Offence of Adoption: Law and Policy in the Nigeria Legal System
CHAPTER ONE
OBJECTIVES OF STUDY
The primary aim and objective of this work is to critically examine the offence of Adoption under the Nigeria Legal System. However to pursue the principal goal, its Law and policy will be evaluated. Some specific objectives are to examine:-
- The process of adoption, which includes the consent agreement amongst parties. The consent provision under the statutes following the party’s vis-avis the adopted children and the adopting parent.
- The effect of adoption under the Nigeria legal system.
- The welfare of an adopted child
CHAPTER TWO
THE CONCEPT OF ADOPTION IN NIGERIA
INTRODUCTION
Adoption is a legal process whereby a person obtains judicial or administrative authorization to take (usually but not invariably) the child of another person as his own and parental rights & obligations are permanently transferred from the child’s natural parents to the adopter under the United Nations Convention on the Rights of the Child 1989, adoption is recognized as one of the forms of alternative care for children who have been temporarily or permanently deprived of their family environment and also for children who are unable to remain in their family environment.[1]
The factors that necessitate the adoption of a child ranges from the mere fact that a person childless is of the desire to replace a dead child, to acquire a companion for an only child, to stabilize a marriage, to legitimate an illegitimate child, to sustain a particular line of descent, to rescue a child who is an irreversible situation of abandonment or to relieve parents who are unable to take care of their child.[2] Adoption touches upon the adopted child’s status; hence it affects his legal rights, welfare and obligations.[3]
Thus, adoption confers on the child all the rights vis-à-vis his adoptive parent(s) as if the child has been born to them in lawful wedlock as well as imposes on the adoptive parent(s) parental responsibility equivalent to that of the Natural parents of the child.[4]
HISTORY OF ADOPTION LEGISLATION IN NIGERIA
The Earliest statute on adoption in Nigeria was the Adoption Law of 1965 of the defunct Eastern Region of Nigeria.[5] Up till 1965, there was no statutory basis in any part of Nigeria for the adoption of persons. However, the first attempt at providing a statute on adoption was a private members bill presented to the Eastern House of Assembly in April 1958, the Eastern region (welfare of illegitimate children) Adoption bill 1958, unfortunately, this bill was not well received in the house and had to be withdrawn. From 1958, the federal Government gave some thoughts to introducing legislation on adoption for the then Federal Territory of Lagos as it could not legislate for the entire country, because adoption was a regional subject. The Federal Government also decided to consult the Regional Governments on the nature of any statute on the subject so as to ensure uniformity in any statutes which might be enacted and also explore the possibility of having a single statute for the whole country. However, all efforts of the Federal Government failed without even producing a statute for the Federal Territory of Lagos.[6]
When the then Eastern Region proceeded to legislate on the subject, it consulted the Federal and Regional Governments to ensure harmony and then came the Eastern Nigeria Adoption law, 1965 (this law now applies to Anambra, Imo and Rivers States).[7] Today Virtually all the states of the Southern part of Nigeria have adoption statutes. Subsequently, other states of the Federation followed suit in enacting legislation of Adoption-Bendel State(1979), cross Rivers State( No.7 0f 1981); Ogun State 1983 no.3 of 1968, Oyo State passed it own in (1984) no.4 of 1985.[8] The Lagos state Adoption law, 1968 came after the creation of the 12 states Structure in 1967.[9] More recently in 1988, Benue State passed a law on adoption. However, there are substantial similarities in these legislation though significant differences also exist. This is to submit that in the Nigeria of today, there is no national adoption law.
CHAPTER THREE
LAW AND POLICY OF ADOPTION IN NIGERIA
INTRODUCTION
Generally to “adopt” means to take as one’s own. In law, adoption is a procedure where an infant is taken into the family of the adopter. Adoption is therefore the creation by a process of law of the relationship of parents and a child. Commonly, the adopter and the child will have no generic relationship and the adoptive relationship will be wholly an artificial creation of law.
