Offence Of Adoption: Law And Policy In The Nigeria Legal System

Abstract

The essence of this work is borne out of the need to take critical look and an appraisal of the offence of Adoption under the Nigeria Legal System. In the course of this Study, an analysis shall be made as to it’s Law and Policy in the Nigeria Legal System. Chapter one of this work will give the basic introduction to this work, the background of the study, the object of this work, i.e. offence of adoption will be examined. Chapter two, will look deeply into the concept of Adoption in Nigeria vis-à-vis, the history of Adoption legislation in Nigeria, the adoption provision of the Child’s Right Act 2003, the procedure for the making of an Adoption Order, children who may be adopted, person’s who may adopt, consent required for adoption and finally the inter-country adoption system. Chapter three of this work, thus will look at the law and policy of adoption in Nigeria and the welfare of an adopted child.

The global interest on the welfare of children in relation to their rights, duties, maintenance and status on the society, will be strictly considered as the place of children in many societies, cannot be undermined being the future of any society. Chapter four of this work, will look into the offense of Adoption under the Nigeria legal system and the legal effect of Adoption under the Nigeria legal system equally. Chapter five, will give a general conclusion and recommendations. Thus, this work is intended primarily to make adoption process to be legalized in order to give adequate attention to the welfare of innocent children, not only this but also to explain the current tread and orders in adoption proceedings. In the green days of childhood, the young begins their irreversible march into the future with the resolution and sweet calmness of innocence, the march of childhood goes on as the human race endures. To this end, the writer of this study, though it wise to give credence to the burning issue surrounding the welfare of Adopted children, the effect of Adoption on the adopted child and upon the adopting parent, the offence of adoption, and also to expose the inadequaties in our Law, proffering necessary proposals for reform which the government and indeed the Law Reform Commission may consider to take care of the present peculiarities as regards the welfare of adopted children, thereby laying a sure foundation for Nigeria tomorrow.

Chapter One

General Introduction

1.0.0: Introduction

Adoption under family Law has a restricted meaning , not withstanding this fact, various authors and legal writers have defined the word “Adoption” in various ways:-

Sections 12 and 39 of the Adoption Act define Adoption thus: “Adoption is the process whereby a court irrevocably extinguishes the legal ties between a child and the natural parents or guardians and create analogues ties between the child and the adopters”.

Accordingly, LB CURZON adoption is the termination of a child’s Legal rights and duties towards his natural parents and the substitution of similar rights and duties towards his adoptive parents. Black Law Dictionary also defined adoption as the creation of a parent-child relationship by judicial order between two parties who are unrelated. There are three sets of participants in an Adoption, the adoptive parent seeking the adoption order, the child to be adopted and the birth parents of the child. There are four categories of adoption.

Related Adoption:- Here, one of the adoptive parent is required to be related to the child either by blood or marriage.
Agency Adoption:- Here, a licensed agency places a child on adoption with parents who have licensed to take care of children in their home.
Unrelated Adoption:- The child is adopted by unrelated parents with the absence of state licensed agencies.
Adult Adoption:- One of the adopting parent must be related to the adult or else, the person been adopted must have lived in the home of the adopting parent for at least two consecutive years and the adult consent to been adopted.

It is impossible to adopt a child without court order, a mere agreement in which a parent seeks to transfer his rights and duties to someone else is ineffective and will not be recognized by an adoption. The idea of defacto adoptions i.e. an arrangement where the child lives permanently with people who have put themselves in loco parentis to the child is ineffective to give the carer, parental responsibility to remove that of his parents. Under sections 2(9), (11) and 3(5) child’s Act . Such arrangement is not enforceable but would justify reasonable actions by the carer “for the purpose of safe guarding or promoting the child’s welfare”.

