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:
- In the case of a married couple, a copy of their Marriage Certificate or a sworn Declaration of Marriage.
- The Birth Certificate or a sworn Declaration of Age of each applicant.
- Two (2) passport photographs of each applicant.
- A Medical Certificate of Fitness obtained from a government hospital.
- Any other documents, requirements and information the court may require for the purpose of the adoption.
Consent as an essential element in adoption
Three types of consent are relevant and they are:
- Consent of a spouse – where a husband or a wife is a sole applicant for an adoption order, the court may require the consent of the other spouse.
- Parental Consent – where the parents of the child are known and traceable, their consent is to be sought and obtained before an order for adoption would be granted.
- Consent of a person who is not the parent of the child – the court may require the consent of a person who is not the parent of the child but who in the opinion of the court has some rights or obligations in respect of the child arising under an Agreement, Court Order or any other manner.
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
- It severes all parental rights and obligations between the child and his natural/biological parents.
- It establishes the legal relationship of parent and (legitimate) child between the adopter and the child. With regard to custody, maintenance, education and general welfare, the adopted child will be in the same position as if he was born in a lawful wedlock. The child would therefore enjoy every right and privilege which a legitimate child would enjoy including the succession (inheritance) rights of his adopted family and also change of name.
Difference between adoption and guardianship
- Under an adoption, there is an absolute severance of the parenthood of a child from his natural/biological parents and same is vested on the adopter while guardianship only confers Control, Maintenance, Custody and other privileges but doesn’t transfer parenthood.
- An adopted child has the right to inherit the estate of his adopted parent(s) but a child doesn’t have the right to inherit the estate of a guardian.
- The surname of a child doesn’t change under a guardianship but an adopted child assumes the surname of his adopted parent(s).