449 views | Chinemerem Nnawuihe | July 28, 2020
Adoption is a process by which the legal relationship between a child and his natural/biological parents is severed and another relationship is established between the child and a third party or parties.
In other words, it is a process of establishing a new union from a defunct, collapsed or even ascertainable parenthood between a child and another person or persons other than his natural/biological parents.
We will take a review of Adoption under the Statute and under the Customary Law.
Adoption under the Statute
The first known statutory provision for adoption in Nigeria was a Private Member’s Bill which was presented to the then Eastern House of Assembly in April 1958. The Bill was introduced by Mr G.C. Okeya who was representing the then Owerri Division.
Although the Bill was not eventually passed into Law, it, however, served as a starting point for a Legislative/Statutory framework for adoption in Nigeria. It gave rise to a subsequent Bill which was passed into Law as the Eastern Adoption Laws 1965 and came into force on the 20th of May, 1965.
Today, adoption in Nigeria is governed by two Laws – The Child Rights Act 2003 and the Adoption Laws of the various states.
Who can adopt a child under the Statute?
As a general rule, any person may be authorised by the court to adopt a child. However, two persons cannot adopt a child except they are a lawfully wedded couple – a husband and his wife. There’s no other case where more than one person would be allowed to adopt a child.
Also, where a sole applicant is a male, he will not be allowed to adopt a female child unless there are exceptional circumstances which in the opinion of the court will justify the making of the order. The essence of this prohibition is to guard against the danger of sexual corruption of the female child.
This also applies to female applicants; they can only be allowed to adopt a female child unless there are exceptional circumstances which would make the court to order otherwise.
By the provisions of Section 129(c) of the Child Rights Act, a single person who seeks to adopt a child must have attained the age of 35 years.
Under Section 4(1) of the then Eastern Region Law of Adoption and Section 131(1)(a) of the Child Rights Act, any person who seeks to adopt a child must not be less than 25 years and must be at least 21 years older than the child. This also applies to a couple seeking to adopt a child – each of the couples must have attained the age of 25 years.
It is also an essential prerequisite for a person seeking to adopt a child to have a residence or be resident in the state where the child to be adopted also lives.
Under Section 126(1) of the Child Rights Act, a person seeking to adopt a child is required to formally make an application to the High (Family) Court which would be accompanied with the following documents:
Consent as an essential element in adoption
Three types of consent are relevant and they are:
The court may dispense with consent before making an order for adoption if it will be in the best interest of the child to do so.
The court may on an application for an Adoption Order, postpone the determination of the application and make an interim Order granting the custody of the child to the applicant for a probationary period not exceeding 2 years.
The Interim Order may be made on such terms in respect of: Maintenance, Education, Supervision and Welfare of the child as the court considers appropriate but the Order must impose a condition that the child must be under the supervision of a Welfare Officer and must not be taken outside the state without the consent of the court.
Adoption under Customary Law
Under Customary Law, adoption may be effected formally or informally; for instance, among the Esans of Edo State, a meeting of the families of the prospective adopter and the infant to be adopted is held. At this meeting, a formal transfer of parental rights and obligations is effected with the approval of both families. This is often followed by ceremonies performed to initiate the child to be adopted into the new family.
On the other hand, informal adoption is the process by which foster parentage matures with time into adoption. This happens where the child taken into foster parentage stays so long with his foster parents that with time he becomes adopted into the family by ACKNOWLEDGMENT.
Under Customary Law, it is usually an infant that is adopted but in the absence of any rule to the contrary it is possible to adopt an adult but not a married person.
Unlike adoption under the Statute, Customary Law allows only males (no females) of full age to adopt a child – this is because our society is Patrilineal.
Consent under Customary Law
The consent of a child’s natural/biological parents is not mandatory in Customary Law; rather the consent of the person to be adopted is paramount and fundamental in forging the new link especially where the child is capable of expressing an opinion.
In the case of a child of tender age who is incapable of expressing an opinion, consent becomes operational at the attainment of capacity especially under an informal adoption.
Legal Effects of Adoption
Difference between adoption and guardianship