Abstract
Adoption can be defined as a process where a child who is not one’s own is taken legally and brought up as such person’s child, while Guardianship involves the appointment of a guardian to a child who has the responsibility of protecting and safeguarding that child. A guardian is usually appointed to only minors. These two concepts are distinct in nature and have different legal implications under the law. This paper seeks to examine the adoption and guardianship of a child under Nigerian laws, covering the legal effects of both concepts.
Deborah Umoh
INTRODUCTION
According to Black’s law Dictionary, Adoption is defined as the taking and receiving as one’s own, that to which he bore no prior relation, colourable or otherwise and a Guardian is one who legally has the care and management of the person, or the estate, or both, of a child during its minority. There are several reasons why a child may be adopted or appointed a guardian. Usually, children who are put up for adoption or are in need of guardians have been, abandoned, ill-treated or are orphans. It is necessary to know why there is a need for children to be adopted or appointed guardians in appropriate circumstances and the legal implications thereof. It should be noted that when decisions are made concerning adoption and guardianship orders by the court, paramount consideration is given to what would be in the best interest of the child.
WHAT IS ADOPTION?
Adoption is the process whereby the legal relationship between a child and his biological parents is severed and reestablished between the child and his adoptive parents.[1] It is the assumption of the full legal and parental responsibility of a child. It is important to note that adoption is a legal process and must be carried out in accordance with the provisions of the law or else such adoption will not be legally recognized. It is a permanent, lifelong commitment which brings an end to the parental rights and responsibilities of the child’s biological parents and in turn vests these responsibilities in the adoptive parents.
A child once adopted becomes the natural child of the parents and is treated the same way the parents’ biological child would also be treated. There are different reasons why people adopt children, factors owing to infertility, loss of a child, wanting to care for a deprived child, amongst others.
ADOPTION UNDER STATUTORY LAW
Nigeria had no statutory provisions regarding adoption up until 1965, when the eastern Nigeria adoption law was passed. Prior to this legislation coming into force, there was a lot of difficulty faced by couples who wanted to adopt, as they were not legally recognized as the parents of the purportedly adopted child and this allowed the biological parents of the child to come in at a later date and assert their parental rights over the child. As there was no legislation in force at that time describing such an act to be adoption, it was at most regarded as Guardianship or Fostering.
On 20th May 1965, the Eastern Nigeria Adoption Law was passed into law, and became the first legislation in Nigeria that provided for Adoption. Lagos state subsequently passed its own adoption law, Lagos State Adoption Law 1968, other states subsequently followed.[2] Presently these state laws are what govern adoption in their respective states, as the rules differ from state to state. The Northern part of Nigeria is the only area without a legislation for adoption, as the Muslim religion which is the most predominant religion in the North forbids adoption.[3] The Child’s Rights Act 2003 was enacted on 31st July 2003 and is also a legislation that provides for adoption in Nigeria. The Child’s Rights Act reflects the provisions of the Adoption Laws in several states as well as the Child’s Rights Law which has been enacted in these states.
ADOPTION UNDER CUSTOMARY LAW
The cultural practice of a child being raised by someone who is not the child’s biological parent, in accordance with the customary laws of the family’s community’s, is known as customary adoption. Legal adoption, on the other hand, is granted by the Court.[4] Adoption under customary law can either be formal or informal. It is formal where a meeting is held between the representatives of the families involved in the adoption process, then the parental rights and responsibilities are transferred to the adoptive parents, and it is sealed by the agreements of the parties.[5] An informal adoption on the other hand requires no formal meeting of the families involved, the child intended to be adopted is received by the adoptive parent, who in most cases is a relative and is then treated as such persons own child.
WHO MAY ADOPT
According to section 129 of the Child’s Rights Act, the following individuals can adopt:
- A couple, where one of the spouses is at least 25 years old and 21 years older than the child.
- A single person if he/she has attained the age of 35 years provided the child to be adopted is also the same sex as such person,
- A married person who has obtained consent of his/her spouse.
According to section 132 of the Child’s Rights Act, the applicant must be a Nigerian citizen and in the case of joint applications, at least one of the applicants or both, must be residing in the same state as the child. Nigerian law generally prohibits same sex marriage and as such couples of the same sex cannot validly adopt a child in Nigeria. These provisions are also similar to most state laws on adoption.
The Adoption laws of Ogun, Oyo, Edo and Delta States prohibit the adoption of a child by the parents or relations of the child, but states like Cross River, permits the adoption of a child by his/her relations.
WHO MAY BE ADOPTED
According to the adoption laws of Lagos state, only Juveniles can be adopted, and a Juvenile is a person under the age of seventeen years who is abandoned, or whose parents and other relatives are unknown or cannot be traced after due enquiry certified by a juvenile court.[6] Also the adoption laws of Lagos state allow for the parents of a child above one year to be voluntarily put up for adoption, while the adoption laws of Ogun, Oyo, Edo and Delta states allow only juveniles whose parents and relations are unknown or cannot be traced to be adopted. According to section 128 of the Child’s Rights Act only children who have been abandoned, neglected. or persistently abused or ill treated, and there are compelling reasons in the interest of the child why he should be adopted, can be adopted.