Initially, adoption was known to common law and no provision was made for it in England until the adoption of Children Act 1873. The law was consolidated by the Adoption Act 1964 and 1968. In Nigeria, only few States have statutory provision on adoption. They are Lagos State and Eastern States like Anambra, Imo, Enugu etc[1]. An adoption order terminates the legal relationship between the child and his parents be it legitimate and illegitimate and also creates the legal relationships between the child and the adopting parents making it their legitimate child.[2]
LAW AND POLICY OF ADOPTION IN NIGERIA
The law and policy relating to Adoption practices in Nigeria is of course the responsibility of some legal bodies charged with functions such as preparing children for adoption, approving adoption. e.t.c.
LEGAL CONTROLS AND ADOPTION PRACTICES.
- Adoption services: The adoption Act 1976 section 1 imposes a duty on local authorities to provide an adoption service to ensure that the necessary facilities are provided by an approved adoption society. A body which wants to act as an adoption society must be voluntary (non profit making) organization and be approved by the secretary of State[3]. Approved lasts three years and is only granted if the organization can make effective contribution to the maintenance of Adoption Service and Facilities. Approved contribution to adoption may be withdrawn where it fails to supply the required information. Where the Secretary of State proposes to withdraw approval, he must serve a notice on the society with reasons; the society then has 28 days to make representations.
The adoption service is intended to meet the needs of the three groups involved in adoption: birth parents and their families, childless people, prospective adopters; and children (including those who are now adults) it has the responsibilities before adoption to identify children who might benefit from it, to counsel birth parents and for adoption proceedings to supervise the child’s placement and support prospective adopters; and, after adoption, to provide post adoption support (for example counseling and assistance in tracing the birth family).
CHAPTER FOUR
THE OFFENCE OF ADOPTION UNDER THE NIGERIA LEGAL SYSTEM
INTRODUCTION
The consequences of adoption cannot be seen in purely legal terms, it is well recognized that adoption confers “an extra psychologically and emotionally important sense of ‘belonging’.” There is however, a real benefit to the parent/child relationship in knowing that each is from outsiders.[1]
However, adoption is not the only way of showing a child that a relationship is secure; nor will adoption necessarily ensure that a relationship is maintained with the adoptive parents. Also where as, it is possible to be objective about legal consequences the same cannot be said about emotional ones.
The making of an adoption order through exiting wishes the parental responsibility of the child’s natural parent, and creates another with an outright stranger, there are however certain offences which are related to the vocation of the rules and regulation of adoption orders. This orders as provided by various adoption Laws, attracts fines and imprisonment even both where necessary, therefore young a child a sense of belonging.
OFFENCES IN RESPECT OF ADOPTION ORDERS
A number of acts are made punishable if committed against the prohibition of law made in respect of adoption orders.
CHAPTER FIVE
CONCLUSION
Adoption has been defined as the legal method of creating between a child and one who is not a natural parent of the child and artificial family relationship analogue to that of parent and child (Tomlin Committee 1926). The current law on adoption is contained in the Adoption Act of 1976, section 39(2) of the Act states that an adopted child shall subject to sub-section(3) be treated in law as if he were not the child of any person other than the adopter(s)’. Parental responsibilities will also be transferred upon the making of an adoption order. The Adoption Act 1976 does not make welfare of the child as the paramount consideration. Section 6 requires the court or Adoption Agency to have regard to 911 the circumstances, first consideration being given to the need to safe guard and promote the welfare of the child throughout his childhood. Once the court considers that adoption will promote the child’s welfare, then it goes on the second stage of the process which is to consider the issue of parental consent. A child has to be “free” to be adopted and section 18 provides that consent must be freely given by the parent(s) or the court has dispenses with consent on the basis of the criteria in section 16 (2) of the Act. In principle, once a child is freed for adoption, contact with natural parent should case, but in practice this does not always occurs as it may act against the long-term interest of some children. Section 16 (2) lists the reasons which allow the court to dispense with parental agreement to adoption. The most controversial is section 76(2) that the parent or guardian is withholding consent unreasonably. There are limited numbers of people who are allowed to adopt, the major category being married couples. Adoption by a single person is also allowed but there is no provision for unmarried couples to apply jointly for an adoption order. The legal effect of adoption on the adopted child can not however be under mined, as no other good can be provided by any other alternative care as that by adoption. Also considering the prohibitions partially submitted that in Nigeria today, thought we have a minimum amount of people involve in adoption, the offences can as well be said to be minimal.
