UGANDA PENTECOSTAL UNIVERSITY

FACULTY OF LAW

FAMILY LAW 11/DOMESTIC RELATIONS

PARENTAGE

Parentage comes from the word parent and a parent is a caretaker of the offspring in their own species.
Children can have one or more parents, but they must have two biological parents. Biological parents
consist of the male who sired/fathered the child and the female who gave birth to the child, in all human
societies, the biological mother and father are responsible for raising their young ones.

However, some parents may not be biologically related to their children. An adoptive parent is one who
nurtures/ fosters or cares for and raises the offspring of the biological parents but is not actually
biologically related to the child. Parentage means a state of being a parent.

Before coming into force of the Children Act, there were conditions to be fulfilled for parentage. The
unmarried women could claim parentage at any time before the child was 16 years. The woman had to
show that the father had paid maintenance within a period of 12 months and if the husband was out of
Uganda, that he returned within 12 months. According to the case of Waswa-v Waswa (1972) HCB 166,
the Act only applies to illegitimate women and in case of married women, where they were not living
with their husbands.

Currently the question of parentage is covered under PART IX of the Children Act cap. 59 and S. 67
provides for persons who may apply for parentage and they include;

a. The mother of a child;

b. The father of a child;

c. The guardian of a child;

d. The child himself or herself through next of friend,

e. The man alleged to be the father of the child; or

f. The woman alleged to be the mother of the child.

According to S. 68 of the Children Act, an application for parentage may be made;

a. During pregnancy,

b. At any time before the child attains eighteen years of age;

e. Within three years after the death of the alleged father or mother.

However, S.68 (2) thereof gives an exception of applying after 3 years that is, the leave of the Family and
Children Court (FCC). In exercising this discretion court considers the following

The welfare of the child;

The time of knowledge of the alleged father or mother or of the birth of the child, as the case may be, by
the applicant;

The conduct of the alleged father or mother where he or she knew of the birth of the child alleged to be
his or her child, or his or her conduct towards any other person having the custody or control of the
child.

Regarding the proof of parentage, the burden lies upon a person alleging. This is provided for under S. 70
of cap. 59

S. 71. Thereof provides for prima facie and conclusive evidence to be adduced in cases of parentage and
they include;

a. Where the name of the father or the mother of a child is entered in the register of births in relation to
a child, a certified copy of that entry shall be prima facie evidence that the person named as the father is
the father of the child or that the person named as the mother is the mother of the child.

b. Where an order of a court for maintenance has been made against a person under any written law.

c. Where a declaration of parentage has been made by the court under this Part.

d. Where an order has been made by a competent court outside Uganda in any affiliation or similar
proceedings declaring or having the effect of declaring a person to be the father of a child or the mother
of a child.

e. Where a reference, express or implied in a will written or oral, of any person to a child as his or her
son or daughter.

f. Where statement, written or oral, has been made by a deceased person.

g. Confided to a person in a position of authority indicating that the deceased is or was the father or the
mother of a particular child.

In addition to the above, there must be evidence of admission of sexual relationship between the father
and the mother. This has been considered to corroborate the evidence in question. In CT-V-M (1969) EA
(K) 375. Among others, the child's father admitted sexual intercourse but that it was four months before
she conceived that therefore, there was no evidence corroborating the act. Court found out that
evidence of admission for previous act was immaterial fact and corroborated due evidence. However,
court noted that corroboration does not need to rely on the date of conception.

In MOORE-V- HEWITT (1947) KB 831 Court noted that, where there is evidence of a longer period over
the time of conception and there is no evidence that she was involved with other men, this should
corroborate the evidence of the applicant. In this case corroboration was found in a letter in which it was
stated that "I still remember that night" this was enough to corroborate the evidence. In this case Court
was empowered to specifically make an order for blood test.

Physical features are another aspect which corroborates the evidence. The position was held in the case
of Peretorionia-v- Nsabimana (1994) 4 KALR 89, the question of resemblance was brought up and Court
held that evidence of similarity between a child and a parent is admissible but not conclusive.
In proceedings for the declaration of parentage, Court may on the application of any of the parties to the
proceedings or on its own motion make an order requiring any person to give any evidence which may
be material to the question including blood sample for purposes of blood tests S.69(4) of Cap.59.

