THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
IN THE MATTER OF THE CHILDREN ACT, CAP. 59 AS AMENDED
ADOPTION CAUSE NO. 073 OF 2021
AND
IN THE MATTER OF A PETITION FOR THE ADOPTION OF NICOLE
ODEKE BY FLORENCE HELLEN ODEKE LUKASI.
BEFORE: HON. LADY JUSTICE CELIA NAGAWA
RULING
1.0 Introduction.
1.1 This ruling relates to a Petition that was filed in this Court by Florence
Hellen Odeke Lukasi (the Petitioner) under Article 139 (1) of the
Constitution of the Republic of Uganda 1995 (as amended), Section 14,
33 and 39 of the Judicature Act, Cap. 13, Sections 3, 4, 13, 14,45, 46
and 48 of the Children (amendment) Act 2016 and Rule 17 of the
Children (Adoption of Children) rules. The orders sought are that;
1. An Adoption of the child Nicole Mwiiza Odeke by the
Petitioner be made under the Children Act, Cap. 59 (as
amended).
2. The Costs of this Petition be provided for by the Petitioner.
3. Any such further and other Orders be made as the nature of
the case may require.
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1.2 The grounds of the petition are set out in the Petition and explicated in
the supporting affidavits sworn by the Petitioner, with accompanying
witness statements sworn by Jeannette Kaitu ( Biological mother of the
child), Mary Stella Oyat (Paternal Aunt of the Child), Julie Abwooli Kaitu
( Maternal Grandmother of the child) and Simon Peter Odeke ( Biological
Father of the Child) filed in this Honorable Court on 30th May, 2023 but
in brief are that;
i. The child is a daughter to known parents; Simon Peter
Odeke and Jeannette Kaitu.
ii. The child is a niece to the Petitioner.
iii. The Petitioner is a sister to the child’s father Simon Peter
Odeke.
iv. The Petitioner is married to Mr. James Lukasi, she born in
Uganda and a citizen of United States of America.
2.0 Representation
2.1 At the hearing, the Petitioner was represented by Mr. Ssemaganda
Simon Moses from M/S Ark Advocates, Nakawa- Kampala.
2.2 Learned Counsel for the Petitioner raised issues for determination by
this Court;
i. Whether this Honorable Court has Jurisdiction to entertain
this matter?
ii. Whether the Petitioner qualifies to be appointed the adoptive
parent of the child?
iii. Whether the Petition is in the best interest of the child?
At the hearing of this Petition, learned Counsel for the Petitioner
submitted on the background of Child, the Petitioner, the biological
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parents of the child, the grandmother and paternal aunt of the child
and exhibited evidence as herein below;
3.0 Background of the Child.
3.1 The Child Nicole Mwiiza Odeke, is 13 years old born on 9th February,
2010, a female Ugandan, born to Jeanette Kaitu and Simon Peter
Odeke. She is a niece to the Petitioner.
3.2 The Biological parents of the child got married in 2009 however, they
did not get along very well leading to their separation in 2013 and
subsequently a divorce.
3.3 In 2006, the parents of the child started new relations with other
persons and gave birth to other children.
3.4 The child spent much of her infancy years with Ms. Julie Abwooli Kaitu
her maternal grandmother in Kira Municipality Wakiso District.
3.5 When time came for the child to start nursery school, her parents
struggled financially but the Petitioner and Ms.Julie Abwooli Kaitu, the
child grandmother always stepped in with financial support to meet the
shortfall in the school dues.
3.6 Currently Nicole is in Primary Seven at Hillside Primary School, Naalya.
3.7 The biological parents and the grandparents of Nicole are all in support
of the adoption of Nicole by the Petitioner.
3.8 The husband of the Petitioner supports the adoption of Nicole by the
Petitioner.
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4.0 Background of the Petitioner.
4.1 The Petitioner FLORENCE HELLEN ODEKE LUKASI is an American
citizens aged 57 years old. She is a daughter of Mr. George William
Odeke and Mrs, Perepetwa Amuge Odeke of Serere District, a biological
sister to Simon Peter Odeke and Mary Stella Adero Oyat. She is married
to James Kwibuga Lukasi and with no children.
4.2 The Petitioner is a resident of Namugongo, Mutalaga Road, Wakiso
District in Uganda and 8735 Imperial Highway No. 7 Downey, California
90242, United States of America.
4.3 Prior to moving to United States of America, she lived and stayed in
Uganda for a period of over 50 years.
