Court Judgement: ADOPTION CAUSE NO. 2 OF 2006
LILONGWE REGISTRY
ADOPTION CAUSE NO. 2 OF 2006
IN THE MATTER OF THE ADOPTION OF CHILDREN ACT (CAP.26:01)
AND
IN THE MATTER OF DAVID BANDA (A MALE INFANT)
CORAM : HON. JUSTICE NYIRENDA
: Mr. A. Chinula, Counsel for the Petitioners
: Mrs Malera, Counsel for the Malawi Human Rights
Commission (Amicus Curiae)
JUDGMENT
Guy Stuart Ritchie and Madonna Louise Ritchie, herein after referred to as
the ‘petitioners’, jointly presented before this Court a petition for the
adoption of an infant, David Banda, herein after referred to as the infant.
The petition was determined on the 12th October 2006 whereat the Court made
an interim order giving custody of the infant to the petitioners on the
following conditions:
(i) During the period of the interim order the Guardian Ad-Litem, in
consultation with a social welfare agency that might be identified in the
area where the infant and the petitioners will be staying shall be allowed
to oversee the settlement of the infant and make reports to this Court and
to the Ministry of Women and Child Development at least twice during the
period of the Order.
(ii) The interim Order is to subsist for eighteen months and upon
satisfactory completion of such period the Court will to consider making an
order of adoption.
The interim Order was made pursuant to section 7(1) of the Adoption of
Children Act Cap 26:01. The period of the interim Order has lapsed. It is
now for the Court to consider whether an order of adoption should be made
and in that context it is necessary that I should mention a couple of
developments that have followed the proceedings.
To start with it has become obvious that the case has attracted so much
attention within and without Malawi and in some instances, unfortunately,
misguided and confrontational sentiments have been expressed. Further,
because of the importance of the matter, as we quest to establish what
should be the position today in Malawi with regard to inter–country
adoption, the Malawi Human Rights Commission and the Malawi Human Rights
Consultative Committee applied to be joined as amici curiae. Both
applications were granted, the Court being conscious of reaching out to the
wider opinion especially from human rights institutions because obviously
they have the human rights and welfare of children of this country at heart.
Sadly though, the Human Rights Consultative Committee did not turn up at the
hearing and without any explanation. I have been privileged though, when
preparing for the hearing, to look at the case authorities which the
Committee filed in
support of its position. There is no reason why I should not consider
those case authorities if I found them of guidance.
The background of the matter, without letting out too much and mindful of
the privacy of the infant, his biological parental background as well as
that of the petitioners, is that the infant was born on 24th September 2005.
His mother died seven days after his birth. Other members of the extended
family initially tried to assist the father care for the infant. Apparently
that did not work out. The family was forced to seek help from an orphanage
where the infant was eventually placed. The petitioners identified the
infant at the orphanage resulting into the process that culminated into this
petition.
As in all properly processed petitions for adoption a Guardian-Ad-Litem was
appointed who prepared a report that accompanied the petition. Suffice to
state that the report was detailed and fairly comprehensive. In its
conclusion it described the infant as in dire need of care which the father
or the extended family could not provide even if time was allowed for it.
The same report revealed the opportunity and potential the infant had in
the care of the petitioners. It was also clear from the report that the
petitioners were driven by the desire to rescue the infant from dire
deprivation. In other words the petitioners were not motivated by any
material gain other than the joy of open arms. It was on this basis that
this Court made an interim Order of custody with the conditions outlined
above.
For purposes of completeness in this judgment it is important that I set out
the provisions of the Adoption Children Act Cap 26:01 that are critical for
consideration in this petition some of which I might have cited in the
interim Order. The critical sections are the following set out in full:
S. 2 (3) Where an application for an adoption order is made by two
spouses jointly, the court may make the order authorizing the two spouses
jointly to adopt, but save as aforesaid no adoption order shall be made
authorizing more than one person to adopt an infant.
S. 3 (3) An adoption order shall not be made except with the consent of
every person or body who is a parent or guardian of the infant in respect of
whom the application is made or who has the actual custody of the infant or
who is liable to contribute to the support of the infant:
Provide that the court may dispense with any consent required by this
subsection if satisfied that the person whose consent is to be dispensed
with has abandoned or deserted the infant or can not be found or is
incapable of giving such consent or, being a person liable to contribute to
the support of the infant, either has persistently neglected or refused to
contribute to such support or is a person whose consent ought, in the
opinion of the court and in all the circumstances of the case, to be
dispensed with.
