MALAWI

Title:
In the matter of the Adoption of Children Act Chapter 26:01 of the Laws of Malawi and in the matter of Chifundo James (an infant)

Court:

Supreme Court of Appeal

Date:
12 June 2009

CRC Provisions:
Article 3: Best interests of the child
Article 21: Adoption

Other International Provisions:
African Charter on the Rights and Welfare of the Child ("ACRWC"), Article 24

Domestic Provisions:

Adoption of Children Act ("ACA")

Case Summary:
Background:
Madonna Louise Ciccone applied to the court to adopt a three-year-old girl, CJ. CJ's mother had died shortly after giving birth, and the identity of the father was unknown. CJ's relatives had placed her in an orphanage, but no family had applied to adopt her. The High Court rejected Ms. Ciccone's application to adopt CJ on the grounds that she was not a resident of Malawi, as required by the ACA, and because inter-country adoptions should only be granted as a last resort, in accordance with article 24 of the CRC. Ms. Ciccone appealed.

Issue and resolution:
Inter-country adoption. The Court found that Ms. Ciccone met Malawi's residency requirement and permitted her to adopt CJ, also noting that inter-country adoptions need not be viewed as a measure of last resort.

Court reasoning:
The initial court decision considered that a resident of Malawi must “display a degree of permanence in his or her place of habitation”. That court decided that Ms Ciccone was not a resident, and so could not adopt, because she had only entered the country a few days prior to the adoption hearing. The Supreme Court disagreed, finding that Ms. Ciccone was in fact a resident for the purposes of adoption as she was intentionally present in Malawi (“in the country not by chance but by design”).

The Court also held that any person has a right to adopt under national legislation, that the ACA does not limit inter-country adoptions to instances of last resort, and that there was no conflict between the ACA or the Constitution with either the CRC or the ACRWC. In this case, Ms. Ciccone was the only person who had sought to adopt CJ, and it was in the best interests of CJ to be adopted by a foreign parent rather than to be raised in an orphanage

Excerpts citing CRC and other relevant human rights instruments:
35. Coming to the actual provisions of the CRC we note that Article 3 provides that “the best interest of the child shall be a primary consideration. Article 21 of the CRC charges the parties who recognize adoptions in their system to ensure that the best interest of the child shall be the paramount consideration and that the adoption is authorized by competent authorities in accordance with the applicable law in those countries. The best interest of the child is also emphasized in Article 24 of the African Charter on the Rights and Welfare of the Child 1990.

36. In our Judgment, we think that whether you talk about the best interest of the child as is the case in the above cited Conventions or you talk about the welfare of the child as is contained in the Act, this really is a question of semantics or nomenclature. They mean the same thing, and it is this; a court of law dealing with the adoption of an infant must pay attention at all times that the welfare of the child is not compromised by secondary issues. We therefore find that there is absolutely no conflict between what the Act provides and what Articles 3, 20 and 21 of the CRC provide. The provisions deal at some length with matters that can only be said to be for the welfare of the child
which our courts are mandated to protect under the Act. Article 20 of the CRC in fact encourages state parties to deal with adoption cases in accordance with what the national laws provide. The article states in part as follows:

“State Parties shall in accordance with their national laws ensure alternative care for such a child.”

37. Article 21 of the CRC provides that contracting parties should: “(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures.”

38. The Article goes on to dwell on some of the safeguards that are provided in sections 3(3), 4(a), 4(b), 4(c) of the Act and in Rule 12 of the Rules to the Act. Article 21 (b) of the CRC which recognizes that:

“Inter country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin”, is not only in harmony with section 2 of the Act which counsel drew our attention to but also with section 4 of the Act which deals with the welfare of the child.

39. Article 24(a) and (b) of the African Charter on the Rights and Welfare of the Child 1999 is for all practical purposes similar to Article 21(a) and (b) of the CRC and the observations we have made in regard to Article 21(a) and (b) are applicable to Article 24(a). All these provisions compliment and amplify the Act. And courts may take judicial notice of them when they are considering an application under the Act. This is not to say, however, that our own Act is not adequate or comprehensive in dealing with adoption issues, far from it. All we are saying here is that when we look at our Constitution and the Act there is no clash or conflict whatsoever between what is provided for in our own laws and what is provided for in the various conventions that have been referred to us. We will therefore use our own Act and Constitution which are sufficient in deciding this Appeal.

CRIN Comments:
CRIN believes that this decision is inconsistent with the CRC to the extent that, despite the Court's finding to the contrary, Article 21 of the Convention does indeed specify that inter-country adoption should be considered only as a last resort “if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin.” Nevertheless, an inter-country adoption may be in the best interests of the child, and the Court was correct to assert the paramountcy of the child's best interest in such cases.

Citation:
Appeal judgment, MSCA Adoption Appeal No. 29 of 2009

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.