Brief: Rescission of an Adoption Order of Mazima Raphael Jesse (Infant)

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Main Topic (s): Rescinding An Adoption Order

Date of Judgement: 10th June, 2024

Court: High Court of Uganda

Case Number: (Adoption Cause 16 of 2024) [2024] UGHCFD 28

Judge (s): Justice Celia Nagawa

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Summary Facts of the Case

The petitioner, Calvin Oule, sought to rescind an adoption order issued in his favor alone in respect of Mazima Raphael Jesse, a child he had been fostering with his wife so that he and his wife, Shirley Jemima Oule could jointly reapply for the adoption of the child.

In 2022, Calvin Oule had applied for and was granted an adoption order for the infant by the Chief Magistrate’s Court of Makindye.

The couple alleged before the High Court that they had been misled by their former lawyers to believe that the adoption order applied for by and granted to Calvin Oule solely would apply automatically to his wife as well, and make both of them adoptive parents.

Legal Issues Before the Court

  • Whether to Rescind the Adoption Order?
  • Whether the High Court had jurisdiction to entertain the petition?

Decision of the Court

The High Court rescinded the adoption order granted by the Chief Magistrate’s Court of Makindye.

Justice Celia Nagawa ruled that although the adoption order in and of itself may have been valid, the circumstances of the case were exceptional and it was in the best interest of the child (a paramount consideration in cases involving children) that the adoption order be rescinded so that both husband and wife reapply for joint adoption of the child.

The couple lived with the Child and he referred to both as his parents and it therefore should not be subjected to single parenthood.

The Court emphasized the sensitivity of adoption for it comes with a “permanent change” on the Child and noted that an adoption order will only be rescinded in exceptional circumstances where there a fundamental defect in natural justice has been proven by a petitioner.

Exceptional circumstances must comprise more than a mistake or misrepresentation or serious injustice.

In this case, the High Court found that a fundamental defect had been occasioned on the part of the wife.

The court confirmed its jurisdiction to entertain the application and rescind the adoption order owing to its unlimited Jurisdiction as provided for in Article 139 (1) of the Constitution, Sections; 14, 33, and 39 of the Judicature Act.

Key Quote: “I find that there was a fundamental defect in natural justice on the part of Mrs. Shirley Oule when the petition was filed and to her thinking and of course that of the husband they both believed that the outcome of the adoption would apply to them inclusively. Adoptive parents should feel protected from having their adoption orders set aside due to an injustice, likewise, children should not be subjected to the process of rescission of the adoption order simply for clarity or convenience, or administrative compliances because the process tampers with the child’s emotions, stability and settlement. This Petition is exceptional given the circumstances, it is entirely to secure the best interests of the child to have both parents instead of one moreover living in the same household.” – Justice Celia Nagawa

Law Applied by the Court

  • Constitution of Uganda: Article 139 (1) – unlimited jurisdiction of the High Court including matters of adoption.
  • Judicature Act: Sections 14, 33, and 39 – unlimited jurisdiction of the High Court
  • Children Act: Sections 3, and 46A – The best interest of the Child as a paramount consideration, Court’s power to Rescind Adoption Order
  • Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239
  • AX vs BX & Ors (Revocation of Adoption Order) [2021] EWHC 1121 (Fam)

Counsel on Record

The petitioner was represented by Esther K. Tayebwa of KNT Advocates, Kampala.

Conclusion

This case sets a precedent for the rescission of adoption orders in cases where there is a fundamental defect in natural justice and where the best interests of the child necessitate the recognition of a married couple jointly as adoptive parents.

It implies that a married couple should jointly apply for an adoption order instead of assuming that an order granted to one of them will apply automatically to the other.

Case Download Link



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