THURSDAY, THE 4TH JUNE 2015
MATER MISERICODIAE CATHOLIC CHURCH PARISH
THE HEALTH WEEK PROGRAMME OF THE PARISH
DR T. C. OSANAKPO, SAN, KCSGG
BASIC LEGAL PERSPECTIVES OF ADOPTION IN RIVERS STATE
- 1. PREAMBLE
1.1 I was approached by the leadership of organizers of Health Week of our Parish to deliver a talk on Adoption. I could not give an instant affirmative response because I was not sure of my schedule at the time.
1.2 Undoubtedly, my zeal to participate in today’s event was heightened when I was told the purpose. You may need to ask “what was the purpose?” The response was for public enlightenment so that members of our Parish Church would be properly informed as to the legality or otherwise of adoption in the environs we live. Therefore I made up my mind to share my thoughts on this occasion because Adoption is perceived as being contemporary, topical and indeed in the interest of our society especially in Rivers State where we reside.
- DEFINITIVE LEGAL MEANING OF ADOPTION
2.1 I am mindful of the question posed to me by the leadership of the organizers of the Health week programme of the quest to know whether Adoption is legal in our local environs in Rivers State. It is against this background that I wish to state as follows:
- generally speaking adoption is taking another person’s child into your nuclear family to become the child’s legal parent. The implication of adoption is that such a child legally becomes part of the family which is not the one in which he or she was born1. In other words, adoption gives rise to a parent-child relationship which is legally consummated upon procurement of a judicial order of a court of competent jurisdiction.2
- See Oxford Advanced Learner’s Dictionary of Current English – A S Hornby 8th Page 19.
- See Black’s Law Dictionary 9th Edition page 55
2.2 Furthermore, it is pertinent to state that there is a legal framework that regulates Adoption in Rivers State. It is known and called Adoption Law of Rivers State.3 Therefore for any adoption to be lawful in Rivers State, it must be in accordance with the extant provisions of Adoption Law of Rivers State State4 and not otherwise.
- IMPERATIVES OF ADOPTION IN RIVERS STATE
3.1 Having established that there is a legal framework that regulates adoption in Rivers State, the question which arises is “who is entitled to obtain a judicial or court order for adoption in Rivers State?
3.2 The answer to the posed question is that an applicant seeking a judicial order for adoption needs to fall within any of the following categories of persons5 namely –
(a) has attained the age of twenty five and at least twenty one years older than the juvenile6 i.e the person to be adopted or
(b) has attained the age of 21 and is a relative of the juvenile;
3.3 It is indeed necessary to state at this juncture that an applicant seeking for a judicial order for adoption purpose may either be a sole applicant or joint applicants. However an adoption order shall not be made in favour of a sole applicant who is a male unless the court is satisfied that there are special circumstances that justify the making of such order.7
3.4 It is noteworthy to empahsize that a judicial order will not be made by a Court in Rivers State for adoption of a juvenile unless the following requirements are met8 – i.e
(i) “both the applicant and the juvenile to be adopted shall reside in Rivers State; and”
- See Cap 3, Laws of Rivers State 1999 Volume I.
- See Sections 2(1)a and 2(1)b Adoption Law Cap 3, Laws of Rivers State of Nigeria 1999, Volume I. A juvenile is any person under the age of seventeen.
- See Section 2(1)b of ibid.
- See Section 2(3) of ibid.
- See Section 2(4) of ibid.
(ii) “the juvenile has been continuously in the care and possession of the applicant for at least 3 months immediately preceding the date of the order; and”
(iii) “the applicant has at least 3 months before the date of the order, notified the Chief Welfare of the State of his intention.”
3.5 Furthermore, the other issue that may possibly agitate the minds of this distinguished audience may thus be – “Is the consent of a parent required prior to adoption order by the Court?” To answer the posed question, I wish to humbly submit9
- basically, the consent of every person who is a parent of a juvenile is required before a High Court or Magistrate Court in Rivers State will make an adoption order in the State. However the Court may dispense with the consent of a parent of a juvenile in the event of any of the following occurring –
(a) abandonment of a juvenile; or
(b) neglect or persistent ill treatment of the juvenile; or
(c) the parent of the juvenile cannot be found; or
(d) the parent is incapable of giving his consent or where the consent is unreasonably withheld.
