ALTERNATIVE CARE FOR THE CHILD
Introduction
The preamble to the United Nations Convention on the Rights of the Child states that the family is the natural environment for the growth and well-being of all its members and particularly children. We have also noted that the existence of the family is the foundation on which the entire structure for the care and upbringing of the child is based. Without the family, much of the law designed for the care and support of the child will collapse. And, indeed, as we will note in the final lecture, there is an essential partnership between the state and the family in relation to the whole enterprise of child care and upbringing. It is in this context that we must locate this lecture which discusses existing options for the care and upbringing of a child who does not have a conventional family to belong to.
14.2 Child Adoption: Meaning
Child adoption is a legal procedure which has the effect of extinguishing existing legal relationship between a child and his or her parents while simultaneously creating another legal relationship between that child and the adoptive parent or parents. According to section 64 of the LCA, when an adoption order is made, the rights, duties, obligations and liabilities including those under customary law of the parents of the child or of the other parent connected with the child of any nature whatsoever shall cease; and the adoptive parent of the child shall assume the parental rights, duties, obligations and liabilities of the child with respect to custody, maintenance and education as if the child was born to the adoptive parent in a lawful wedlock and was not the child of any other person.
Before ending this discussion, a comment must be made on a new form of child adoption introduced by the LCA 2009. Besides the conventional model of child adoption there is now an additional model called open adoption. Section 55 (3) of the LCA states that the term “open adoption” as used in this Act means adoption of a child by a relative. Although it has the same legal effects, open adoption, as will be noted below, has less stringent requirements given that it an adoption by a child’s relatives.[1]
Who May Adopt and Be Adopted?
An application for child adoption may be made jointly by a husband and his wife or by a father or mother of the child either alone or jointly with his or her spouse. Where the application is by the mother or father alone, the other spouse must consent to the adoption. Although the law of adoption does not favour single applicants, there are specific cases where a single applicant is permitted to adopt a child. For example, a single woman who is not a relative of the child may adopt a child if she is a citizen of Tanzania (s 56(1)(d). Also a single male may adopt his son; and with leave of the court, he may also adopt a child, whether male or female, if special circumstances exist to warrant the order (s 56(2) LCA). (give an example of special circumstances)
In the case of an open adoption, an application for an adoption order may be made by a relative of the child, whether married or single and whether male or female. An adoption order shall not be made to authorize more than one person to adopt a child unless the applicants are husband and wife (s56 (4) LCA). It is a requirement that an applicant for child adoption must be 25 years old and at least 21 years older than the child. In the case of open adoption the relative must be at least 25 years old.
It is also provided under s 56(3)(b) that an adoption order shall not be made for a child unless the child has been continuously in the care applicant for at least six consecutive months immediately preceding the date of the application . Section 59(5) further provides that the child must have been continuously in the care and custody of the applicant for at least three continuous months immediately preceding the date of the adoption order. The applicant must also inform the Commissioner of Social Welfare of his or her intention to apply for adoption at least three months before the date of the order. The latter requirement is intended to enable a social welfare officer or local government authority to prepare a social investigation report under s 59(2)LCA.
Provisions relating the residency and citizenship of the applicant are contained in section 56(3) LCA which states that an adoption order shall not be granted unless the applicant and the child reside in Tanzania. However, the residence requirement does not apply where the applicant is a Tanzanian citizen residing abroad and seeking to adopt a child resident in Tanzania.
Adoption by Non-Tanzanians
Section 74 LCA now permits non-citizens to adopt a Tanzanian child if certain conditions are met. They are as follows: i) it must be shown that the child cannot be placed in a foster home or adoptive family or be cared for in a manner suitable for the child’s best interest while the child is in Tanzania, ii) must have resided in Tanzania for at least three consecutive years; iii) has fostered the child for at least three months; iv) does not have any criminal record in his country in his country of origin or any other country; v) has been recommended by his country’s social welfare officer or any other competent authority in his country of permanent residence as being suitable to adopt a child; vi) has satisfied the Tanzania court that his country of origin would recognize and respect the adoption order vii) the Tanzania social welfare officer has undertaken a background investigation and has submitted a report in support of the application; and vii) the court is of the view that it is in the best interest of the child to make the adoption order.