An order for parentage shall have the effect of establishing a blood relationship of father and child or of
mother and child and, accordingly, the child shall be in the same legal position towards the father or the
mother as a child not actually born in lawful wedlock. However, this shall not confer rights of custody of
the child upon the declared father or mother S.72 Cap.59.

When an order of parentage has been made against anybody, and that person feels aggrieved, he/she
can appeal against an order under S.74 which provides For hierarchy of appeals. The same order can be
revoked in case of sufficient Cause under S.75 Cap.59

CUSTODY

The word custody is not defined under the Children Act, however, it deals with the issues of who has the
right to live with and making important decisions affecting the child. S. 1 of Cap. 59 defines a custodian
to mean a person in whose care a child is physically placed.

In the case of Ali Issa & Fatal Yusufu Mise App. No. 904/1997 Justice Mukiibi relied on the case of
Income Tax-v- Rasikial (1972) EA 150, and Custody was defined in the following words; the word custody
when used in connection with children essentially concerns control and preservation, care of the child's
person, physically, mentally; responsibility for a child in regard to his needs, food, clothing, instructions
and the like".

S.5 DUTY TO MAINTAIN A CHILD art34

S.11 DUTY TO REPORT

38. Offence to remove a child from a place of safety without authority

S.18 A Custody of children.

THE CONCEPT OF WELFARE PRINCIPLE

The Children Act provides for welfare principle under s.3 of Cap.59 and shall be the guiding principle in
making decisions based on the provisions of the Act.

The welfare principle was defined in the case of Walker-v-Walke (1981) ALL ER 207. Where it was stated,
that "welfare principle is an all- encompassing word; it includes material welfare both in the sense of
adequacy of resources to provide a pleasant home and a comfortable state of living and in the true sense
of adequacy of care to ensure good health and personal pride.

S.3 provides that any person to determine any question with respect to-

a. The bringing of a child; or

b. The administration of a child's property or the application of any income arising from it, the child's
welfare shall be of the paramount consideration.

The detailed criteria for determining any question regarding the child's welfare;

a. The ascertainable wishes and feelings of the child concerned considered in the light of his or her age
and understanding:

b. The child's physical, emotional and educational needs;

c. The likely effects of any changes in the child's circumstances;

d. The child's age, sex, background and any other circumstances relevant in the matter,

e. any harm that the child has suffered or is at the risk of suffering:

f. Where relevant, the capacity of the child's parents, guardians or others involved in the care of the child
in meeting his or her needs.

In the case of Re- MC Grath (1892) Ch 143, 148 Lindley L.J said that "the dominant matter for the
consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured
by money only. The word welfare must be taken in its widest sense. The moral and religious welfare of
the child must be considered as well as its physical wellbeing, nor can the ties of affection be
disregarded.

Article 34 of the 1995 Constitution of the Republic of Uganda and S.4 of the Children Act Cap. 59 as
Amended. Provide for the rights of a child

Article 34(1) and S.4 (a) right to live with his or her parent or guardian;

S.4 (b) a child where capable, express his or her view, belief or opinion on any matter that affects his or
her wellbeing;

S.4 (c) Access any information to which a parent, guardian or other person in authority deems critical to
the child's wellbeing;

S.4(d) Be registered after birth;

S.4(e) A name and nationality;

S.4(f) Inherit property where applicable;

Article 34(4) and S.4 (g) Safety, privacy, information and access to basic social services,

Article 37 and S.4 (h) Leisure which is not morally harmful and the right to participate in sports and
positive cultural and artistic activities;

S.4 (i) To use any social amenities or other resources available in any situation of armed conflict or
natural or man-made disasters;

Article 21 and S.4 (j) be treated without discrimination of any kind, irrespective of his or her race, colour,
religion, belief. Age, family status, culture, language, ethnicity, nationality, or social origin, citizenship,
gender, disability if any, political or social opinion, property or any other condition;
S.4 (k) Effective legal aid including representation in all civil, criminal an administrative proceedings;

S.4 (l) Exercise, in addition to all the rights stated in this Act, the rights set out in the United Nations
Convention on the Rights of the Child and the Organization of African Charter on the Rights and Welfare
of the child with appropriate modifications to suit circumstances in Uganda that are not specifically
mentioned in this Act.