4.4 Since 2017 when the child was in Primary One (P.1), she has been
actively involved in her life and took on the responsibility of paying her
school fees, medical care, and other essential needs. According to the
Petitioner, the brother has been struggling financially since 2012. The
child’s father has not had any stable job and source of income despite
his several and committed efforts to find a job.
4.5 It is against that background the she has been assisting the child by
educating her and providing her with the basic needs.
4.6 The Petitioner is ready and willing to take on the parental role and
obligations of the child and believes that this would be in the best
interest of the child. It is the Petitioner’s prayer that this Honorable
Court finds her a fit and proper person to adopt the child.
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4.3. Evidence of the witnesses in regard to the child and the Petitioner,
all on oaths.
Jeannette Kairu (Mother)
4.3.1. Jeannette Kairu is aged 39 years old, a resident of Angel Wing, Kira
Municipality in Wakiso District. She is the biological mother of child.
She proved this to this court by presenting the child’s Birth Certificate
and her National Identification Card issued by National Identification
Registration Authority (NIRA).
4.3.2. She was married to Simon Peter Odeke (biological father to the child)
whom she has since divorced when the Decree Absolute was
pronounced on16th December, 2015. She is currently married with a 6
year old child.
4.3.3. She is unemployed although pre- COVID 19 Pandemic she was in
employment.
4.3.4. The Child’s mother fully understand the meaning and effects of
adoption and she consented to this adoption without any coercion or
undue influence.
Mary Stella Oyat
4.3.5. Mary Stella Oyat is aged 56 years, a resident of Spring Apartments,
Bugolobi, Nakawa Division, Kampala District.
4.3.6. She is both a biological sister of the Petitioner and the biological father
of the child. The child is her niece.
4.3.7. According to her, the Petitioner has too much love for the child and she
has been very supportive, caring, and instrumental in the upbringing
of the child.
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4.3.8. She described the Petitioner as a person with a motherly heart, kind,
and loving.
4.3.9. She is unemployed having previously worked with UGAFOD
Microfinance Limited. She has got children of her own including a
grandchild. She equally confessed that the petitioner has too much love
for the child than she does hence she is sure that she will take care of
her.
Julie Abwooli Kaitu
4.3.10. Julie Abwooli Kaitu is aged 63 years old. A resident of Kira
Municipality, Wakiso District. She is the biological mother of Jeannette
Kaitu, a maternal grandmother to the child and biological mother to the
mother of the child.
4.3.4. It was her testimony that daughter got married to the father to the
child in 2009 and in 2010 they were blessed with a child Nicole. Her
grandchild was a beautiful and lovely girl.
4.3.5 That following the birth of the child, the parents developed marital
challenges including constant fights and misunderstandings that
affected them to rise and care for their child.
4.3.6 Her daughter Jeannette Kaitu lost her job and at the same time the son
in law lost his job and both have not been gainfully employed for almost
a period of three (3) years. Since that time, the Petitioner has continued
to send the child financial support to enable her attend school in
addition to essential needs.
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4.3.7 Mrs. Kaitu has been interacting with the Petitioner ever since the child
was born in 2010. She has found her loving, supportive, caring and
instrumental in nurturing the child.
Simon Peter Odeke
4.3.8 Simon Peter Odeke is 49 years old, a resident of Namugongo, Wakiso
District. He has been off employment for quite some time. Since 2021
he has been volunteering at a company Known by the name and style
“Explore Dubai Limited”.
4.3.9 The child was born at International Hospital Kampala. His marriage
developed challenges and several misunderstandings that gravely
affected them as a couple.
4.3.10 In 2013, he began having serious issues that affected his marriage
and this were exacerbated by his lack of employment or constant
income. In 2014 Jeannette filed a Divorce Petition and on 16th
December, 2015 a Decree Absolute was entered.
4.3.11 He further testified that since 2012 he has been struggling because
he was not in gainful employment. His consent to adopt the child was
not obtained out of duress and he is aware of the meaning of adoption
and its effects.
5.0 Evidence of the Petitioner.
Florence Hellen Odeke Lukasi
5.1 She is 57 years of age, a biodata page of her United States of America
passport are marked “A1”.
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5.2 The Petitioner was born on 13th September, 1965 at Mulago Hospital to
George William Odeke and Mary Perepetwa Amuge Odeke, a Birth
Certificate is marked “B”
5.1.1. She is married to James Kwibuga Lukasi, a marriage solemnized on
24th September, 2010 at Namirembe Diocese. A copy of her marriage
certificate is marked “C”.
5.1.2. The Petitioner previously worked with Home Instead as a Care Giver
located at 10445 Lakewood Blvd, Suite 105, Downey, CA 90241 and
currently works with Disneyland Resort and both Identity Cards are
marked “D1 and D2”.