The above conditions aim at ensuring that adoption by non-Tanzanian is a measure of last resort. Hence, only children who cannot find a home or family in Tanzania may be put up for adoption by non-citizens. Furthermore, these conditions are also designed to ensure that the children are in competent and safe hands and are also protected by the legal system of the adoptive parent. It should be noted that Tanzania did not have legal provisions for adoption by non-citizens until 2009 when the LCA was enacted. The establishment of these safeguards was seen as an important protection measure especially in the light of debates and controversies surrounding international child adoption.
Consenting to Adoption
Before the court makes an adoption order, it must be satisfied that consent to adoption has been given by all those who are entitled to consent. There are two categories of persons who must consent. The first category includes persons who have parental responsibilities over a child and the second is by the child, the prospective adoptee. Section 57 LCA states that an adoption order shall only be made with the consent of the parents or guardian of the child. But the court may dispense with such consent if it is proved that the person supposed to consent has neglected or persistently ill treated the child. The court may also dispense with parental consent if the person who is to consent cannot be found, is incapable of giving consent or such consent has been unreasonably withheld.
In addition to the requirement for parental consent the court must be satisfied that the parent or guardian who consents to the adoption fully understands that the effect of the adoption order is to deprive that parent of all rights and obligations over that child (s 59(1)(a)LCA). It is further stated under s 57(3) LCA that where parental consent has been given and the child taken into the care of the applicant, such child shall not be removed from the care of the applicant except with the permission of the court. In granting such removal the court shall have regard to the best interest of the child.
The court may also require the consent of any person if it considers that such person has certain rights or obligations in respect of the child under an agreement or court order. (possibly targeting unmarried fathers see s 43 LCA). Furthermore, where a married person is a sole applicant the court shall require his or her spouse to consent to the adoption before making the adoption order.
The second category of persons who must consent to the adoption is the child if he or she has attained at least fourteen years of age (See s 59(1)(c) LCA). And where the child is less than fourteen years but is capable of forming an opinion about the matter of his or her adoption, the court is required to consider the wishes of that child. Thus the new adoption law recognizes that a child has rights and one of the rights is to participate in key decisions affecting the child (s 11 LCA). Moreover, as noted below, in making an adoption order the court must have regard to the best interest of the child (s59(1)(b), 74(2), (3)(a) LCA).
The Best Interest Principle
The principle of best interest of the child, as noted above in Lecture 11, underpins the entire law of the child. This Lecture however examines the best interest principle and its application to the law relating to child adoption. Reference to this principle is made nine times in various sections relating to child adoption. The references relate, for example, to the fact that an adoption order shall not be made unless it is in the best interest of the child (ss 56(1), 59(1)(b), 74(2), 74(3)(b) LCA). Reference to the best interest is also made in relation to the fact that a parent or guardian who has consented to the adoption may not change his or her mind and withdraw the child from the care and custody of the prospective adoptive parent without permission of the court. And the court’s sanction is to be granted if it is in the best interest of the child. An adopted child may be informed of his family origins when he or she attains the age of 14 years but only if it is in that child’s best interest (s61(1)LCA). The best interest principle is also mentioned in relation to child adoption by non-citizens (s74(2), 74(3)(a),(b) & (d) LCA).
The UN Convention on the Rights of the Child (CRC) states that States Parties to the Convention that permit child adoption “shall ensure that the best interest of the child shall be the paramount consideration” (Art 21). What appears to be missing in the LCA is the extent to which the best interest principle rules over or governs child adoption decisions. The fact that the principle is not given any weighting implies that best interest is one of the factors the court to consider. On the other hand, the repeated reference to the principle when read together with a number of safeguards that have to be observed in the adoption process, suggests that best interest principle is at least a primary consideration in line with Article 3 of the CRC.
The safeguards include the fact that child participation in the adoption process is given weight suggesting that the views of mature children are respected.
Legal Consequences of Adoption
The most important legal consequence of adoption is that, in the first instance, the law dissolves exiting relationship between the child and the child’s natural parents. Then the law creates new relationship of parent and child between the child and the adoptive parents. As stated by s 64 LCA when an adoption order is made, the rights and obligations of the parents (including those under customary law) and those of any other person connected with the child shall cease. Then the adoptive parent shall assume all the parental rights and obligations over the adopted child as if that child had been born in lawful wedlock of the adoptive parents.