It is believed that child adoption and fostering are viable ways in solving the problems posed by institutional care for children. In essence, adoption is a legal process, which provides a social and psychological method of providing motherless/homeless children with a family.
People should be enlightened on the irrevocable nature of the adoption laws. The pervading ignorance of this law demands that people be thought to guard against its snares. This they can do by cautiously examining and investigating the case work of any adoption process. It is pertinent to restate the need and propriety of using adoption as a measure to cater for the ever increasing number of motherless/homeless children in our midst. The type of care is very expedient in the face of the waning communal care for the homeless, which was once popular in our traditional societies. It is the duty of parents to protect every child born into this world. This generation should practice the provision of the laws of adoption for it is profitable and it becomes a veritable legacy for providing parental care to the generation yet unborn. If however, this legally is to be handed over to the young generation (children), everything must be done to up hold the practice of adoption in favour of these helpless children. The society therefore should accept the concept of adoption and practice whole-heartedly, there is no doubt that the establishment of adoption law and the child care principle that is embedded in it has helped to reduce the number of social misfit and law breakers in our various societies. In all it is incontrovertible that the present day adoption practice is a necessity in the society. The society has no option in accepting it.
RECOMMENDATIONS
The following recommendations are made against the backdrop and moving the concept of adoption to a greater height.
- Children over 12 years should have the right to participate in their own adoption and should be positively satisfied that adoption does offer significantly better prospects than less permanent alternatives.
- Step-parents should continue to adopt; but it should be made possible to make and register joint parental responsibility for the child without serving the child’s relationship with his other natural parent.
- In all cases where a local authority decides that a child, who is being looked after in care or accommodation needs a placement in a permanent substitute family, the local authority should convene a family group conference of members of the immediate family to plan the child’s future care.
- When dealing with adoption, factors to be considered includes ages of the parties wishing to adopt and their cultural or racial background and whether or not the prospective parents would be able to provide the necessary love and care for the child.
- There should be less restrictive approach to the matter of open adoption i.e. where contact is allowed between the child and the natural family; this may be beneficial to some children.
- Where the parents or a child cannot be found or is incapable of giving parental agreement; adoption would have a greater advantage for the child than any other alternative and this should be the only time when the court can dispense with parental agreement.
- Social welfare officers and Youth Development Officers and other authority in the Ministries of Social Development should ensure that the eligibility criteria for adoption and its processes are not flouted, but strictly adhere to.
- Local authorities should have offers in charge of child case centres and they should do everything to ensure that intending immates are thoroughly screened and their case work properly investigated before they are placed for adoption
- All social welfare programmes particularly those that concern children should be given adequate legal backing.
- Government, Voluntary Agencies and well-meaning individuals in the society should give due assistance to adoptive parents.
- One must not, however, lose sight of the risks inherent in separating a less than one-years-old child out rightly from his biological mother. For this reason, it is recommended that there should be a provision to the effect that, unless exceptional circumstances are shown, a child must be at least one year old before the parent(s) can voluntarily offer him for adoption.
REFERENCES
- Alfred B. Kasumu and Jeswald W. Salacuse Nigeria Family Law (Butter worths London 1966)
- Bryan A. Garner Blacks Law Dictionary (Eight Edition Thomson West, 2004)
- Cheshire, G.C. and North P.M, Private international Law (Eight Edition Butterworths, London 1970)
- Pearl D.; A text book on Muslim personal law (1987)
- Dicey A.V & Morris J.H.C Conflict of Law (12th Edition London Sweet and Maxwell 1993)
- Duncan W. The Hague Convention on the Protection of Children and Co-operation in respect of inter-country Adoption (Sweet & Maxwell 1993)