Article 3(1) of the African Charter on the rights and welfare of the African child provides that in all
actions concerning children, whether undertaken by public or private, welfare shall be of primary
consideration.

Article 3(2) is to the effect that state parties undertake to ensure that the child's pro Lection and care as
is necessary for his/her parents, legal guardians or other individuals legally responsible for his/her and to
this end shall take all appropriate legislative and administrative measures.

In the matter of Edith Nassazi (An infant) Adoptn Cause No.4/1997 the applicant sought to adopt an
infant and the Court stated inter-alia that all matters relating to children, Court takes the welfare of the
child as of paramount consideration.

Further in the Matter of Okot Lawrence Ikeda & Beatrice Ikeda Misc. Cause 4No.22/1593. The Applicant
sought legal guardianship of the infants aged 12 and 14 years respectively because their parents had
died. Court stated that it is now trite law that the guiding principle in cases of guardianship is the welfare
of the children. That whatever decision is taken by the Court must be in the best interest of the child.

Read: Purikeriya Nakagwa -v- Dominico Kiggundu (1978) HCB 310 Habyarimana -v- Habyarimana

MAINTENANCE OF CHILDREN

Maintenance of children is provided for under S. 76 of cap 59 and it provides that any person who has
custody of a child and who is the mother of the child; the father of the child; or the guardian of the child,
may make an application for a maintenance order against the father or mother of the child, as the case
may be.

An application for maintenance may be made during a subsisting marriage; during proceedings for
divorce, separation or nullity of marriage; during proceedings for declaration of parentage; after a
declaration of parentage has been made. The application may be made also at any time during
pregnancy or before the child attains eighteen years of age. S.76 (3 and 4)

Maintenance shall include feeding, clothing, education and the general welfare of the child S.76 (8)

An order for maintenance can be made and enforced against the estate of the deceased person S.78 (3)
and it is an offence under 81 to misappropriate maintenance money and the grant of custody may be
varied in the best interests of the child.

The order ceases to have effects if the parent looses custody or if the child attains 18 years of age S.82
Cap. 59.

For other orders read ss. 19-36 children Act Cap. 59 and Rule 19-S1-59-2
GUARDIANSHIP

The Act does not define guardianship however, S. 1 (w) Cap.59 as amended defines a guardian to mean a
person having parental responsibility a child.

Guardianship is defined under the Bromley's Family Law, 8th Edition to mean the legal process by which
a person is given parental responsibility of a child.

S.2 (Y) joint guardianship means two or more persons having parental responsibility of a child; Parental
responsibility is defined S. 1 (dd) Cap.59 Amended to mean all rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation to the child; From these definitions, it emerges
that a guardian is a person, other than a parent who has parental responsibility of a child.

S.5 (1) Cap. 59 provides for duties of a guardian that is; education and guidance, immunization adequate
diet, clothing, shelter; and medical attention and any person having custody of a child shall protect the
child from discrimination, violence, abuse and neglect.

S. 6 Cap 59 as amended a guardian shall have parental responsibility

S.9 (1) as Amended, provides for children with disabilities and parent or guardian shall in liaison with a
qualified medical practitioner be responsible for the identification of a child with disabilities or a child
with special needs;

Re-Okot Lawrence Ikeda & Beatrice Ikeda Misc. Cause No.22/ 1993 (supra)

In Re-Maria Nalugya (An Infant) Mise App. No.775/97 The applicant sought to be a legal guardian of
the infant who was his niece. Court stated that its trite law that the guiding principle in cases of
guardianship is the welfare of the child and its interests. Re-Jane Namukasa Misc. App. No.7/1991 Court
upheld the welfare principle and stated that whether a decision is taken by Court must be in the best
interest of the child.

Refer to -Re Prossy Nalugwa (An Infant) Misc. App. No.500/1997.

TYPES OF GUARDIANSHIP

Legal guardianship.

