court deems same appropriate.47
Other ways of loosing parental rights over the child include:48
i. Child Abuse Factors
-Severe or chronic physical abuse of the child.
-Any sexual abuse of the child.
-Severe psychological abuse or torture of the child.
-Extreme emotional damage to the child inflicted by the parent.
-Child neglect by failing to provide shelter, food, or other needed care as is required by parental obligations.
-Abuse or neglect of other children in the same household.
-Abandonment of the child or extreme parental disinterest.
-Felony conviction of the parent for a violent crime against the child or another family member.
-The child would be at risk if returned to the parent’s home.
ii. Parental Factors
-Long-term mental illness of the parent.
-Long-term alcohol or drug induced incapacity of the parent.
-Failure to support the child.
-Failure to maintain contact with the child.
-Failure to provide education.
-Felony conviction of the parent when the term of imprisonment is long enough to negatively impact the child and the only other source of care for the child is foster care.
-Failure of the parent to comply with a court ordered plan.
-Inducing the child to commit a crime or crimes.
-Unreasonable withholding of consent to adoption by the non-custodial parent.
-The identity or location of the father is unknown after a reasonable attempt to determine or find him.
-The putative or presumptive father is not the child’s biological father.
-Giving birth to three or more drug affected infants.
-Other egregious conduct or heinous or abhorrent behaviour by the parent either to the child or others in a way that affects the child.
-Voluntary relinquishment of rights by the parent.
-Failure of reasonable efforts to rehabilitate the parent and reunite the family.
Conclusion
The hallmark of parenting; whether by Adoption or guardianship is the interest of the child. Thus in every action concerning a child, whether undertaken by an individual,
public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child is the primary consideration.49 A child shall be given such protection and care as is necessary for the well‐being of the child, taking into account the rights and duties of the child’s parents, legal guardians, or other individuals, institutions, services, agencies, organisations or bodies legally responsible for the child.50
References
- In most cases, when the child attains a majority age of 18 years.
- We shall also look at the enabling laws applicable in Nigeria particularly the Child’s Right Act, 2003.
- The exception is where at the time the child was conceived, the parties were living apart under a decree of Judicial Separation. Also see section 84 of the Matrimonial Causes Act; E. I. Nwogugu, Family Law in Nigeria, Third Edition, 2014, page 297.
- See Sections 63 and 64 of the Child’s Right Act, 2003 as well as the Child’s Right Laws of various states. The Parental rights and obligations of any child born to a married couple is automatic under that law save the father and mother of the child were not married at the time of the Child’s birth.
- Section 19 of the said Act, provided for the responsibilities of the child depending on his age and ability which included among others, responsibilities towards his family, society, Federal Republic of Nigeria and other international or national bodies; respect for his parents etc.
- Child’s Right Act, 2003.
- Section 295 Criminal Code Act.
- Ibid, Section 301.
- Ibid section 341.
- Section 15(2) Child’s Right Act, 2003.
- See also Sections 2 and 4 Compulsory Universal Education Act, 2004.
- See also section 20 of the Child’s Right Act.
- Parental Rights and Liability, https://www.findlaw.com/family/parental-rights-and-liability.html accessed on 23rd February, 2021.
- Here the law punishes failure in parental responsibility.
- Section 82 of the Act vested on a guardian, parental responsibility for the Child.
- See also Section 277 of the Act.
- Section 83(1).
- Section 83(2).
- Section 83(3) and (4).
- Section 84(4).
- See section 82(2).
- Section 85.
- Section 88.
- Section 89.
- Section 89(3).
- It is pertinent to note that before a legal practitioner is appointed, certain conditions must have been certified. See section 89(4) of the Child’s Right Act.
- See Section 90.
- E. I. Nwogugu, Family Law in Nigeria, Third Edition, 2014 at pg. 323.
- “appropriate authority” is the State Government or any other body having responsibility for the welfare of children looked after by the State Government; see Section 277 of the Act.
- See Section 130 and 136, Child’s Right Act, 2003.
- See Ibiam v. Ibiam & Anor (2017) LPELR-42028(CA).
- E. I. Nwogugu, Family Law in Nigeria, Third Edition, 2014 at pg. 334.
- In all cases, the adopter or adopters shall be persons found to be suitable to adopt the child in question by the appropriate investigating officers.
- Section 131 of the Act. These conditions must be met before and adoption order may be made
- Section 126
- See Section 127, Child’s Right Act, 2003.
- Section 139.
- Section 140.
- See Section 132.
- Section 127.
- Section 133.
- Section 141(1). For the purposes of the devolution of the property on the intestacy of the adopter an adopted child shall be treated as a child born to the adopter.
- Section 125.
- Distinguishing Between Adoption and Legal Guardianship; https://www.harlemsolicitors.com/2019/10/10/distinguishing-between-adoption-and-legal-guardianship/ Accessed on 25th February, 2021.
- See Section 50(1) of the Child’s Right Act, 2003.
- Section 51.
- See Section 52.
- Grounds For Terminating Parental Rights, https://www.findlaw.com/family/parental-rights-and-liability/checklist-grounds-for-terminating-parental-rights.html accessed on 25th February, 2021.
- Section 1, Child’s Right Act, 2003.
- Section 2 of the Act
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