The legal concept of adoption is thus clear and straight forward. The use to which adoption has been put has however changed over the years, and it has increasingly come to be seen as an appropriate legal technique for securing the long-term care for children who need permanent placement outside their natural home. Adoption placements are no longer just for “healthy white babies” but for older children and those with disabilities. The development has confronted the court with a number of problems as to the extent to which consideration of the child’s welfare is to prevail over the rights of his natural parents, but also on the relationship between the legal institutions of adoption on the one hand and other legal procedures. Adoption, offers solace to abused and neglected children whose welfare would have been imperiled if they were not severed from their original homes.

In England, adoption may be used primarily to confer succession and other rights on the adopted persons as for example where a man adopts his wife so that she could succeed to settle property as his child and heir at Law. Islamic Law however, does not recognize adoption in the sense of complete transfer of a child to a new family but have developed the concept of “Kafalah” to provide substitute family care for children.

1.1.0: Background to the Study

Adoption was reluctantly introduced into English law following the recommendation of the Tomlin Report in order to provide legal security for those involved in defacto arrangements which had become increasingly common. The Adoption of children Act 1926 permitted adoption without parental consent on limited grounds and required investigation on cases by a guardian ad litem. It did not ensure the child’s full integration into the adoptive family; inheritance rights in the birth family were not replaced. Over the next half century adoption law was repeatedly under scrutiny and a number of themes can be identified in the three major reports which followed.

Adoption was developed from a private or mater activity to form part of the child care service offered by local authorities and professional adoption agencies. Increase emphasis was placed on protecting children-advertising was controlled; children were fully integrated by the provision of inheritance rights and placement were supervised by local authorities; although the Hurst Committee considered that this was unnecessary and intrusive in cases of step family adoption which were then regarded as a formality. The Houghton Committee took a very different view. Adoption came to be seen as a method of providing homes for children (not merely legalizing existing arrangements) changes were made to facilitate thus. The grounds for dispensing with agreement were expanded by legislation and “freeing for adoption” process was devised so that the giving of agreement could be separated from placement . Houghton also recommended that it should be possible to pay allowances to adopters. Most of the Houghton recommendations were enacted in the children Act 1975 and consolidated with earlier legislation in the Adoption Act 1976. However, implementation of many of the provision particularly freeing for adoption and the introduction of custodianship was delayed until 1980s. By the late 1980s research and practice were showing the value of more open arrangements in adoption and there was growing recognition of the need to involve birth parents in the adoption process and in the interdepartmental Review of Adoption Law was established to consider the need for further reform.

Since 1980s adoption law and practice has been the subject of conflict between Central and Local Government and between politicians and social workers. In what circumstances and on what grounds should children be transferred against their parents’ wishes to new families? Who should be able to become a parent in this way? What, if any thing, should be done for those whom no child is available? Central government has accepted that professional social workers may have relevant experience but stressed the value of common sense approaches to the assessment of the suitability of applicants and placement decisions. It has expected local authorities to develop policies and practices in response to adults’ wishes to be parents. Government guidance portrays adoption as providing a unique opportunity of a fresh start for children and an important child care resource . Despite the children Act 1989 little seems to have been done to support severely disadvantage parents, nor has adoption changed in response to the concerns of those who placed children for adoption in earlier generation.

1.2.0: 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

1.3.0: Focus of Study

This research work will focus on offence of adoption in the Nigeria Legal system, the welfare of the Nigerian child especially the Adopted children, the rights, duties and maintenance from the Adoptive parent to its Adopted child.

1.4.0: Scope of Study

The scope of this research work is limited to the study of the offence of adoption, law and policy in the Nigeria legal system. To achieve this, brief history of adoption will be considered. The process of adoption under the statute, the consent/Agreement to adoption, the consent provision under the statute, and under the Child’s Right Act, 2003 will all be examined.

This shall include the examination of the parties to adoption, vis-avis who may adopt and who may be adopted. The law and policy of Adoption in Nigeria, Welfare of an adopted child and more importantly, the effect of adoption in the Nigeria legal system, are all issues to be determined. Lastly, inter-country adoption, the conflict of law as regards this will be critically appraised.