S.43A (1) This Part applies to the guardianship of children in Uganda by citizens of Uganda.

S.43A (2) a person who is not a citizen of Uganda shall not be eligible to apply for legal guardianship.

Re Trevor Mugumu (Child) Family Cause 68/2019/2020 UGHCFD 2/2020 Re Michale cane Icardi, JR and
Laura Jean Icardi Family Cause 2/2016

Procedure for Legal Guardianship S.43B.

Application for legal guardianship of a child may be made in the following ways; by any person above the
age of eighteen years;

Shall be made to the High Court:

Shall be by petition in Form 1 set out in the Third Schedule;

Shall be accompanied by a report of the probation and social welfare officer.

Customary guardianship.

S.43C (4) customary guardianship" means parental responsibility of a Ugandan child by a Ugandan citizen
resident in Uganda in accordance with the customs, culture or tradition of the respective people.

S. 43C. (1) Family members may appoint a guardian of a child in accordance with their customs, culture
or tradition;

Both parents of the child are deceased or cannot be found;

The surviving parent is incapacitated;

The child has no guardian or any other person having parental responsibility for him or her.

A guardian appointed under subsection (1) shall act as trustee in respect of the property of that child.

S.43C. (3) a person who misappropriates the property of a child commits an offence and is liable, on
conviction, to a term of imprisonment not exceeding five years or to a fine not exceeding one hundred
and fifty currency points or both.

Guardian by Agreement

S. 43D provides for appointment of a guardian by agreement.

The parent of a child may, by agreement or deed, appoint any person to be a guardian.

The appointment made under subsection (1) shall not have effect unless the agreement or deed is dated
and signed by the parent in the presence of two witnesses, one of whom must be a probation and social
welfare officer, and the other must be a local councillor at LC I level.

S.43E. provides for appointment of joint guardians.

S. 43F provides for Conditions for guardianship

The court shall before making a guardianship order, satisfy itself that;

There is no known relative or next of kin of the child;

The relative or next of kin are unwilling or unable to take parental responsibility of the child;

All alternative care options available to the child have been exhausted;

The child is suffering or likely to suffer significant harm under present custody

Consideration has been given to the wishes of the child, having regard to the age and understanding of
the child, where in the view of the court, the child is able to understand the guardianship proceedings;

Where the child is twelve years of age or above, his or her consent to the guardianship has been
obtained, unless it is impossible for the child to express his or her consent.

S.43F (2) The court shall before making someone a guardian, satisfy itself that, the person;
Has continuously lived in Uganda for at least three months;

Does not have a criminal record;

Has a recommendation concerning his or her ability as a guardian from a probation and social welfare
officer or other competent authority in Uganda or in applicant's country of residence.

S.43F (3) court shall not make an order for guardianship, unless it is satisfied that the applicant has not
made, given or agreed to make any payment or other reward in consideration of the guardianship.

S.43F (4) The court may dispense with any consent required under this section if satisfied that the
person whose consent is to be dispensed with has abandoned, or deserted the child, cannot be found or
is incapable of giving consent or being a person responsible for the support of the child, has persistently
neglected or refused to contribute to the support of the child.

S.43F (5) the court may, in addition to the report of the probation and social welfare officer require a
local authority, the probation and social welfare officer in the relevant District in Uganda or any other
person to make a report in respect of the guardianship application. Guardianship order.

S. 43G (1) The Court may, if satisfied, make an order for the guardianship of the child.

S. 43G(2) Except where the application is made jointly by spouses, a guardianship order shall not be
made to authorize more than one person as guardian of a child.

Effect and duration of a guardianship order.

43H (1) A guardianship order shall vest parent responsibility of the child in the guardian.

(2) A guardianship order shall remain in force until the child in relation to whom it is issued attains the
age of eighteen years.

(3) The guardianship order shall cease to apply where the guardian dies or is suffering from infirmity of
bod or mind.

Registration of guardianship order. 431 (1) Every person to whom a guardianship order is granted shall
within fourteen days after the grant of the order, register the order with the Uganda Registration
Services Bureau and the Ministry responsible for children affairs and submit a copy of the order to the
National Children Authority.

