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Judge’s lateral thinking leads to happy ending

Publish date: 13 February 2018
Issue Number: 92
Diary: A Matter of Justice
Category: A Matter of Justice


Few children have had as hard a start to life as the little girl at the heart of a recent Ugandan High Court judgment. (For obvious reasons she and her family are not named here, even though the court has issued a decision which names them all.)


She is one of twins, and has three other siblings, all born to a seriously dysfunctional family. Her father is an alcoholic who is completely unable to care for his children. Their mother is mentally challenged and could barely understand what was happening in court. The child was raped in 2015 – in Uganda the crime was called ‘aggravated defilement’ – due to what the court called her parents’ ‘incompetence’. She has suffered enormous trauma as a result and was thus moved to an institution for her protection.


Her life seemed to look up when a family from the US heard of her story through the organisation Children Safe Uganda, began to ‘sponsor’ her, and ultimately were able to foster the child. But when they took her for a full medical checkup, they discovered that she had an orthopedic condition that required surgery as soon as possible. All this, and the girl is barely 12-years-old.


Now the US couple want to formalise their growing relationship and adopt her. To do this they first had to clear many administrative hurdles, but finally they arrived at the point where the court could consider their application.


Papers before Judge Margaret Mutonyi showed that all the parties required by law to give their consent, provide a report or otherwise back the adoption, had done so.  


The would-be parents are aged 53 and 50, which means they are more than 25 years older than the child, as required by the adoption laws. The proposed inter-country adoption could, theoretically at least, be approved in terms of a provision that permits Ugandan children to be adopted by a non-citizen under ‘exceptional circumstances’. But there were other conditions attached, not all of which the proposed adoptive parents could satisfy.


They must be able to show that they had no criminal record and must have a recommendation from the relevant welfare officers in their own country saying that they would be suitable adoptive parents. They must satisfy the court in Uganda that the country to which the child would be taken would recognise the adoption.


All of these conditions were satisfied, with proper paper-work to prove it. But there were two further conditions that caused difficulty. The proposed adoptive parents must have lived in Uganda for 12 months before adopting the child, and they must have fostered the child for at least 12 months. Perhaps they could have waited but, as the judge stressed, the girl needed urgent surgery for which a surgeon had already been found in the US, who had promised the family he would do it at no charge. 


What was to be done? For a few sentences a reader of the judgment wonders if the court was about to turn down the application but then the judge quotes a section of the law saying that the court may ‘in exceptional circumstances’ waive any of the normal requirements associated with adoption. The next step, of course, was to establish whether the circumstances were in fact ‘exceptional’.


Foster care, such as the child was experiencing with the US family was not a ‘permanent placement’, said the judge, and generally social workers were supposed to try to achieve the ultimate ‘reunification’ of a fostered child with her or his own family or community. In some situations, however, it was in the child’s best interests to be adopted by the same people who were fostering her.


There was ‘no possibility’ that her parents would be in any better position ‘in the near future’ to take care of the child’s basic needs. Then there was her need for surgery, coupled with the fact that the potential adoptive parents were ‘gainfully employed’. All of these factors amounted to circumstances that persuaded the court to waive the normal conditions: ‘In the court’s view, fostering for one year which is a temporary condition, cannot be used to frustrate the process that leads to permanence in a child’s life.’


What was the attitude of her biological parents to the question of adoption? Her father had given his consent. ‘He feels completely helpless and incapable of taking care of his child. He has failed to look after his other children as well. He, however, wishes to keep in touch and know what is happening to (his daughter).’


The child was also asked for her wishes and her feelings about her parents. ‘She loves her parents and the court observed that she has at the same time bonded with the (would-be adoptive parents). (She) wishes to meet her parents in future. She wants to meet with her siblings.’


Both the new parents were touched by the wishes of the father and the child to stay in touch and said they would be happy to facilitate this and share important events in her life via Skype and social media.


Ugandan law did not provide for ‘open adoption’, said the judge, yet this seemed to be the most appropriate form of adoption in this case. It would serve the child’s best interests and allow her to keep a relationship with her twin brother and the rest of her family. The law in Uganda provided only for a ‘closed adoption’ where there was no contact at all after adoption between the biological parents, on the one hand, and the adoptive parents and the child on the other. But there was a section allowing children to be told about the identity of their biological parents under certain circumstances, and the judge thought she found ‘leeway’ via this section that would allow her to order an ‘open adoption’.  


She said an open adoption would be especially suitable in a case where the child was black while the new family was white. ‘It would enable the child to understand why he or she is different in colour from his or her parents.’ And it was even more appropriate in cases, like this one, where the child was old enough to have bonded with her biological parents before adoption.


The judge thus made an order appointing the US couple as the child’s adoptive parents, stipulating that it was to be an open adoption, with Child Safe Uganda as the contact point for keeping in touch with her biological family, always provided that the child was not stressed by maintaining contact.


Though there must be mixed emotions – you can’t help thinking about her twin brother and the other siblings left behind – this is a unique opportunity for the child, particularly given her particularly horrible history up to now. None of it, however, would have been possible if the judge had not thought laterally about the legal challenge facing her, and the best interests of the child.