S. 3 (4) An adoption order shall not be made upon the application of one or
two spouses without the consent of the other of them:
Provided that the court may dispense with any consent required by this
subsection if satisfied that the person whose consent is to be dispensed
with cannot be found or is incapable of giving such consent or that the
spouses have separated and are living apart and that the separation is
likely to be permanent.
S. 3 (5) An adoption order shall not be made in favour of any applicant who
is not resident in Malawi or in respect of any infant who is not so
resident.
S. 4. The Court before making an adoption order shall be satisfied–
(a) that every person whose consent is necessary under this Act and
whose consent is not dispensed with has consented to and understands the
nature and effect of the adoption order for which application is made, and
in particular in the case of any parent understands that the effect of the
adoption order will be permanently to deprive him or her of his or her
parental rights; and
(b) that the order if made will be for the welfare of the infant, due
consideration being for this purpose given to the wishes of the infant,
having regard to the age and understanding of the infant; and
(c) that the applicant has not received or agreed to receive, and that
no person has made or given, or agreed to make or give to the applicant, any
payment or other reward in consideration of the adoption except such as the
court may sanction.
The reason why this matter has attracted so much attention is that it is
strongly argued that the laws of Malawi do not allow for adoption in the
circumstances of the present case primarily because of the requirement of
residence in section 3 (5) above. It is therefore necessary that I consider
the wider content of the law in Malawi as it relates to matters of
children’s welfare and adoptions in particular.
What quickly comes to mind are the human rights provisions in our
Constitution purposely there contained to enhance and uphold the rights of
all manner of people in our nation in order to preserve their dignity.
Section 19(1) in particular stresses that the dignity of all persons shall
be inviolable. And in order to preserve the dignity of all persons section
30 of the Constitution in turn obligates the State to ensure the right to
development at every stage and level of humanity in the following manner:
30. (1) All persons and peoples have a right to development and
therefore to the enjoyment of economic, social, cultural and political
development and women, children and the disabled in particular shall be
given special consideration in the application of this right.
(2)The State shall take all necessary measures for the realization of the
right to development. Such measures shall include, amongst other things,
equality of opportunity for all in their access to basic resources,
education, health services, food, shelter, employment and infrastructure.
(3) The State shall take measures to introduce reforms aimed at
eradicating social injustices and inequalities.
(4) The state has a responsibility to respect the right to development
and to justify its policies in accordance with this responsibility.
Beyond these provisions as we should all be aware the Constitution carries
along with it international law in accordance with the international
obligation that we have undertaken and that which we will in future
undertake.
Section 211 of the Constitution provides:
(1) Any international agreement entered into after the commencement of
this Constitution shall form part of the law of the Republic if so provided
by or under an Act of Parliament.
(2) Binding international agreements entered into before the
commencement of this Constitution shall continue to bind the Republic unless
otherwise provided by an Act of Parliament.
(3) Customary international law, unless inconsistent with this
Constitution or an Act of Parliament, shall form part of the law of the
Republic.
Courts and legal commentators have for some time since the coming into force
of our Constitution teased out the implications of section 211. In
particular the question has been whether binding international agreements
referred to in section 211 (b) automatically form part of our law. It is
not here that I shall dwell much on that debate. The position however is
that Malawi ratified the Convention on the Rights of the Child (CRC) in
1991. We are also a party to the African Charter on the Rights and Welfare
of the Child (ACHPR). These Conventions are binding on Malawi by choice.
In other words, Malawi has consciously and decidedly undertaken the
obligations dictated by these Conventions. It is therefore our solemn duty
to comply with the provisions of the Conventions. If for a moment the
argument that the Conventions are not part of our law found favour, then at
least on part of the Court the duty is to interpret and apply our statutory
law, so far as the spirit of the statute could allow, so that it is in
conformity and not in conflict with our established obligation under these
Conventions. And therefore that unless the statute, by its words and spirit
compels our Courts to ignore international laws that is binding on us, the
practice of our Courts is to avoid a clash and the way is to construe the
domestic statute in such a way as to avoid breaching the obligation, See
Mwakawanga v Rep (1968 – 1970) 5 MLR 14 and Gondwe v Attorney General [1996]
MLR 492.
It is also pertinent to always bear in mind the interpretation provision in
our Constitution, section 11, which in part provides as follows:
11. (1) Appropriate principles of interpretation of this
Constitution shall be developed and employed by the courts to reflect the
unique character and supreme status of this Constitution.
