By Temwani Tembo
ADOPTION
Adoption is the legal process in which a child’s legal rights and duties towards his natural or biological parent are terminated and similar rights and duties towards adoptive parents are assumed (Blacks’ Law Dictionary). The Children’s Code Act (Act No. 12 of 2022) does not define adoption but provides the meaning of an Adoption Order as the vesting of parental responsibility on a person taking legal responsibility of a child.
WHO MAY BE ADOPTED?
An Adoption Order is obtained for the adoption of a child. Section 2 of the Children’s Code Act defines a child in accordance with the definition found in the Constitution under Article 266, of which a child is a person below the age of eighteen years. Furthermore, Section 199 of the Children’s Code Act provides that a child may be adopted if:
• the child is an orphan and has no guardian;
• the whereabouts of the child’s parent or guardian cannot be established after due diligence for a period of six months;
• the child has been deliberately abandoned for a period of three months;
• the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected;
• and the child is resident within the Republic, whether or not the child is a citizen.
WHO MAY ADOPT?
Section 200(a) of the Children's Code Act stipulates restrictions on the granting of adoption orders. Adoption orders will only be granted to:
• a sole applicant who has attained the age of twenty-five years and is at least twenty-one years older than the child;
• a sole applicant who has attained the age of twenty-one years and is a relative of the child;
•two spouses jointly, where one of the joint applicants has attained the age of twenty-one years and is a relative of the child;
• or a stepmother or stepfather of the child.
In special circumstances, however, the court may grant an adoption order only when specific circumstances justify it. The following groups of people need justification of special circumstances before an order is granted, as provided for in Section 200(2) of the Children’s Code Act:
a sole male applicant in respect of a male child; a sole female applicant in respect of a female child; or joint applicants, if they are not married to each other.
There is also a class of people who are prevented from being adoptive parents. Section 200(3) of the Children’s Code Act states that a single man, in respect of a female child, and a single woman, in respect of a male child, cannot be adoptive parents. Also, a person from whose care of a child has been removed under the Act; a person excluded from taking care of a child under the Act; a person convicted and sentenced to a term of imprisonment exceeding six months without the option of a fine; and a person who has been convicted of an offence under this Act.
PRINCIPLES TO BE ADHERED TO DURING THE ADOPTION PEOCESS
Section 197 of the Children's Code Act provides the principles that shall apply in matters relating to adoption, the paramount consideration being the best interest of a child. The court in the case of Rohanna Myra Debrah Petersen v. Roland Homan ZMHC 325 [2020] held that, in order to come up with an order in the best interest of a child, one must evaluate and balance all the elements necessary to make a decision in a specific situation for a specific individual child or group of children.
The same section provides that adoption should only be considered when all measures to maintain the child with their biological parents have been exhausted. This is because it is considered to be in the best interest of a child to be raised and to live with their biological parents, as was stated in the case of Re O (Custody: Adoption) [1992] 1 FLR 77, CA, where it was held that only where the father or mother is considered unfit - so that the child's moral or physical health would be endangered - should other options outside the family be considered.
There must also be an exhaustion of national mechanisms prior to the making of an inter-country adoption. Furthermore, poverty alone is not considered to be a justifiable reason to qualify the obtaining of an adoption order.
REQUIREMENT OF CONSENT
Section 205(3)(a) of the Children's Code Act provides that consent needs to be obtained from the child's parent, guardian, or any person having parental responsibility before an adoption order is issued. This was discussed in the case of Re V (Adoption Consent) [1986] 1 All ER 752, CA, where it was stated that consent is a necessary requirement in order for adoption of a child to happen. Failure to do so renders an adoption order unenforceable.
THE EFFECT OF AN ADOPTION ORDER ON PARENTAL RIGHTS
Once an adoption order is granted, the rights and obligations of the biological parents over the child cease, and the adoptive parents assume all responsibilities, as stipulated by Section 237 of the Children's Code Act.
CONCLUSION
An adoption order is enforceable when its regulatory statute, being the Children's Code Act, is complied with, as the Act not only specifies the procedure but the qualifications for adoption. Furthermore, the legal consequence of an adoption order is that the adoptive parents assume all rights and obligations over a child to happen. Failure to do so renders an adoption order unenforceable.
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About the Author
Temwani Tembo is a Fourth Year Law Student at the University of Zambia and currently serving as Legal Editor for Legal Aid Initiative