(2) The registration of guardianship order shall be in Form 2 set out in the Third Schedule.

Revocation of guardianship order.

43K (1) a probation and social welfare officer or a relative of a child under guardianship may apply to
court to revoke a guardianship order.

The court may revoke a guardianship order where;

It is satisfied that the guardianship order was obtained by fraud or misrepresentation;

The guardian has not complied with the conditions issued by the court in respect of the child or the
guardianship;
The guardian has neglected the parental responsibility over a child.

S.43K(3) Where the court revoked a guardianship order, the court shall upon considering submissions by
the Minister responsible for children affairs, place the child under alternative care.

S.43L. Appeals

A person aggrieved by a decision of the High Court under this Part, may appeal to the Court of Appeal.

Guardianship does not terminate the rights and duties of the natural parents of the child. See. Lilian
Matama -v- Rodgers Watanda Misc. App.No.35/1990.

ADOPTION

Adoption is not defined in the Act but it means the process where Court extinguishes the relationship of
a child and its natural parents and creates ties between a child and the adopter. An adopter is an adult of
sound mind who may not necessarily be related to the child.

Adoption provides a home and a family for a child who cannot have the care of his/her natural parents
or for any other reason.

Who can grant Adoption?

S. 44 of Cap. 59 provides that an application for adoption order may be made under the following;

a) to the Chief Magistrates' Court within the jurisdiction where both the child and the applicant are
citizens of Uganda.

b) to the High Court where the applicant or the child is a non citizen.

Requisites For Adoption

S. 45 provides for conditions to be satisfied when both the applicant and the child are Ugandan
nationals;

1. an adoption order may be granted to the sole applicant or jointly to spouses where;

a) the applicant or at least one of the joint applicants has attained the age of 25 years and is at least 21
years older than the child.

b) in case of an application by one of the spouses, the other has to consent in cases of an application by
a spouse to the adoption.

2. Court has power to dispense with the requirement of consent in cases of an application for adoption
by a spouse or one of the spouses, if the spouse whose consent is required;

a) can not be found or is incapable of giving consent

b) where the spouses are separated and living apart and the separation is likely to be permanent
3. An adoption order shall not be made in favor of a sole male applicant in respect of a female child and
vice-versa unless, Court is satisfied that there are special circumstances that justify the making of an
adoption order.

4. An application shall not be considered unless the applicant has fostered the child for 36 months under
the supervision of the probation and social welfare officer.

5. The Act further enjoins the probation and social welfare officer to submit a report to Court that will
assist it when considering the application for adoption.

In Ayat Joy & Mequila Obonyo Adoption Cause No. 52/2005 Justice Kasule at P.3 noted "the report of
the Probation and Social Welfare Officer has to cover a period of 36 months; fostering of the child by the
applicant; S.45(4) Cap- 59 places upon the Probation and Social Welfare Officer, a legal obligation to
show in his report that the applicant has fostered each of the children for a period not less than 36
months under his supervision; that in this case the Probation and Social Welfare Officer reports were
silent as to fostering period, nor did the applicant state that he complied with the requirements as to the
fostering period".

In the same case Court held that in making any decision concerning a child, the Court has to be guided
by the welfare principles and the children rights specified under S.3 and set out in the 1 Schedule,
Children Act Cap.59; that by insisting on the legal requirement of fostering of the child for not less than
36 months, Court was not losing sight of those welfare principles plus rights of children, but actually
enhancing them.

Conditions to be fulfilled by Non-Ugandans/ Foreigners in Adoption

S. 46 Cap. 59 provides for conditions in adoption to be fulfilled in cases where the applicant is a non-
Ugandan and these include;

a) One must have stayed in Uganda for at least 3 years. The rationale behind this requirement is to
enable the applicant to be well acquainted with Ugandan / local culture.

b) Must have fostered the child for 36 months under the supervision of Probation and Social Welfare
Officer.

c) Must not have any criminal record.

d) Must have a recommendation concerning his/her suitability to adopt a child from his country's
Probation or Welfare Officer or other competent authority.

e) Must satisfy 'Court that his country of origin will respect and recognize the adoption if granted.