Thus the law of adoption plays what in First post was described as the constitutive function whereby new family relationships are created by law between individuals who were previously unrelated. The law of adoption also plays role of legally strengthening existing relationships. For example, a pre-marital child born to one of the parties to a marriage may be adopted in order to strengthen the child’s ties with the natural parent. Where both the natural parent and his or her spouse (who is not the biological parent of the child) decide to adopt such a child jointly, then the child will be legally regarded as the child of the couple as if such child had been born in wedlock (see ss 55(1)(b), 56(2), 56(4)).
Another example of the law seeking to strengthen existing ties between the child and the adoptive parent is child adoption by a relative. The Law of the Child Act 2009 provides for a new category of child adoption called “open adoption” which it defines as “adoption of a child by a relative” (s 54(3) LCA. Under s 55(2) an application to adopt a child may be made by a relative of a child. A relative is defined as a grandparent, brother, sister, cousin, uncle, aunt or any or any other member of the extended family. Where child adoption involves a child who is a relative of the adoptive parent, the primary objective is to focus legal responsibility more specifically upon one family of existing relatives. Hence, although the other relatives of the child continue to relate to the child as if the child had not been adopted, the adoptive family now are legally responsible for that child and no one else.
Adoption Law and Policy
The current law of adoption in Tanzania contains at least three models, reflecting the history and policy of the law. First, there is the closed adoption model dating back to 1942 when the first child adoption law was introduced into British colonial Tanganyika. The closed adoption model was primarily designed for childless couples to secure adoptable children. It has been described as the family centered adoption law. (see BR and UW 1988). It stresses secrecy in the adoption process; makes no provision for the child to know his or her family background nor for the child to consent to the adoption.
The second is the child-centered model introduced in 2009 by the LCA. It seeks to find a family for a needy child. It stresses the best interest of the child principle as the paramount consideration and the child’s right to consent to the adoption is recognized. It requires that the child express an opinion on all decisions affecting him or her. It permits child adoption by non-citizens if the child cannot be locally adopted or placed. It makes provisions for a child to know his or her family background when he or she attains the age of reason provided such disclosure is in that child’s best interest (s 61 LCA). By permitting the child to know his or her family of origin, the law has to a certain extent moved away from closed adoption to a controlled form of open adoption.
The third model is child adoption by relatives, referred to by the LCA as “open adoption” (s 54 (3)LCA). This is the form of child adoption which is fully open in the sense that there is no attempt to hide the child’s family background. Indeed, it is the child’s family background that provides the incentive and rationale for the adoption. Once again, the third model encourages the child’s participation in the adoption process and is clearly a child-centered. Jurisdiction to make orders in the case of open adoption is granted to the Resident Magistrate and District Court. This is intended to facilitate and speed up the process of adoption for this category of applicants and to cut down the legal costs involved. In the case of the first two models, jurisdiction is confined to the High Court. It is hoped that more relatives will use this model to create an additional legal bond to the children of their deceased or living relatives.
All the three models are contained in the Law of the Child Act 2009 showing, as noted above, the evolution and policy of the law of adoption. There are also additional safeguards for the child which did not exist under the old law. They include provision for interim adoption orders (s 60LCA) and a more thorough system of evaluation of applicants whether local or foreign. Indeed, the new law prohibits child adoption by any person who “practices or is of the civil relationship or marriage as the case may be” (s58(3)). Although the latter provision is somewhat vaguely worded, it appears to prohibit child adoption by persons who are in same sex relationships whether these are called civil relationships or marriage.
Foster Care
The term foster parent means a person who is not the parent of a child but is willing and capable to undertake the care, welfare, and maintenance of a child (s 52(2) LCA). Any person above the age of twenty one years may be appointed a foster parent if he or she is of high moral character and proven integrity (s 52(1) LCA). Where a child has been committed to an approved residential home or institution under a care order or supervision order, the social welfare officer in conjunction with the patron or manager of the residential home or institution may make a recommendation to the Commissioner for Social Welfare to place a child with a person who is willing to be a foster parent (s32 (1) LCA). A person who intends to foster a child may apply to be so appointed by the Commissioner for Social Welfare upon the recommendation of a social welfare officer, patron or manager of an approved residential home (s 32LCA).