3.6 The other pertinent issue that needs to be raised in this discourse is whether it is lawful for an adopter to pay any sum of money to a parent of a child or juvenile prior to adoption in Rivers State. The response to the raised issue is provided in Section 15 of Adoption law10 of Rivers State. It11 stipulates as follows:
- See Sections 3(1) and 3(2) of ibid
- See Cap 3 The Laws of Rivers State of Nigeria 1999 Volume I
- See Section 15 of ibid.
(1) “it shall not be lawful for an adopter, or for a parent of a juvenile to receive, except with the sanction of the Court, any payment or other reward in consideration of the adoption of the juvenile under this law or for any person to make or agree to make or give or agree to make or give to an adopter, or parent, any payment or reward the receipt of which is prohibited under this subsection.”
(2) “it shall not be lawful for any person who is not the parent of a juvenile to receive or agree to receive any payment or other reward for making or facilitating any assignments under which a juvenile is placed in the care and possession of a person who is also not the parent of the juvenile whether or not the arrangements will lead to his adoption of the juvenile.”
3.7 It is important to submit that any person who contravenes Sections 15(1) and 15(2) of the Adoption law of Rivers State is guilty of an offence which attracts imprisonment for 3 months or a fine N2,000 (Two Thousand Naira) or both.
- RIGHTS AND DUTIES OF PARENTS WHO HAVE OBTAINED A JUDICIAL ORDER FOR ADOPTION.
4.1 On obtaining a judicial order from the appropriate Court in Rivers State, specific rights and duties are imposed on the parent of the adopted child. Therefore, the apt question which arises is – “what are the legal rights and duties imposed by the applicable Adoption Law in Rivers State on a parent vis a vis the adopted child.” The answer is simply thus12 –
(i) “there shall vest in and be exercisable against the adopter all such rights, duties, obligations and liabilities in relation to the future custody, maintenance and education of the juvenile, as if the juvenile were a child born to the adopter in lawful marriage;
(ii) in respect of custody, maintenance and education, the juvenile shall stand to the adopter exclusively in the position of a child born to the adopter in lawful marriage;
(iii) for the purpose of law relating to marriage (including customary law marriage) there is hereby deemed to exist a prohibited degree of consanguinity –
- See Sections 11(1), 11(2), 11(4)a, 11(4)b, 11(4)c and 11(4)d of ibid.
(a) “between the adopter and the person whom he has been authorized to adopt under the adoption order; and
(b) between persons adopted by the same adopter under the same or different adopted orders; and
(c) between an adopted person and a son or daughter of the adopter.”
5.1 The essence of this talk is to provide basic information and essentials to guide the society on what amounts to a proper or lawful adoption in Rivers State, Therefore the commended definition of adoption, the imperatives of adoption, the obligations imposed by Adoption law of Rivers State tend to give an insight on what amounts to a due or proper Adoption in the State. The earlier highlighted perspectives are to ensure that residents of Rivers State are not subjected to contraptions or unnecessary challenges in adoption process in the environs they reside.
5.2 The point that needs to be reiterated in this discourse is that adoption of a child is not to be predicated on the payment of monetary sum or monetary reward except if such is authorized or ordered by the Court. Therefore any payment of money or whatever monetary reward paid for purposes of adoption without the authority or sanction of the Court is at variance with Adoption law of Rivers State hence an undue Adoption.
5.3 The fundamental condition that confers legitimacy in adoption process in Rivers State is premised on a judicial order. In other words an adoption that is devoid of Court order from either a High Court or Magistrate Court in Rivers State is not adoption in law.
5.4 Adoption made pursuant to adoption law of Rivers State is strict. Therefore the parent or Adopter of a child needs to abhor any form of child abuse, but has the obligation to ensure always the welfare of the adopted child in terms of proper custody, maintenance, education and indeed the general well being of the child. As members of this society, we are therefore expected to promote and encourage adoption that is in accordance with the Adoption law of Rivers State in the overall interest of our society.
Thank you !