5.1.3. The Petitioner’s husband is an American citizen and this was exhibited
by presentation of his biodata page of the passport and marked "E”.
5.1.4. A home study was conducted by the Probation and Social Welfare
Officer who recommended the Petitioner as being a fit and proper
person to adopt the child. A Home Study and Probation and Welfare
Officer’s Report is attached marked “F”.
5.1.5. Photographs as proof of visit and interaction with the family of the
child including her father, grandmother, child and other relatives are
collectively marked “G”.
5.1.6. A local record check by the California City of Downey Police check for
the Petitioner and her husband was conducted and marked “H”, and
“I”.
5.1.7. The Child Nicole Mwiiza Odeke was born on 9th February, 2010 at the
International Hospital Kampala her Birth Certificate issued by
National Identification Registration Authority (NIRA) is marked “J”.
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5.1.8. The petitioner presented a letter introducing the grandmother Ms.
Julie Abwooli Kaitu as a resident of Kito Local Council 1 and is marked
“K”.
5.1.9. The biological parents of the child consented to the adoption vesting
all parental rights and obligations in respect of the child in the
Petitioner. The consents to Adopt and the parents National Identity
cards are collectively marked “L”.
5.1.10. The husband to the Petitioner, Mr. James Kwibuga Lukasi equally
consented to the spouse’s adoption of her niece as marked “M”.
5.1.11. The Petitioner is financially sound, in addition to her proof of
employment she presented bank statements for the last 6 months from
December- May 2023 and previously she had presented bank
statements for Chase bank the period of January- June 2021. The
bank statements are collectively marked “N”.
5.1.12. A medical examination was carried out on the child which revealed
that she suffers from chronic allergic rhinitis condition but although
she suffers from the said allergy, she was found to be medically fit, the
said report is marked “O”.
5.1.13. The Petitioner and her husband carried out a medical examination
and they were found in good health. A report from Grace Life Medical
Center is marked “P”.
5.1.14. The residence of the Petitioner was inspected by a one Olufemi
Osibowale (Tel. No. 310-528-8756), it was affirmed and certified that
it is habitable and conducive to reside with the child. The report is
marked “Q”.
5.1.15. The Petitioner presented a recommendation letter, as marked “R”.
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5.1.16. The Alternative Care Panel held a meeting at Emerald Hotel on
29th and 30th August, 2022 and the Probation and Welfare Officer
presented that case file for the child as marked “S”.
5.1.17. The Petitioner has never been convicted of child abuse. A certificate of
Criminal Clearance and a Certificate of Good Conduct are collectively
marked “T”.
6. Written Submissions.
6.1. Mr. Ssemaganda Simon Moses counsel for the Petitioner, filed written
submissions, he based his arguments on the respective written
statements summarized above and cited a number of authorities that
have assisted me in determining this Petition. I have carefully perused
the record and considered the submissions of counsel. I have also read
a number of authorities from this Court on Inter Country Adoption.
7. RESOLUTION OF ISSUES.
7.1. Issue 1. Whether this Honorable Court has Jurisdiction to entertain
this matter?
7.1.1. The Jurisdiction of this petition is provided for under Section 44(1) (b)
of the Children Act, Cap 59 and Rule 17 of the Children (Adoption
of Children) Rules. Section 44 (1) of the Children Act, Cap. 59
provides for Court’s jurisdiction in handling matters of adoptions. It
provides that in cases where either the child or the applicant is not a
citizen of Uganda, the application shall be made to the High Court of
Uganda.
7.1.2. In this application, the child Nicole Mwiiza Odeke is a Ugandan, born
to Jeannette Kaitu and Simon Peter Odeke according to the Petition
and the witness statements of both parents and other witnesses. The
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Petitioner is an American Citizen. This is an Inter country Adoption
and this Court has jurisdiction to entertain this petition. Accordingly,
this issue is resolved in the affirmative.
Issue 2. Whether the Petitioner qualifies to be appointed the
adoptive parent of the child?
7.1.4 Adoption is the creation of a parent-child relationship by judicial order
between two parties who are not related, the relation of parent and
child is created by law between persons who are not in fact parent and
child. See 55 Bryan A Garner, Black’s Law Dictionary, (9th Edn. A.
Thomson Reuters Business, 2009) 50.
7.1.5. An adoption creates a lifelong relationship of parenthood between a
child and the adoptive. See the case of Ayat Joy –VS- Genevive
Chenekan Obonyo & Another, High Court of Uganda, Adoption
Cause No. 052 of 2002.