(2) In interpreting the provisions of this Constitution a court of law
shall:
(a) promote the values which underlie an open and democratic society;
(b) take full account of the provisions of Chapter III and Chapter IV;
and
© where applicable, have regard to current norms of public
international law and comparable foreign case law.
Chapter IV of the Constitution is the human rights chapter.
Thus far I hope I have meaningfully established two points. The first point
is that it is our singular Constitutional obligation to uphold, binding
international law. Secondly, and by implication, it says to me if a law is
in conflict with our international obligation it runs the risk and the
likelihood of being in conflict with our Constitution and this Court is
called upon to apply such interpretation of the act or law as is consistent
with the Constitution, and by extension, international law, because
applicable international law and the Constitution are supposed to work in
tandem.
It is therefore my considered judgment that in determining this petition I
am compelled to have regard to the two Conventions and other foreign case
law as might be considered appropriate. Of particular relevance in this
regard is Article 3 of the Convention on the Rights of the Child which rests
the case on the paramount consideration in matters concerning children and
provides:
In all actions concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interest of the child shall be a primary
consideration”.
More to the subject of adoption Article 21 provides:
“States Parties that recognize and/or permit the system of adoption shall
ensure that the best interests of the child shall be the paramount
consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by the
competent authorities who determine, in accordance with applicable law and
procedures and on the basis of all pertinent and reliable information, that
the adoption is permissible in view of the child’s status concerning
parents, relatives and legal guardians and that, if required, the persons
concerned have given their informed consent to the adoption on the basis of
such counseling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an
alternative means of child care, if the child can not be placed in a foster
or an adoptive family or can not in any suitable manner be cared for in the
child’s country of origin.
(c) Ensure that the child concerned by inter-country adoption enjoys
safeguards and standards equivalent to those existing in the case of
national adoption”.
The African Charter on the Rights and Welfare of the Child has similar
provisions as above except to stress that inter-country adoption should be
considered as the last resort.
The interim order I made on the 12th October 2006 referred to matters with
respect to which the Court must be satisfied pursuant to section 4 of the
Adoption of Children Act. For purposes of this judgment I should once more
confirm that there is no contrary information brought to my attention for
me to doubt the consent of every person whose consent is necessary in this
petition. It is pertinent however to repeat that the Court had ample
opportunity to examine those of the Banda family as well as the petitioners
and made up its own impression as regards consent. The report by the
Guardian Ad-Litem is also revealing. I might as well mention that the
Malawi Human Rights Commission, in its own right, investigated compliance as
to consent of the extended Banda family in the village where the infant’s
father lives. The infant’s father himself was taken through a thorough
discussion by the Commission as the Commission’s report made available to
the Court manifests. Together these reports established informed consent
with same degree of counseling. There is no doubt in my mind that the
consent is genuinely informed as to the implications of this petition.
The real matter of concern to a lot of commentators who have expressed their
views on this petition, which point has also been discussed by the Human
Rights Commission in its brief, is the requirement of ‘residence’ in section
3(5) of the Act. The bare fact is that the petitioners are not resident in
Malawi and therefore that this is clearly a case of inter-country adoption.
The question for consideration is whether the whole matter then collapses at
that and the Court should not at all proceed to any other consideration.
This approach is advanced with reference to some decided cases from a number
of jurisdictions which have been referred to me such as that of Re Adoption
Application No. 52/1951 {1952} 1 Ch 16; G N and R N an Application [1985]
PNGLR 121 and In re S (an infant) {1997} FJHC 183. The common view in these
cases is that “residence” when used in a provision requires some degree of
permanence. In Re Adoption Application No.
52/1951 it was observed that the word ‘residence’ is a familiar English
word and is defined in the Oxford English Dictionary as meaning “to dwell
permanently or for a considerable time, to have one’s settled or usual
abode, to live in a particular place”.
Quite honestly would I have no quarrels with these dictionary
interpretations if only the circumstances of our children and how best to
provide for their best interest had manuals and dictionary definitions.
What has exercised my mind in all this is whether “residence” is an end in
itself in the context it is used especially bearing in mind that we are
dealing with welfare of children. Or is residence merely a means to an end.
Could it sensibly and maturely be argued that this is a situation where the
means to an end should hold the end itself in bondage. Is residence so
paramount that all else collapses without it.