The foster parents shall have the same responsibility in respect of the child’s maintenance as if he or she were the parent of the child and shall be under a duty to ensure the development of the foster child particularly the child’s health and education. The foster parent is required to maintain contact with the child’s family to inform them of the child’s progress and to work closely with the social welfare officer so that the child may be reunited with his or her original family.
It is clear from the above provisions that a foster parent offers a child a temporary family to belong to when the child is in need of care and protection. Section 16 LCA enumerates 17 grounds when care and protection orders may be issued. Students must note, however, that there is a link between foster care, which is short term, and child adoption which is intended to be permanent. It is provided, for example, in section 24 LCA that a child under a care order or supervision order whose parent, guardian or relative does not show an interest in the welfare of the child within a period stipulated by the court, may be put up for adoption, either with foster parents or place a child in the care of the patron of an approved residential home.
Informal Foster Care
The LCA provides that where a child’s biological parents are deceased, parental responsibility may be passed on to a relative of either parent or custodian by way of a court or any traditional arrangement (s9(4)LCA). Although the problem of children without a family to belong to is increasing in Tanzania, as in other parts of the third-world, it is not in the best interest of a child for the law to sanction, and thus indirectly encourage, the passing on of parental responsibility over a child to a relative by way of traditional arrangement. The reason against such a practice is that such arrangements are informal and do not have the force of law. With such arrangements the child remains unprotected throughout his or her childhood and stands to suffer further losses if the relative entrusted with his or her care dies intestate or leaves nothing for that child upon his death. Research in parts of Tanzania has shown that the ethical foundation upon which kinsmen felt obliged to look after the children of their deceased relatives has greatly weakened (Rwezaura 2002 Value of Child).
It is argued that child adoption by relatives under the system of open adoption is the best way to deal with the care of children left behind by deceased relatives. I am aware that there are a large number of children being cared for by relatives and their best interests are well protected. But the point I am making is that a person looking after a relative’s child does not have parental responsibilities under the LCA but only under “traditional arrangement”. And, as noted above, the traditional ethic has lost its force and for that reason the law must enter to protect the vulnerable children. The best interest of the child is too important to be left hanging on the thin thread of tradition.
Controversial Aspects of Alternative Care
It is widely agreed that the family is the best place for the growth and development of the child. Basing on this premise the law has developed a system of alternative care for children without a family to belong to. As noted above, the child adoption model has proved to be the most popular form of alternative care especially in western societies. But the popularity of child adoption since the end of World War II, together with the falling birthrates in the west, has created a demand for inter-country adoption. There are cultural and economic differences between western societies and non-western societies where prospective babies are sought. The idea of an adoptive parent taking a child out of the country has generated apprehension regarding a number of matters. Questions whether enough is known about the applicants, whether the country to which the child is taken recognizes adoption and will accord the child adequate protection. There is also suspicion connected with child abduction for sale and trafficking. The debate within the child rights community and others over these issues has remained unresolved. In 1995 an international treaty on the Protection of Children and Co-operation in Respect of Inter-country Adoption came into force. Its main objective is to establish safeguards and to ensure that inter-country adoptions take place in the best interest of the child and are consistent with the child’s fundamental human rights. The treaty recognizes that inter-country should only apply to a child who cannot find suitable family in his or her country of origin.
Tanzania has only recently permitted adoption by non-citizens under s 74 LCA. As noted above, a child may be adopted by a non-citizen only if that child cannot be placed in a foster or adoptive family or be cared for in a manner suitable for the child’s best interest while the child is in Tanzania. Moreover, to qualify for adoption, the non-citizen applicant must have resided in Tanzania for at least three consecutive years and must have fostered the child for at least three months under the supervision of a social welfare officer. For some, residence for three consecutive years is viewed as too long. For others, the time is necessary for the applicants to acquaint themselves with the country and its people and for the social welfare department to evaluate the applicant effectively.
[1] Open adoption as opposed to closed adoption is a form of child adoption where contact is permitted (and in some
cases encouraged) between the birth family (including the extended family) and the adoptive family subject to the best interest of the child test. In other words, the decision whether and to what extent contact is to be permitted between the child and his or her birth family is determined by the extent to which such contact will promote the child’s best interest. In principle, therefore, the conventional model which is presumed to be a closed form of child adoption, can be open adoption to the extent that it permits some form of contact between the child and the birth family. In order to understand the new open adoption model under s 54(3) LCA it is essential to go back to its legislative history which is discussed elsewhere.