7.2. Section 45(1) (a) of the Children Act (as amended) provides that ‘an
adoption order may be granted to a sole Applicant or jointly to spouses
where;
a) the Applicant or at least one of the Applicants has attained the
age of twenty-Five (25) years and is at least twenty-one (21) years
older than the child’.
7.2.1. The Petitioner is 57 years old, she is 44 years older than the child, and
she satisfies the requirement for age under Section 45(1) (a) of the
Children’s Act.
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7.2.2. The evidence on record shows that the Petitioner is legally married as
indicated in a copy of her certificate of marriage attached to her witness
statement and petition and marked “C”.
7.2.3. Section 46 (1) (a) and (b) of the Children Act (as amended) provides
that ‘a person who is not a citizen of Uganda may in exceptional
circumstances adopt a Ugandan child, if he or she has stayed in
Uganda for at least one year and fostered the child for at least one year
under the supervision of a Probation and Social Welfare Officer’.
7.3.4. The Petitioner produced evidence vide as proof of residence through an
affirmation and certification of habitable residence marked “Q”
attached to the Petitioner, a local records check by City of Downey
marked “1” and collaborated averments from the witnesses in court.
She has lived in Uganda for more than 50 years over the required
period of one year and she stayed with the child part of this period.
7.3.5. Section 46 (1) (b) of the Children Act Cap 59 as amended requires
that the Petitioner to foster the child for a period of one year under the
supervision of a Probation and Social Welfare Officer.
7.4. Section 46 (c) of the Children Act, Cap 59 as amended provides
that the Petitioner must have no criminal record. The Petitioner
attached a certificate of criminal clearance to her Petition marked “T”.
She attached a Clearance Certificate stating that she has never been
convicted of Child Abuse. The husband of the Petitioner equally
presented a Local records check from his county marked “I”. I find
that the Petitioner has no criminal record.
7.4.1. Section 46 (d) of the Children’s Act, (Supra) provides that the
Petitioner must have a recommendation concerning her suitability to
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adopt a child from his or her country’s Probation and Welfare Office or
other competent authority. The Petitioner presented a letter
recommending her that she meets all requirements for adoption and
that their home is fit and proper for the adoptive purposes of the Child
marked “R”.
7.4.2. Section 46 (2) of the Children Act, (Supra) is to the effect that the
Probation and Social Welfare Officer referred to in subsection (1) (b)
shall be required to submit a report to assist the Court in considering
the application; and the Court may, in addition, require some other
person or authority to make a report in respect of the application. The
Petitioner presented in this court a Probation and Social Welfare
Officer’s report and a recommendation therein that she was suitable
to adopt the child. In addition, the Petitioner adduced evidence of the
Probation and Social Welfare Officer during one of the visits with the
family during her assessment. I therefore find that the Petitioner has
fulfilled the above requirement for inter-country adoption by providing
the said report.
7.4.3. Section 46 (1) (e) of the Children’s Act (Supra) requires that the
Petitioner to satisfy the court that his or her country of origin will
respect and recognize the adoption order. The Petitioner, under
paragraph 13 of her Petition avers that the Government of the United
States of America will respect the order of this Honorable Court.
7.4.4. Section 46 (6) states that inter country adoption shall be the last
option available to orphaned, abandoned or legally relinquished
children, along a continuum of comprehensive child welfare services.
The child Nicole Mwiiza Odeke, both her parents have moved on and
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found new families, however, she is still loved and by her paternal
aunt, the Petitioner who would like to take her on as her own. No other
person has applied to foster or adopt the Child.
7.5.5. Court therefore finds that the Petitioner has duly satisfied the legal
requirements under Section 46 of the Children Act, Cap 59.
7.5.6. The Petitioner having confirmed that her home country the United
States of America will respect this Adoption order granted by the
Courts in Uganda and having not received or agreed to receive any
payment or reward in consideration of this adoption, Court is satisfied
that this adoption order is not made in vain and is not in pursuit of an
illegal transaction.
7.6. According to Section 47 (1) of the Children Act Cap 59, the consent
of the parents of the child, if known, is necessary for the adoption order
to be made; but the consent may be revoked at any time before the
pronouncement of the adoption order. The parents of the child
consented to the adoption of their child, they attended court, and they
worked together with the Probation and Social Welfare Officer and the
Alternative Panel. The consents are marked “L”.
7.7. The maternal grandmother and paternal aunt of the child Nicole Mwiiza
Odeke on 15th October, 2021 signed a consent to an Adoption Order
stating that being the maternal grandmother and paternal aunt of the
child, they give consent to the grant of the adoption by the Petitioner.