THE LEGAL IMPLICATIONS OF ADOPTION
The main legal effect of adoption is that it vests all the parental rights and responsibilities on the adoptive parents and the biological parents of the adopted child are no longer seen as the child’s actual parents, and as such the adopted child is treated as the natural child of the adoptive parents. As a result of the severance of rights and responsibilities of the biological parents over the child, they are not required to provide or maintain such child once he/ she has been adopted. This is why adoption is seen as a lifelong commitment and is permanent.
The adopted child has a right to inherit from the adoptive parents and can no longer inherit from the biological parents as he is not legally their child anymore.[7] The child takes the last name of the adoptive parents and has all the rights and privileges as though he or she were the natural child of the adoptive parents.
As a result of being adopted, the child cannot validly marry any of the children of the adoptive parents, as they are all regarded as siblings and are related, neither can any of the adoptive parents marry the child which is seen as an offence punishable by law with a term not exceeding fourteen years.[8]
GUARDIANSHIP
Guardianship can be defined as the fiduciary relationship between a guardian and a ward or other incapacitated persons, whereby a guardian assumes the power to make decisions about the ward’s person or property.[9] Usually, the parents of a child are his/her initial guardians, but the court can grant the role of a guardian to another person upon an application for guardianship by that person.
According to section 83 of the Child’s Rights Act, the parents of a child are the child’s guardians and in the event that one of such parents die, the surviving parent becomes the guardian of the child, the surviving parent who has guardianship over the child can appoint someone to be the guardian of the child by deed, in case such surviving parent dies. Also, where the parents of the child are seen to be unfit to be guardians, jointly or severally, the court shall on the application of a family member or appropriate authority, appoint a person to be a joint guardian with the parent or parents.
A guardian is usually appointed by the court to a child who has no parent with a parental responsibility over such child when an application has been made, although the court can also make the order notwithstanding the fact that no application has been made. It is important that the consent of the guardian be gotten, in order for the appointment to become effective.
Guardianship is usually brought to an end by, death, either of the guardian or the child, by the child attaining the age of majority, the marriage of the child, a termination by a court order, by an application to the court by the natural parent of the child who has a parental responsibility to the child or on application by the child with leave of court.[10]
THE POWERS OF A GUARDIAN AND ITS LEGAL IMPLICATIONS
A guardian usually has all the rights and responsibilities of a parent and assumes parental responsibility over that child, but this does not mean that the child’s biological parents become divested of all their rights and responsibilities towards the child. According to section 277 of the Child’s Rights Act, parental responsibility can be defined as:
- all the rights duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child and his property; and
- the rights, powers, and duties which a guardian of the estate of the child appointed, before the commencement of this Act to act generally would have had in relation to the child and his property, and includes, in particular, the right of the guardian to recover or receive in his own name or the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover.
The guardian would be responsible for the care and maintenance of the child. The guardian would have to provide for the child’s support, protection, education and would also be liable for the child’s acts in appropriate circumstances.[11] According to section 87 of the Child’s Rights Act, a guardian shall have all such powers over the estate, as the case may be, of a child as a guardian appointed by will or otherwise by virtue of the rules of common law, equity, or appropriate personal law.
The guardian of a child also has the power to appoint another person as the guardian of the child in the event such guardian were to die. In the case where a guardian acts as such jointly with the parent or parents of the child, the guardian may apply to the court for custody of the child, if he/she thinks the parent or parents are unfit to take care of the child and make him/her the sole guardian of the child.[12] Under guardianship, the child can still inherit property from his/her natural parents, unlike in the case of an adoption where that right would have been extinguished and the child would still bear the name of his/her natural parents and not that of the guardian.
CONCLUSION
Adoption and Guardianship are vastly different concepts with different implications under the law. Individuals seeking to either adopt or assume the responsibility of a legal guardian over a child, should ensure that they are in the best position to take care of the child and meet their needs, different laws have been put in place to ensure that the child never suffers, and all his/her rights are still maintained.
FOOTNOTES:
[1] Isochukwu, “Adoption” (Isochukwu Ltd December 31, 2017) <https://isochukwu.com/2017/12/31/family-law-2-9-adoption/> accessed July 12, 2021.
[2] E. I. Nwogugu, ‘Family Law in Nigeria’ (3rd Edition HEBN Publishers PLC 2014).
[3] Ajuzie C. Osondu, ‘Modern Nigerian Family Law and Practice’ (Printable Publishing Company, 2012)
[4] Ngozika U. Okaisabor“Adoption, Guardianship And Fostering: Practice And Procedure -Customary Law Perspective” () <https://nji.gov.ng/wp-content/uploads/2019/04/ADOPTION-GUARDIANSHIP-AND-FOSTERING.pdf> accessed July 11, 2021.
[5] E. I. Nwogugu, ‘Family Law in Nigeria’ (3rd Edition HEBN Publishers PLC 2014).
[6] Section 1 Adoption Laws of Lagos State
[7] Section 141(3) Child’s Rights Act 2003
[8] Section 147(2) Child’s Rights Act 2003
[9] Black’s Law Dictionary, Eighth Edition, P. 726
[10] Ajuzie C. Osondu, ‘Modern Nigerian Family Law and Practice’ (Printable Publishing Company, 2012)
[11] Ajuzie C. Osondu, ‘Modern Nigerian Family Law and Practice’ (Printable Publishing Company, 2012)
[12] Section 83(5) Child’s Rights Act 2003
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