In the course of determining this matter we engaged in considerable
discussion with counsel before me in trying to understand the mischief for
including the requirement of residence in our laws. There were a couple of
resounding thoughts. The first is to realize that children are an important
asset to any civilized society. Secondly and for the first reason every
civilized society has an obligation to bring up its own children in order
for the society itself to be sustained. And in this case the best place for
the child to experience love and affection and naturally realize its full
potential is the biological family unit. Thirdly realizing that there might
just be cases, and in these days all too many, where it is not possible to
care for and provide for the child with a decent family life and where they
can grow under the love and care of their natural parents, then the option
is to allow for adoption. Fourthly if adoption is going to be allowed
and because of the vulnerable nature of children it is important that the
State Administration satisfies itself that the child will be safe with the
adoptive parents. It then becomes necessary to be assured of the standing
and circumstances of the adoptive parents.
One could only imagine that in 1949 when the Adoption of Children Act was
enacted the real practical way of ensuring the child was safe with the
adoptive parents was for the State Administration to have known such parents
among our society for a while and thereby be able to speak for their
commitment from personal interaction with them. Surely the requirement of
residence was not for the purpose of making sure the child remains in
Malawi. There is nothing in the Act that says when a child is adopted it
can not leave Malawi with the adoptive parents and settle elsewhere. It is
also pertinent to point out that the period of residence is not specified in
the Act. It is not even qualified as “habitual residence” or “permanent
residence” or “ordinarily resident”. Residence can certainly not be equated
to nationality.
The scheme that comes out very clearly is that the requirement as to
residence was and is intended to protect the child, and to ensure that the
adoption is well intended. It is for this reason that I am of the clear
judgment that the requirement as to residence, be it important, is merely a
means to an end. I also have no doubt in my mind that the “end” is the best
interest of the child. I can further safely say it is for this reason that
the National Policy of this country also stresses the best interest of the
children being paramount in matters involving children. More importantly it
is for this reason that as a Nation we undertook the obligations under the
Convention on the Rights of the Child and the African Charter on the Rights
and Welfare of the Children. As a matter of fact the Constitution itself
entrenches and prioritizes the right to development of children. The fact
is the two Conventions support and respond more to the
aspirations of the Constitution. All I can say about the cases that
construed residence as an end in itself is that they could never survive in
our Constitutional order
Thus far it can safely be said the requirement of residence has served its
purpose and that in its absence there are much more weighty considerations
in the welfare of our needy children which in themselves would suffice and
compel a decision in favour of an adoption by those that are not resident in
this country. It is to all these matters that Bhagwati, J. in Lakshmi Kant
Pandey vs. Union of India, AIR 1984 SC 469 said and I quote at some
considerable length because of the persuasive nature of the passages:
“It is obvious that in a civilized society the importance of child welfare
can not be over-emphasized, because the welfare of the entire community, its
growth and development, depends on the health and well being of its
children. Children are a “Supremely important national asset” and the
future well being of the nation depends on how its children grow and
develop. The great Milton put it admirably when he said: “Child shows the
man as morning shows the day” and the Study Team on Social Welfare said much
to the same effect when it observed that “the physical and mental health of
the nation is determined largely by the manner in which it is shaped in the
early stages”. The child is a soul with a being, a nature and capacities of
its own, who must be helped to find them, to grow into their maturity, into
fullness of physical and vital energy and the utmost breadth, depth and
height of its emotional, intellectual and spiritual being;
otherwise there can not be a healthy growth of the nation. Now obviously
children need special protection because of their tender age and physique,
mental immaturity and incapacity to look after themselves. That is why
there is a growing realization in every part of the glob that children must
be brought up in an atmosphere of love and affection and under the tender
care and attention of parents so that they may be able to attain full
emotional intellectual and spiritual stability and maturity and acquire self
confidence and self respect and a balanced view of life withy full
appreciation and realization of the sole which they have to play in the
nation building process without which the nation can not develop and attain
real prosperity because a large segment of the society would then be left
out of the development process”.
The learned Judge went further and said:
“The child shall be protected from practices, which may foster racial,
religious and any other form of discrimination. He shall be brought up in a
spirit of understanding, tolerance friendship among peoples, peace and
universal brotherhood and in full consciousness that his energy and talents
should be devoted to the service of his fellow men”. Every child has a
right to love and be loved and to grow up in an atmosphere of love and
affection and of moral and material security and this is possible only if
the child is brought up in a family. The most congenial environment would,
of course, be that of the family of his biological parents. But if for any
reason it is not possible for the biological parents or other near relative
to look after the child or the child is abandoned and it is either not
possible to trace the parents or the parents are not willing to take care of
the child, the next best alternative would be to find adoptive parents for
the child so that the child can grow up under the loving care and attention
of the adoptive parents. The adoptive parents would be the next best
substitute for the biological parents.
