A Legal Appraisal Of Adoption Practice Under Nigeria Law

Brief Introduction

Up to 1965, there was no statutory basis in any part of Nigeria for the adoption of a person. This caused a lot of hardship, because even when couples took children into their household on the understanding that they were being adopted, it could not be regarded as legal adoption. They were regarded as guardians or foster parents. The result was that the child’s natural parents might at any time assert their natural rights by demanding the return of the child. This was notwithstanding any close relationship that might have developed between the child and the foster parents or guardians. The first known attempt at providing a statute on adoption was a private member’s bill presented to the then Eastern House of Assembly in April 1958. Unfortunately, the bill was not well received in the House and had to be withdrawn. (Note 5) The first adoption legislation in Nigeria was enacted in the then Eastern Nigeria in 1965, and was known as the Eastern Nigeria Adoption Law, 1965 which came into force on 20th May, 1965. (Note 6) This law now applies in Anambra, Imo, Ebonyi, Abia, Rivers and Bayelsa States. In 1968 an adoption law was promulgated for Lagos State. Subsequent to this, other States followed with their own laws. (Note 7) There are lots of similarities in these laws, just as there are some striking similarities between the Nigerian laws generally and the English Statutes on the topic. By contrast, none of the States in the Northern part of the country (which are in the majority) has any legislation on adoption. Ironically the largest number of adoptable children, i.e., children in dire need of care and protection, come from that part of the country. They are commonly found all over the country as street urchins and beggars being exposed to all kinds of abuse, danger and criminal influences. (Note 8) Though there are no adoption enactments in the Northern part of the country, there are adoption procedures being carried out there. The Child’s Rights Act 2003 was enacted by the National Assembly with a commencement date of 31st July, 2003. As stated in the Explanatory Memorandum annexed to the Act, it “sets out the rights and responsibilities of a child in Nigeria and provides for a system of child justice administration and the care and supervision of a child, among other things”. Specifically, Part XII makes far-reaching provisions regulating adoption throughout Nigeria. However, although the Act is deemed to have come into force since 2003, the Adoption Laws enacted by the States are still extant. The reason is that adoption, in particular, and the rights and welfare of children, in general, are matters within the legislative competence of the States under the Constitution of the Federal Republic of Nigeria 1999. Hence, the National Assembly has no constitutional power to foist the Act on the States. The Act is enforceable as such only in the Federal Capital Territory, Abuja for which the National Assembly has the powers to make laws. Indeed, some States Houses of Assembly have already passed the Child’s Rights Bill into law (Note 9) while others are in the process of doing so. Apparently as a means of checking child trafficking under the guise of adoption, the Act (Note 10) prohibits inter-country adoption as well as the giving and receiving of any payment or reward as a consideration for or to facilitate adoption. The current state of International human rights law is that adoption should be regarded principally as a child care device rather than as a means of providing succour to childless persons or relief to incapable parents, as it was conceived under the old international legal order. Thus, the Act duly recognizes the paramountcy of the welfare and best interests of the child in adoption proceedings, as indeed in “every action concerning a child”.