Due to the structural effects of globalization, economic instability, poverty, and limited resources, there has over the years been a sporadic increase in the number of juveniles in need of adoption in Nigeria. On the opposite hand, there also exists those that may, as a result of the necessity, get a companion for an only child, stabilize a marriage union, replace a late child, or sustain a specific line of descent, need a child. For these categories of individuals, a nexus is established through the means of adoption. The method of adoption in Nigeria is thus one which permits for people, or couples who would rather be without a child, to assume parentage over a child who might either be of known or unknown origin, while at an equivalent time presenting the adopted child the chance of a secure, loving home throughout childhood and beyond.
Against this backdrop, this paper shall begin by embarking on a scholastic conceptualization of the term ‘adoption’, and then move to deal with its implications within the Nigerian jurisdiction. It shall finally demystify the complex processes involved in adoption in Nigeria as provided for by the applicable statutes.
2.0 WHAT IS ADOPTION?
The discourse of adoption has over the years attracted a plethora of intellectual attention, consequently culminating in the availability of several distinct yet interchangeable scholastic definitions of the concept. The Free Legal Dictionary has defined adoption as “a two-step judicial process in conformance to state statutory provisions in which the legal obligations and rights of a child towards the biological parents are terminated and new rights are created between the child and the adoptive parents.” It has also been further defined as “an order vesting the parental rights and duties relating to a child in the adopters, made on their application by an authorized party.”
It is pertinent, however, to note that although adoption has been listed by the 1989 United Nations Convention on the Rights of the Child as one of the forms of alternative care for children who are temporarily or permanently bereft of family environment, it is very distinguishable from the concept of Legal Guardianship. While adoption will see to the total transfer of rights, including the right of inheritance, from the biological parents, Legal Guardianship is somewhat restrictive and temporary, and the right to inherit from the biological parents is not divested from the child.
3.0 IMPLICATION OF ADOPTION IN NIGERIA
Nigeria did not, until 1965, enact any provisions as regards adoption. This lacuna, in most cases, usually resulted in legal conundrums because when couples took children into their household under the understanding that they were being adopted, such arrangements could not be regarded as legal adoption. Thus, the biological parents of the supposedly adopted child could still take legal actions to assert their natural rights over the child. However, since the enactment of the Eastern Adoption Law of 1965 and the subsequent enactment of the Child’s Rights Act of 2003 (hereinafter referred to as CRA 2003), legal provisions have been made as regards adoption and its consequent implication in the Nigerian jurisdiction. Drawing directly from the provisions of Part XIII of the CRA 2003, the following are the implications of adoption in the Nigerian jurisdiction:
TOTAL TRANSFER OF RIGHTS TO THE ADOPTING PARENTS: Adoption implies that the adopting parents shall acquire all rights concerning the adopted child and can now make unrestricted decisions concerning the life of the child. This would also imply that the natural parents of the child shall forfeit all their rights as regards such a child and cannot in the future proceed to claim any such rights under the law. Examples of the rights acquired by the adopting parents over the child after adoption include; religious rights, the right to appoint a guardian, and the right to consent or give notice of dissent to marriage.
RIGHT TO INHERIT FROM THE ADOPTING PARENTS: By the provisions of S 141 (3) of the CRA 2003, adoption confers on the adopted child, a right to inherit the property of the adopter in the instance of his/her intestacy. In its exact provisions, “…for the purpose of the devolution of the property on the intestacy of the adopter, an adopted child shall be treated as a child born to the adopted.” It is pertinent at this point to note that this same rule also will apply, except explicitly stated otherwise, with regards to relatives of the adopted child. Thus, a reference to the brother of the adopted child would be construed as a reference to the person who would be related to him in that degree if he were the natural child of the adopter and not the child of another person.
ASSUMPTION OF PARENTAL DUTIES AND OBLIGATIONS: The process of adoption also sees a complete transfer of all duties, obligations, and liabilities under the personal law, applicable to the natural parents of the child. This would also translate to mean that all duties in relation to maintenance, supervision, and education of the child would now be performed by the adopting parents, who shall now begin to act as if they were the natural parents of the adopted child.
INVALID MARRIAGE: It bears no need for repetition that after adoption, a legal relationship, just like that between a natural parent and child is established. Pursuant to this, by virtue of the provisions of S 147 (1) of the CRA 2003, marriage between the adopter and the adopted child is prohibited. Also, marriage between the natural child of the person who adopted the child and the adopted child is deemed null and void. In fact, S 147 (2) of the CRA 2003 provides for a punishment of imprisonment for a term not exceeding fourteen years for anyone who in contravention of the above provision marries an adopted child.
4.0 PROCESSES INVOLVED IN ADOPTION IN NIGERIA
The CRA 2003 being the principal Act governing adoption in Nigeria provides for the processes to be followed while adopting a child in Nigeria. It is pertinent to note that as provided for by S 126 of the CRA 2003, an application for adoption in Nigeria should be directed to the High Court (Family) accompanied with 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 the 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.
Upon receipt of an application, the court shall appoint a guardian ad litem to represent the juvenile during the adoption proceedings. The guardian ad litem would be the Child welfare officer in charge of the area where the juvenile resides, or a probation officer, or any other person so qualified as determined by the court. The guardian ad litem appointed would be saddled with the responsibility of conducting an investigation into the suitability of the proposed adopter for the purpose of adopting the child. This report would in the long run form a part of the decision-making process of the court. Upon completion of the application, the court shall finally decide as regards the adoption of the child, having paramount regard to the necessity to guard the welfare, best interests, and safety of the child.
It is axiomatic that the concept of adoption is gradually gaining grounds in Nigeria as efforts by the government and other agencies to promote adoption through the media, personal testimony, social research and other sources keep getting intensified. However, sadly, most states in Nigeria still regulate child adoption through state laws making it nearly impossible to realize the uniformity envisaged by the Act thus creating lacunas which are constantly leveraged on by unscrupulous elements to perpetrate illicit adoption practices. Overtly explored, it is behooving of concerned stakeholders to take targeted steps towards implementing proactive strategies that would ensure a unified system of adoption in Nigeria and curb (to the barest minimum) illicit adoption practices.
To read more on this topic, please follow these links: https://www.harlemsolicitors.com/2019/10/10/distinguishing-between-adoption-and-legal-guardianship/
Harlem Solicitors “Distinguishing between adoption and legal guardianship” (2019) https://www.harlemsolicitors.com/2019/10/10/distinguishing-between-adoption-and-legal-guardianship/ accessed 26 January 2021
Olanike Ojelabi et al “Policies and Policies and Practices of Child Adoption in Nigeria: A Review Paper” (2015) https://www.msn.com/en-xl/?ocid=iehp accessed 27 January 2021
Tajudeen Ojo “Adoption practice in Nigeria: An Overview” (2013) https://iiste.org/Journals/index.php/JLPG/article/view/8922 accessed 25 January 2021
The Free Legal Dictionary “Definition of Adoption” (2005) www.legaldictionary.thefreedictionary.com/adoption accessed 25 January 2021