Adoption in Nigeria and the Provisions of the Law.
By Barr. Nneoma Grace Ogbah
What is Adoption ?
Adoption can be said to be a two step judicial process whereby the legal relationship between a child and his natural parents are terminated and new rights and obligations created between such child and his adoptive parents. Adoption involves the creation of the parent-child relationship between individuals who are not naturally so related. The adopted child is given the rights, privileges, and duties of a child and heir by the adoptive family.
Adoption is recognized by our laws. It is statutory and as such, the statutes provides for the qualifications of adopters, manner, means and consequences of adoption.
Who may adopt a child ?
Anyone wishing to adopt a child must first of all be qualified under the laws of his state. By the provisions of section 3(1)Adoption Law, no. 12,1965, Laws of Eastern Nigeria and section 5(1) of the Adoption Law, Ogun State, no.3 , 1983, any person may be authorized by court to adopt a juvenile.
A child may be jointly adopted by a husband and wife, unmarried individuals can also adopt a child but where a sole applicant is a female, she will not be allowed to adopt a male juvenile, same applies where the applicant is a male, unless in very exceptional circumstances which in the opinion of the court, will justify the making of such order. This rule is for the good of the society in the prevention of sexual corruption.
It is the law that an applicant seeking to adopt a child must be at least 21 years older than the child to be adopted. See section 4(1) Laws of Eastern Nigeria and section 3(1)(a) Lagos State Adoption Law,1968. It is also the law that only a juvenile can be adopted. Juvenile in some states are persons under seventeen years of age whereas some states provide that juveniles are persons under eighteen years of age.
Children may be adopted in situations where their natural parents are living, dead, or unknown, or where they have been abandoned, depending on the state. See section 1(1) Lagos state Adoption Law; section 3 Ogun state Adoption Law; section 2 of the Ogun State Adoption Law.An adoption will not be prevented by the fact that a child has a legal guardian.
Requirement of consent:
In an adoption proceeding, consent is a very important factor in other to make an adoption order. In any situation where a husband or wife is a sole applicant for an adoption, the consent of his spouse must be sought and obtained. Also, in states where the parents of the juvenile may be known, the consent of the parents must be obtained. See section 5(1) Laws of Eastern Nigeria, Imo, Anambra, Rivers states.
Also, where a person who is not the parent of a child exercises some sort of control over such juvenile, the court may require the consent of such person. However, it is pertinent to note that the court can dispense with consent of a person whose consent is required where such person has persistently neglected, ill-treated, maltreated or even abandoned the child.
Legal Consequences Of Adoption:
Once an adoption order is made by the court in favor of the applicant, certain legal consequences automatically flows. These legal consequences include:
- Once an adoption order is made, an adopted child becomes entitled to the same rights and obligations as the biological child of the adopter. The parental rights and obligations between the juvenile and his natural parents is severed and the death of the adoptive parent(s) does not restore such severed relationship with his natural parents.
- Once an adoption order is made, such order discharges any person who was prior to that time obligated to maintain the juvenile.
- Once an adoption order is made, an adopted child can inherit from adoptive parents in the same capacity as natural children and, conversely, adoptive parents can inherit the property of an adopted child who predeceases them.
- Finally, once an adoption order is made, there automatically exists a blood relationship between the adopter and the adopted juvenile and this brings them within the prohibited degree of affinity and consanguinity.
See sections 12(1) Adoption Law of Lagos state, section 15(1), 17 and section 25 of the Ogun State Adoption Law.
TYPES OF ADOPTION IN NIGERIA
In Nigeria, we have basically 2 types of adoption namely:
- Customary adoption
- Statutory adoption.
Customary adoption:
This type of adoption may be formal or informal. Where it is formal, a meeting between the adopter and adoptee is arranged, where the adopter makes his intention known to make the adoptee his heir. The purpose of this meeting is to formally transfer the parent’s rights and duties of the child to the person seeking to adopt the child, which is a crucial aspect of the adoption.
After this has been done, the whole process is sealed with a little ceremony and that ends the whole thing.
Where a person takes up the responsibility of accepting a child, probably his late brother ’ s child/children as his own, or marries a woman who has a child, informal adoption is said to have taken place. By accepting responsibility of the child, such child shall be entitled to all the rights as a biological child.
Statutory adoption:
Here, adoption is formal and is governed by written laws, ( usually based on the written law of the state the adoption is being conducted). The adoption laws of the various states where such laws exist govern statutory adoption in those states. Such laws usually provide for the qualifications of persons eligible to adopt and be adopted, conditions for adoption, consents required before adoption,procedures to be followed in adoption matters and the legal effects in adoption.
One distinguishing feature of statutory adoption from customary adoption is the fact that while statutory adoption permanently extinguishes the rights and legal relationship between the child and his natural parents, this is not so under customary form of adoption where the rights and legal relationship between the child and the natural parents remains intact.
PROCEDURE FOR ADOPTION UNDER THE NIGERIAN LAW
Section 126(1) of the Child’s Right Act of 2004, provides for the adoption of a child in Nigeria. An application for adoption is usually made to the High Court or Magistrate court ( in some states, the juvenile court), accompanied by the following documents:
- Where the applicant is a married couple, their marriage certificate or a sworn declaration of marriage
- The birth certificate or sworn declaration of age of each applicant
- 2 passport photographs of each applicant
- A medical certificate of the fitness of the applicant from a Government hospital
- Such other documents, requirements and information as the Court may require for the purposes of the adoption.
In practice, the Court prefers that an applicant must have fulfilled the condition precedent at the Child Welfare Department and obtain a report stating that the applicant is a proper person to adopt the child. The report would accompany the application for adoption.
Upon receipt of an application for adoption, the Court shall order an investigation to be conducted by child development officers or a supervision officer or 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.
The Court shall, in reaching a decision relating to the adoption of a child, have regard to all the circumstances. Consideration shall be given to the need to safeguard and promote the welfare and the best interest of the child throughout the childhood of that child and ascertaining, as far as practicable, the wishes and feelings of the child regarding the decision and giving due consideration to those wishes and feelings, having regard to the age and understanding of the child. See section 126(3) of the Act.
However, it is worthy to note that the juvenile is usually placed in the care of the proposed adopter for a period of 3 consecutive months immediately preceding an adoption order. This is to avail both the juvenile and the proposed adopter an opportunity to know each other better and for the adopter to decide whether or not to adopt the juvenile. If this 3 continuous month is interrupted, the court will not make an adoption order in favor of the proposed adopter.
Barr. Nneoma Grace Ogbah
Legal officer, DITOIL Energy ltd.
Phone no: 08119690931, 08106472510
Email: ogbahgrace994@gmail.com
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