Sep 6, 2017

Legal Arrangements For Children Without Parents Or Guardians In Nigeria| Temitayo Ogunmokun

The care, custody and welfare of children (under the age of 18) in Nigeria are strict functions of an intricate regulatory framework comprising institutions and laws; beginning quite naturally with the Constitution of the Federal Republic of Nigeria 1999, as amended. Section 17(3) (f) of the law particularly imposes a non-actionable obligation on the Nigerian Government to ensure that children and young persons are adequately shielded from exploitation, moral and material neglect.

This protection is also deemed an inherent responsibility of parents and therefore, it is not uncommon to see our substantive criminal laws impose an obligation on parents to avail their children or wards with basic life needs as well as prescribe punishments for failure to intentionally make such provisions (See sections 300 – 305 of the Criminal Code Act). In the absence of parents or guardians on which to foist these obligations, the law provides for a number of alternative measures to protect children that would otherwise be deprived. The same basic principles generally apply in all Nigerian states with minimal disparities. For the purpose of contextual streamlining however, the relevant operational framework in Lagos State will be examined.
When a child is without a parent or guardian, the Lagos state government is expected to take custody of the child and facilitate his/her placement in one of the select orphanages in Lagos state. Consequently, the child becomes a ward of the State, subject to the supervision of the Ministry of Youth, Sports and Social Development. The existing legal and regulatory framework is further structured to provide a number of ways by which the average Nigerian citizen or a foreigner can formally seek to be vested with the capacity to take optimum care and responsibility of such children, pursuant to an order of a court of competent jurisdiction. Thus, it is an offence punishable by law for any person to exercise certain rights, powers and obligations over a child within contemplation prior to applying for and obtaining the requisite approval from the relevant authorities. These legal arrangements are identified and discussed below:
1.     Fostering:
A person or couple may appropriately make an application for a “Fostering Order” in respect of a child that is orphaned, abandoned, deserted by relatives, abused, found wandering or destitute (See Section 92 Child Rights Law of Lagos State 2015). The application may be made by a sole applicant or jointly by a couple. The Court may however require the consent of a relative i.e. a grandparent or other persons related to the child before it makes the grant.
Upon the grant of the Fostering Order, the child will stand to the foster parents in the same position as the children born to the foster parents in a lawful marriage. The Fostering Order may subsequently be revoked by the court if it deems it appropriate.
Note the following additional details about fostering:-
i. Once an application for fostering is made, the Adoption Unit of the Lagos State Ministry of Youths, Sports and Social Development (The Unit) must also be notified. If the child is not already in the custody of the Unit, it is the Unit’s practice to immediately take custody of the child and place it in an approved orphanage pending the ruling of the court.

ii. If the order is granted, the custody of the child may be released to the foster parents but the Unit must be constantly apprised of the child’s status at all times and a designated social worker may periodically visit the home of the parents to conduct this assessment.

iii. If the child is to be taken out of the country by the foster parents, the court must be notified before and after the child returns.

iv.  Giving possession of the fostered child to another person for fostering outside Lagos or Nigeria attracts prison terms of 10 and 15 years respectively. See section 108 (2) & (3) of the CRL respectively.

Execution Timeline:         2 – 4 months from date of application

2. Guardianship:
This is perhaps the most flexible and quickest legal arrangement for taking care and custody of the children in contemplation. The parents of a child are his/her default guardians. However, in the absence of the parents or any other family member of the child or appropriate authority, an unrelated party may apply to be appointed a guardian and vested with the capacity to exercise parental responsibilities over such a child. (See sections 75 & 76 of the CRL of Lagos State 2015. If unconditionally granted, a guardian will have all parental and incidental responsibilities over the child to the full extent permissible by law. A guardianship Order can subsequently be revoked or substituted by the guardian, a natural parent or an appropriate authority. Otherwise, the order will subsist until the child attains the age of majority.
Note that unlike a fostering order which can only be granted solely to an applicant or jointly to a couple, a guardianship order can be granted to the parents of the child and an unrelated person, appointing them all as joint guardians of the child. In addition, the supervision of guardianship applications is within the ambit of the court and not the Lagos State Ministry of Youth, Sports and Social Development (MYSD). Hence the MYSD need not be involved in a guardianship application as long as the child is not yet a ward of the government and resident in an orphanage.  Note that a guardian is also empowered to appoint by deed in his or her lifetime, another guardian of the child in the event of such guardian’s death.

