ADOPTION
Adoption is the process in which the legal relationship between a child and the natural parent comes
to an end and bring about another relationship between a child and a third party who will now be
the parent of the child in question.
In Nigeria, adoption may be effected under two systems:
1. Statues
2. Under the rules of customary law
STATUTORY ADOPTION
Before 1965 there was no statutory provision for adoption in Nigeria. This created a lot of
hardship in determining the legal relationship between persons who wrongly believed that they
adopted a child. Often a married couple took into their household an orphan or a destitute child
from a voluntary organization with the understanding that such child was being adopted. The
unfortunate result was that the natural parent or guardian of such child at a later day asserted their
parental right demanding the return of the right, irrespective of the relationship which has been
developed between the child and the purported adopters. In the absence of any statue providing the
adoption, such arrangement could be best regarded as foster parent (fostering means giving
parental care to a child who’s not ones natural or legally adopted child).
The earliest attempt enacting an enabling legislation were made in 1958 both at the then eastern
house of assembly and by the federal government. In respect of the then capital territory of Lagos.
Subsequently, the eastern Nigeria adoption law 1965 was enacted. This was followed by the Lagos
state adoption law 1968, other states of the federation made similar legislation.
Although none of the northern state enacted any legislation on adoption due to the fact that moslem
law does not recognize adoption. The Child Right Act 2003, makes provision for adoption.
PERSON WHO MAY BE ADOPTED
By section 128 of the child right act, two types of persons may be adopted.
Firstly, a person who is under the age of 18 whose parent or where there is no surviving parent, the
guardian has consented to the adoption.
The other is a child under the age of 18 who is abandoned, neglected or is persistently abused.
Person who may adopt
There are three category of persons who may adopt:
• A married couple may jointly adopt with the authority of a court if one of them has attained
the age of 25.
• A married person who had obtained the consent of his spouse may adopt a child.
• A single person may also adopt if he has attained the age of 35 provided that the child to
be adopted is of the same sex as adopter.
RESTRICTION ON THE MAKING OF ADOPTION ORDER
Section 131 imposes several restrictions on the making of adoption orders. The applicant or in the
case of joint application; one of them should not be less than twenty-five years old and is at least
twenty-one years older than the child. Again the applicant or in the case of a joint application both
or at least one of them and the child should be resident in the same state.
The applicant or in the joint application both of them should have been resident in the state which
the application is made for a period of at least five years. The applicant must be a citizen of Nigeria
and in the case of a joint applicant, both applicant should be citizens of Nigeria.
Section 131 (1)(e) requires that the child must have been in the care of the applicant for a period
of at least three consecutive months immediately preceding the date on which the order is made.
The essence of two requirements is certainly to provide the prospective adopter the opportunity to
be fully acquainted with the child and to enable the bond with each other. The adopter will be able
to decide at the end of this period whether or not to proceed with the adoption.
Finally, the applicants must within twelve months before making the order inform the social
welfare officer of his intention to adopt the child.
THE CONSENT REQUIRED TO MAKE AN ADOPTION ORDER
Before making an adoption order some consent may be required. Where a married person is a sole
applicant, for an adoption order the court may in its discretion demand that the consent of the
spouse be obtained.
Where in the opinion of the court, a person other than parent or relative of a child has a right or
obligation in respect of the child under a court order or under the customary law the court may
require consent of such person.
Section 132(6) gives the court discretion to dispense with any consent required for an adoption
order if it is satisfied that the person whose consent is required can’t be found or is incapable of
giving his consent unreasonably.
JURISDICTION
Which court has jurisdiction in order to file an application for adoption in Nigeria?
1. High court and Magistrate court
• Anambra
• Imo
• Rivers
• Oyo
2. Magistrate court
• Cross rivers
3. Juvenile court: is charged with the responsibility headed by a magistrate court
• Old bendel state
• Lagos state
• Ogun state
The procedure for making an adoption order
A person who wishes to adopt a child, the first thing to do is to make an application and to be
submitted to the court. When the court receives the application, the court will immediately appoint
a “guardian ad litem’’ to represent the juvenile in this proceedings.
A guardian is anyone appointed to protect the interest of another, ad litem means for the law suit.
The guardian ad litem is usually a welfare or probation officer who is used to such situation about
adoption or custody. A guardian ad litem investigate the circumstances relevant to the purpose
of the adoption and report it to the court in writing and whether it will be in the interest of the child
to be adopted by the person who made the application.
After that the court will decide whether the application should be granted or not. In the case of a
favourable application, it will be that the adopter will have the child.
Before the guardian passes the report to the court, the applicant must have made the application
at least three months before. The applicant must have informed the welfare officer or probation
officer of his intention to adopt the child that will form the basis of the guardian ad litem report
because it is a requirement that the juvenile must have been with the applicant for like three months
immediately preceding the application to know whether they will be compatible.
However, in some cases the court might postpone the making of an adoption order and then make
an interim order (temporary order). An interim order is made for a temporary period that will not
exceed two years and that will grant custody of the juvenile in question to the applicant for the
period stipulated.
It will be the following conditions
1. The child must be under jurisdiction of a welfare officer
2. The child should not be taken out of state without the consent of the court
Interim court order is not more than two years and there should always be a welfare officer
who will always check up on the child.