Consent as a Requirement in Cases of Adoption (S.47)

The consent of parents of a child is necessary except where it was revoked earlier. It is necessary for an
adoption order to be made however, this consent may be revoked at any time before pronouncement of
the adoption order.

Court has powers to dispense with consent in circumstances where the parents are incapable of giving it,
such as insanity, death, terminal illness, parents can not be found etc.
A parent, except with leave / authority of Court shall not remove a child from the care and custody of an
applicant pending the application for an adoption order.

S. 47 (5) provides that where a child is able to understand the adoption proceedings, then his/her view
shall be taken into consideration. A child who is 14 years of age, his/her consent to the adoption shall be
obtained unless it is impossible for him/her to express her wishes S.47 (6).

However, Court can obtain consent of any person who is not the parent of the child but has got rights
and obligations in respect of the child before making the adoption order 5.47(7).

Other Factors Court Considers in Granting Adoption Order S.48

a. That the person required to give consent understands the nature and effects of adoption;
b. That it will permanently deprive that person of parental rights over the adopted child.
c. That Court should put into consideration the welfare of the child. That if the order is made it will
be to the best interests of the child. In Re M (An infant) SCCA No.22/1994 Odoki JSC (as he then
was) held that in adoption proceedings the guiding principle is that the welfare of the child is
paramount.
d. That the applicant has not received or agreed to receive or that no person has agreed to make to
the applicant any payments or other reward in consideration of adoption. In Jesse Bree Mays
(An infant) Adoption Cause No. 43/2006 the High Court held further that as the applicants had
no criminal record and had not received or agreed to receive any payment from any person in
consideration of the adoption, they had all qualities of prospective parent hence entitled to an
adoption order.
e. The applicant has not paid or agreed to pay money or anything to the parents /guardian in
consideration of adoption of the child. S.48 (2) allows Court in its discretion to include any other
terms and conditions it may deem fit.

Effects of Adoption Order

S.50 provides for appeals in case of a dissatisfied party. Any person aggrieved by any decision of a
Magistrates' Court or High Court may appeal to the higher Court against the decision.

S.51 provides for effects of Adoption Order and these include;

a) All rights, duties and obligations of natural parents or guardian with regard to the child are
extinguished.

b) The duties, rights and obligations become vested in the adopter as if the child is a child born in a
lawful wedlock.

c) An adopted child acquires the right to inherit from the adopted parents. However, where the
provisions for inheritance have not been made, he/she can apply for evaluation in terms of the will. The
child looses the right to inherit from its natural parents.

Rights of Disclosure

According to S.55 Cap.59, where a child has attained the age of 18 years or at an earlier age, on the
child's own request or at the discretion of the adopter, the child shall be informed by the adopter of the
identity of his/her natural parents, unless its not in the best interest of the child to do so. It is the duty of
the adopter to inform the child that he/she is adopted as soon as the child is of an age of understanding.

The Similarities Between Adoption and Guardianship

Both guardianship and adoption apply to only children i.e. to persons under the age of 18 years In both
instances, the welfare principle of a child is paramount.

They both require reports from probation and welfare officer.

The jurisdiction for the grant of both guardianship and inter-country adoption is High Court.

In both instances, the applicant assumes parental responsibility over the child.

In both instances, any adult eligible for application apart from the parent can apply for adoption or
guardianship.

Differences between Guardianship and Adoption

Adoption extinguishes parental responsibility of biological parents whereas guardianship only shifts
parental responsibility.

An applicant for adoption should be 21 years older than the child and at least above 25 years whereas
guardianship, any person of 18 years and above is eligible to apply.

Before one is granted an order of adoption he/she needs to have fostered the child for at least 3 years,
this does not apply to guardianship.

Adoption is permanent while guardianship lapses after a child attains 18 years.

When both the applicant and the child are Ugandans in cases of adoption the jurisdiction is Chief
Magistrates' Court while guardianship is in High Court whether by foreigners or locals.

The laws and procedures for adoption are laid down in the statute whereas guardianship hugely relies on
case law.

In adoption the child acquires the right to inherit from his/her adoptive parents and looses a right to
inherit from her biological parents whereas in guardianship the child still inherits from her biological
parents.