Execution Timeline:   1 – 3 months from date of application

3.     Adoption:
The law also permits the adoption of children without parents or guardians, subject to a number of clearly expressed rules outlined in the Child’s Rights Law and Adoption Laws of Lagos as well as other subsidiary adoption regulations.  Before an adoption order can be made, the applicant must have informed the MYSD of his/her intention to undertake the proposed adoption, at least one year prior to making an application, and obtained the requisite approval to apply for the contemplated adoption. The prospective adopter must also show evidence of having bonded with the child and must have undergone certain adoption training sessions organised by the Lagos State Ministry of Youth, Sports and Social Development.

While International/cross country adoptions are not prohibited, a prospective foreign adopter must first provide evidence showing that that  requisite approvals to adopt internationally have been granted by the relevant authority of the foreign country where the adopted child is sought to be subsequently taken e.g. (in the United States, the USICS Form I-600 must have been appropriately filed and approved) and the contemplated adoption must be effected through an approved Adoption Agency in Lagos State e.g. the Literacy Integration and Formal Education (LIFE) Foundation in Victoria Island, Lagos. If one spouse is Nigerian, the adoption may be undertaken as a local adoption. It should however be clearly stated that a combined reading of sections 145(1) and 131(1)(b), (c) and (d) of the Child Rights Act would reveal that inter country adoptions may not be allowed in Nigerian States that are yet to domesticate the Child Rights Act into state laws.
Upon the making of an adoption order, all legal connection between the child and his/her biological parents (including but not limited to the use of surname, maintenance, education, religion, discipline, welfare, travelling and marriage approval) is completely severed and all parental rights and responsibilities in respect of the child are vested on the adoptive parent(s). The implication of this accounts for the length and complexity of the process. Also, in the event of the death of the adoptive parent(s), the child will be treated as their biological child for the purpose of devolution of property. See section 13 of the Adoption Law of Lagos.
 Execution Timeline:   12 – 18 months from date of application (beginning from when a specific child has already been identified and marked for adoption)
As outlined above, a number of options are available to formally cater for the welfare, care and custody of children, all of which are administered and supervised by a functional legal framework. These options are mutually exclusive as they cannot all be obtained in respect of one child at the same time, the court will also refuse to grant any of these orders unless all requisite steps have been complied with and all documents submitted, properly vetted and deemed satisfactory enough to warrant a grant of the requisite approval. If adoption is contemplated in the long run, either of the other options highlighted above can temporarily be applied for because of their relative flexibility and because they vest similar parental rights and obligations on the applicant, pending when an approval for adoption has been obtained and the process commenced. Note that the Guardianship or Foster Order must be revoked by the court before an Adoption Order can be made.
Conclusively, it is imperative that that every action by an individual, public or private body, institution, court of law, administrative or legislative authority in respect of a child must be undertaken with the child’s best interest as the primary consideration (See section 1 of the CRL of Lagos State, Odogwu v. Odogwu (1992) 2NLWR (Pt 225 @ 539). Hence, the grant of a relevant order is ultimately at the discretion of the court (a factor that is usually guided by the overall impact of the contemplated arrangement on the child in question) and thus, a proper application for any of these options does not guarantee an automatic approval, the full satisfaction of all condition precedents notwithstanding.

Temitayo Ogunmokun is a legal practitioner at a Commercial Law Firm in Victoria Island, Lagos. His areas of practice include Corporate, Immigration, Taxation and Family Law. He is a volunteer legal adviser to the Literacy Integration and Formal Education (LIFE) Foundation (a Non-Profit organization, specially approved to facilitate cross country adoptions by the Lagos State Government) and a published poet and writer.