NOTE: An interim adoption order is not the same thing as an adoption order, interim does not
finalise anything and once the year given is over it will be seen like an order was not made at
all.
LEGAL EFFECT OF ADOPTION ORDER
SECTION 141 of the child rights act provides that once an adoption order is being made
• All legal relationship or rights between the juvenile and his or her natural parents are
being brought to an end
• Also, if an adopter dies interstate (that is without making a will) his estate will revolve
as if the adopted child was by him and can inherit his property because anyone that
has adopted has become that person’s child even for the purpose of succession.
• If at the time of the adoption order an order requiring any person to contribute to the
juvenile maintenance under any law in force, such law will seize to exist. That is, it
won’t occur again because the child has now been given to someone else.
• When an adoption order is finalized, the blood relationship is deemed to have come
into existence between the adopter and the adopted child as there can’t be marriage or
any romantic relationship between both parties
SECTION 3(1)(b) of the MCA this will be within the prohibited degree of
consanguinity and it has a penalty of imprisonment of five years.
THE ADOPTED CHILDREN REGISTER
SECTION 142 direct the chief registrar of the family court to establish and maintain an adopted
children register in which shall to be made all entries as may be directed by an adoption order. The
following are the details that must contain the register
1. Date of entry
2. The name of the child adopted
3. Gender of the child to be adopted
4. Date of birth of the child to be adopted
5. Date of the adoption
6. The name, address and occupation of the adopter
The chief registrar is to make sure this index of the adopted children registrar is made and kept in
the register
. in case where an adoption order is revoked the court will transmit the information to the registrar
who will arrange for a change to be effected in the registrar even if an adoption order has been
made it does not mean that the state does not have any business with the child any more, they can
still want to know what is happening to the child from time to time.
ADOPTION UNDER CUSTOMARY LAW
Adoption in customary law exist, but it is not common. However, they are instance on how
adoption is made under customary law.
Who may be adopted
An infant may be adopted under the rules of customary law. An adult can also be adopted where
there is no contrary to this in the custom. But what is not known is the adoption of a married
person under the customary law.
Who may adopt under the customary law
In customary law, only a man with full age and capacity can adopt. This will be regardless of
either the society involved is patrilineal or matrilineal, no situation has aroused under customary
law, where a woman wants to adopt a child.
In terms of consent unlike statutory adoption, it is seen that the consent of the parents is not
generally required or mandatory but the consent of the person to be adopted is fundamental. If
the adopter has more than one wife, it may not be necessary to take the consent of all the wives
but usually men don’t feel entitled to women under customary law.
However, if the adopter has only one wife, logic and common sense states that the consent be
obtained.
Procedure for adoption under customary law
There are two procedures
Formal Procedure
The formal procedure for adoption a child can vary from one place to another. There are two major
approaches to the formal arrangement.
There are:
1. The first one requires that a meeting of the family of the peers who wants to adopt and
the infant to be adopted is arranged and in the meeting a formal transfer of parental right
and obligation is present.
2. This second requirement is common in old bendel state. The second one requires that a
meeting of the elders of the adopter’s family is held. At the meeting, the adopter
announces his intentions to adopt a person and that person he wishes to adopt will become
his heir. Then the formal consent of the family (the family of the adopter). Then when
the consent is given, the family will arrange a ceremony through which the person
adopted can be initiated into his new family.
Informal Adoption
This occurs when an adopter takes into the family, a child of a relative or an orphan and such
child is being brought up like the other children of the adopter. If this act continues for a long
period of time, it will mature into adoption.
Informal adoption does not involves any family meetings or the formal acceptance of the child .
The child ,usually an orphan or the child of a near relative , is received by the adoptive parent
into his home and is treated as his natural child .On his part the child the child treats the parent as
his natural parent . Over some period ,the child is fully assimilated into the adoptive parent
family. A good example is where a widow who has a child re marries and take the child to the
home of her new husband . The child may in due course take the name of the step father and be
assimilated into his family unless his other family members objects . The major problem with
this method of adoption is that it is sometimes difficult to define the status of the relationship
which maybe guardianship or foster parentage. It is only when the child grows up as member of
the adoptive parents family that it can conclusively be said that he has been adopted .
Instance of informal adoption occur in the Yako tribe of Plateau state and alo among the Igbos
and Yorubas . In AKINWANDE V DOGBO, X took the child of his deceased sister into his
household and the child lived there over a long period . During this time , x was responsible for
the childs maintenance and upbringing. The court held that the child was adopted by x under the
customary law.
CONSENT
In the cases of formal adoption , the consent of both families are necessary for adoption. Where
the family of the child is not involved in an adoption meeting, the relevant consents are those of
the prospective adopter and his family. It is significant that the parental consent is not significant
because in most cases of adoption, the child is an orphan or the child of a relative.
LEGAL EFFECT OF CUSTOMARY LAW ADOPTION
Customary law adoption confers on the adoptive parent vis-à-vis the child the same rights and
obligations as if the child was born in lawful wedlock or legitimated.Henceforth,the adopted
child becomes the lawful child of the adoptive parent and will succeed to his estate on intestacy.
However,the adopted child will remain within the prohibited degree of consanguinity in respect to
his natural family.