And then he concluded:
“What Paul Harrison has said about children of the third world applies to
children in India and if it is not possible to provide to them in India
decent family life where they can grow up under the loving care and
attention of parents and enjoy the basic necessities of life such as
nutritive food, health care and education and lead a life of basic human
dignity with stability and security, moral as well as material, there is no
reason why such children should not be allowed to be given in adoption to
foreign parents. Such adoption would be quite consistent with our National
Policy on Children because it would provide an opportunity to children,
otherwise destitute, neglected or abandoned, to lead a healthy decent life,
without privation and suffering arising from poverty, ignorance,
malnutrition and lack of sanitation and free from neglect and exploitation,
where they would be able to realize “full potential of growth”. But of
course as we said
above, every effort must be made first to see if the child can be
rehabilitated by adoption within the country and if that is not possible,
then only adoption by foreign parents, or as it is some time called
‘inter-country adoption’ should be acceptable”.
>From my analysis of the law and case authority on inter-country adoption
there are a number of key considerations. The underlying consideration is
that inter-country adoption should indeed be a last resort when all other
options of the placement of a child have failed. I would go along with the
conclusions of the Malawi Human Rights Commissions that the practice should
ordinarily follow the following path:
1. Family-based solutions are generally preferable to institutional
placement.
2. Permanent solutions are generally preferred to inherently temporary
solutions.
3. National (domestic) solutions are generally preferable to those
involving other countries.
This practice would certainly complement the search for the best interest of
the child and guide decisions regarding long-term substitute care for
children once the need for such care has been demonstrated. It is further
acknowledged that because inter-country adoption results in permanent
deprivations of the biological family environment, permanent change in the
child’s ethnic, cultural, linguistic and sometimes religious settling, the
process must be circumscribed by sufficient safeguards and standards.
Article 21© of the Convention on the Rights of the Child above stresses that
where inter-country adoption is considered as an alternative States shall
ensure that the child concerned enjoys safeguards and standards equivalent
to those existing in the case of national adoption. Of course one of the
critical safeguards is for the administrative authorities and the Courts to
be absolutely satisfied about the motive and the entire circumstances of the
adoptive parents even before making any kind of order be it an interim
order of custody.
The reality of the situation in Malawi is that a lot of children are in
dire situation of material deprivation characterized by poverty, lack of
access to essential nutrition, lack of access to education, lack of access
to proper sanitation and lack of access to adequate health care. This is
the unescapable reality in Malawi as in most third world countries. And to
argue that we will soon find adequate solutions for all our deprived
children is to assert a shameless and insolent lie.
The infant in the instant case was among our many materially deprived
children whose only remaining parent was forced, because of his
circumstances, to place him at an orphanage. This was the closest to a
local solution that the only surviving parent and relatives could get. In
seeking to adopt the infant the petitioners are not therefore in the way of
any permanent domestic solution for the infant.
Since my interim order I have received two further reports by the Guardian
Ad-Litem who has personally visited the petitioners in the United Kingdom
where the infant now lives with them. The reports are complemented by
several independent reports of a social welfare agency in the United
Kingdom. I have meticulously read through all the reports. They are very
searching and comprehensive reports about the home and circumstances of the
petitioners and more importantly about the development of the infant. In
all the conclusion is that the infant’s development is excellent and is
assured, physically and mentally. I have no reason to fault any of the
reports.
The Court is most appreciative to the Malawi Human Rights Commission for a
very detailed and illustrative brief from which the Court has found wealth
of guidance. The Court as well as the Malawi Human Rights Commission would
urge Government to expedite the reforms that are underway on the whole
subject of child care, protection and justice where matters of adoption of
children would hopefully be adequately addressed taking into account the
global movement of the law and the reality of the situation in Malawi.
In conclusion and for all that I have discussed, I am left in no doubt that
there is sufficient legal basis and reason, and I am also left in no doubt
that the best interest of the infant would thus be achieved by granting this
petition. Consequently I make a final order of adoption of the infant David
Banda in favour of the two spouses, Guy Stuart Ritchie and Madonna Louise
Ritchie, jointly pursuant to section 2 (3) of the Adoption of Children Act
of the Laws of Malawi.
MADE at the High Court at Lilongwe this 28th day of May 2008.
Andrew K.C. Nyirenda
J UD G E