1.5.0: Methodology

In this research work, two major sources shall be made use of in the realization of the aims and objectives of this study that is primary and secondary source.

The primary source shall include examination and reliance on the existing materials such as Laws, Edicts, Bye-Laws and above all, the Constitution of Federal Republic of Nigeria.

The secondary source shall include existing materials such as books, periodical, article, newspapers and any relevant materials from the internet.

1.6.0: Literature Review

Many textbook writers have stated their general view on adoption both within and outside Nigeria. We also have write-up on the concept of adoption relating to the effect of adoption. CRETENEY S.M and MASSION J.M, dealth extensively on adoption as an aspect of family law, contemporary adoption issues, process of adoption as well as parties to an adoption process have been found to be great ideas to make this work a success.

P.M. Bromley, analyzed adoption by considering the consent requirement required for an adoption process. Who may be adopted, who can adopt, Residence and Nationality as a basis of adoption. He identified the consent of spouse, parental consent and Relation or guardian’s consent as the major requirement for the granting of adoption order.

Nwogugu E.I. evaluated the effect of an adoption both on the adopting parent and on the Juvenile as to succession right.

Accordingly, Alfred B. Kasumu and Jeswald W. Salacuse analyzed in their book, the essence of adoption, freeing for adoption, which involves the court making an order declaring that a child is free to be adopted, where the court is satisfied that the parent or guardian has understood freely and fully the making of an adoption order, save where his consent has been dispensed with. M.D.A FREEMAN gave provision as to the prohibition of certain payment, “That, it shall not be lawful to make or give any person any payment or reward for or in consideration of”

The adoption by that person of an infant
The grant by that person of any consent required in connection with the adoption of an infant
The transfer by that person of the care and possession of an infant with a view to the adoption of the infant; or
The making by the person of any arrangements for the adoption of an infant.

1.7.0: Defination of Terms

1. Adoption:

The creation of a parent-child relationship by judicial order between two parties who are unrelated ; the relation of parent-child created by law between persons who are not in fact parent and child.

2. Custody:

The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected .

3. Child; Children:

Progeny, off spring of parentage. Unborn or recently born human being.

4. Fostering:

This is the exercise of some one’s parental rights, and there is no transfer of any legal relationship. Here the parent retains the legal relationship, while care comfort and upbringing of the child becomes the responsibility of the fostering parents.

It is also define as a means of taking care of some one else’s child for a period of time, without becoming their legal parent.

5. Illegitimate:

The condition before the law or social status, of a child born out of wedlock; condition of one whose parents were not inter married at the time of his birth.

6. Juvenile:

A young person who has not yet attained the age at which he or she should be treated as an adult for purpose of criminal law. “Juvenile” “is a person who has not attained his Eighteenth birthday”

7. Offence:

A felony or misdemeanor, a breach of the criminal laws; violation of laws for which penalty is prescribed. An act clearly prohibited by the lawful authority of the state, providing notice through published laws.

8. Welfare:

Well doing or wellbeing in any respect, the enjoyment of health and common blessings of Life.

1.8.0: Conclusion

Considering the present position of adoption in Nigeria, the Law on it is wholly indigenous. It is neither a statutes of general application in force in England on the 1st day of January 1900 nor was it extended to Nigeria by any of the enabling statutes. This is because as at this date, there was no law on adoption even in England. Initially, adoption was unknown to common law as said earlier, until the Adoption of children’s Act 1873 and was consolidated by the Adoption Act 1958 extended by the Adoption Act of 1964 and 1968 amended by the children Act 1975 and consolidated by Adoption Act 1976.

Also, the fact that legal adoption is only possible in a section of Nigeria makes the propositions inadequate. Children are most valuable and most promising asset we have in this nation, since we can’t afford to ruin the future of these children; investments on them today are investments to secure a better tomorrow.

Chapter Five

5.0.0: 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.

5.1.0: 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.