7.8. It is this court’s finding that the Petitioner has satisfied all the legal
requirements for inter country adoption of children.
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Issue 3. Whether the petition is in the best interest of the child?
8.0 It is trite law that when making decisions concerning children, the
Welfare Principle is paramount. The determination whether the
prospective adopter is a suitable parent is based on a finding that an
adoption is in the best interest of the child. The law requires the focus
to be placed on the best interest of the child, rather than the interests
of the biological parents, adoptive parent(s) or any one else.
8.1.Section 48 (1) (b) of the Children Act (Supra) is to the effect that the
adoption order if made will be for the welfare of the child, due
consideration being given to the wishes of the child having regard to his
or her age and understanding.
8.3. Section 3 of the Children Act Cap 59 (Supra) further provides that;
the welfare of the child shall be of paramount consideration whenever
the state, a court, a tribunal, a local authority or any person determines
the question in respect to the upbringing of the child, the
administration of a child’s property, or the application of any income
arising from that administration.
9.0. In Re Mcgrath (infants) 1893 Ch 143 at 148, Lord Justice Lindley
stated that “The welfare of the Child is not measured by money nor
physical comfort only. The word welfare must be considered in the
widest sense. The moral and religious welfare of the child must be
considered as well as its physical wellbeing. Nor can ties of affection be
ignored.”
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9.1 The term welfare was defined in the case of Nakaggwa Vs Kigundu
(1978) HCB 310 to mean that all circumstances affecting the well-being
and upbringing of the child have been taken into account and the Court
ought to do what a wise parent acting on behalf of the Child ought to
do.
9.2 In the instant application, the child is in between families,
grandmother, the petitioner and parents who check on her. She needs
a place to call home, where she will be raised and taken good care of
like any other child of her age. The child was present in court and
seemed to understand the proceedings and her facial expression
communicated a lot. Since the Petitioner has been in her life, it does no
harm for her to raise her up as her own child.
9.3 The Petitioner has known the child for thirteen (13) years and has
fostered her for a period of over 1 year. The child has bonded with the
Petitioner and it is in the best interest that she should have loving
caring parents, a home and a family which is willing to meet her social,
emotional and developmental needs. A family that will explore her
potential to thrive and grow into an independent and self-reliant lady.
9.4 The Petitioner is financially sound to cater for the child. She is employed
with Disneyland Resort. The Petitioner is therefore able to look after the
Child.
9.5 The Petitioner is free from any communicable, physical or mental
impairment that could endanger the child. The child will therefore be
raised in a safe and healthy environment.
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9.6 This Court also acknowledges the fact that the Petitioner is not only
able but willing to take care of the child. The Petitioner will enable the
child to access her basic needs.
9.7 It’s in the child’s best interest to have parents. I therefore find the
placement of the child in permanent custody of the Petitioner to be in
her best interest.
9.8 In the circumstances and for the forgoing reasons, I find that this
Petition has met the conditions for grant of an Adoption Order. I am
satisfied that the Petitioner has complied with the legal requirements to
adopt the child, and that the adoption is in the best interest of the child.
10 Conclusion
10.1 The Petitioner has met all the conditions as provided for under Section
48 of the Children Act, (Supra) and I hereby allow this Petition.
10.2 Accordingly, therefore this petition is granted in favor of the petitioner
with the following orders; that:
a) The Petitioner FLORENCE HELLEN ODEKE LUKASI is hereby
appointed the adoptive parent of the child NICOLE MWIIZA
ODEKE.
b) The Parental rights of all others in respect to the child NICOLE
MWIIZA ODEKE not previously terminated, are hereby
terminated.
c) The Petitioner FLORENCE HELLEN ODEKE LUKASI shall have
exclusive care, custody and control of the child, NICOLE MWIIZA
ODEKE free from claims or hindrances of all others, and shall be
held responsible for her maintenance, education and support.
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d) The Registrar General of Births and Deaths is hereby directed to
make an entry recording this Adoption in the Adoption Register
and submit a copy of the order to the National Children Authority.
e) This registration shall be within 14 days from the grant of the
Order.
f) The Petitioner FLORENCE HELLEN ODEKE LUKASI is hereby
authorized to travel with the child NICOLE MWIIZA ODEKE to
United States of America.
g) This Adoption Order shall be furnished to Consular Department
in the Ministry of Foreign Affairs.
h) Costs of this petition shall be met by the Petitioner.
I so Order.
Dated, Signed and Delivered by email this 8th day of June, 2023.
_________________________
CELIA NAGAWA
AG. JUDGE
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