IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

ADOPTION CASE NO. 1 OF 2009

IN THE MATTER OF THE ADOPTION OF CHILDREN ACT CAP. 26:01

AND

IN THE MATTER OF CJ (A FEMALE INFANT) OF C/O MR. PETER BANETI, ZOMBA (for the purposes of protecting the identity of the infant in these public records I will refer to the infant by the initials CJ)

CORAM: HON. JUSTICE E.J. CHOMBO

Mr. A Chinula, Counsel for the Petitioner

Mrs. Munyenyembe, Court Interpreter

IN ATTENDANCE: The Petitioner, Ms. Madonna Louise Cicoone

Mr.S.w. Chisale – Guardian ad-Litem

Mr.Peter Baneti and Mr.Chekechiwa–Family Representatives of the                      Infant CJ

RULING

CHOMBO, J

On 30 March 2009 the Petitioner, Ms Madonna Loiuse Ciccone (hereinafter called the Petitioner) presented her petition to the Court desiring to adopt a female infant CJ.  The said petition is supported by affidavits and skeletal arguments.

Background

The said infant CJ is presently three years old whose 14 year old mother died shortly after the birth of CJ in Zomba. The Probation Officer and Guardian ad-litem, Mr. S.W. Chisale submitted comprehensive reports on the circumstances that have led to the said infant being the subject of this application. A full and comprehensive report of

the Petitioner disclosing all the necessary information for the purpose of an adoption was also submitted.   

The Court had opportunity to find out from the family representatives if they had been properly counseled on the implications of an adoption.  They both confirmed to the Court their understanding of the implications of adoption and their family’s decision to have the said infant adopted; which facts confirm the affidavits of the Petitioner and I find the same to be true. 

The Law

I will restrict the discussion in this section to two provisions of the law under the Adoption of Children Act,

1. Section 3(5) of the Act provides that:

An adoption order shall not be made in favour of any applicant who is not resident in Malawi or in respect of any infant (child) who is not so resident.

Notably the word resident is not defined in the Act. Much discussion dwelt on the issue of residence in the previous adoption case by the same Petitioner before Court.  At the close of the day Nyirenda J, (as he then was) came to the conclusion that:

It might well be that the definition of ‘residence’ is at large and might be equated, in the circumstances of the case, to mere physical presence in the country at the time of the petition so that the court can make its own assessment of the Applicants and how committed they are in the undertaking.  The requirement as to residence, in my view is also intended to enable the system in Malawi to verify the standing and disposition of the applicants with some degree of certainty.  But all these considerations in my judgment are intended to establish that the infant child will be in safe and secure hands

There is a wealth of authorities from different jurisdictions that has dealt with the interpretation of the word ‘residence’in a comprehensive way that I have found to be instructive and I would like to borrow from. This may, of necessity, involve lengthy quotations to buttress the point being raised. The National Court of Justice in Papua New Guinea in GN and RN, an Application{1985} PNGLR 121 (17 May 1985) quoted with approval the words of Ashworth J, in the case of Brokelmann v Barr{1971} 3 All ER 29 at 36 that:

In the judgment of this court, there has gradually been developed and established a rule of construction that prima facie at leastresidence involves some degree of permanence. As was said by Lord Justice Wdgery in Fox v Stirk

(9 supra) ‘It is imperative to remember in this context that residence implies a degree of permanence,  In the words of the Oxford English Dictionary, it is concerned with something which will go on for a considerable time.  Consequently, a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit, some expectation of continuity, is a vital factor, which turns simple occupation into residence. (underlining supplied)

Section 6(4) of the Adoption of Infants Act of Fijiis almost word for word with that of Malawi. In November 1997, Byrne J in re S (an infant) 1997FJHC 183 quoted with approval the holding of Harman J in RE Adoption Application No. 52/1951 {1952} 1 Ch. 16 as follows:

His Lordship then quoted the remark of Lord Cave L.C. in Levene v IRC{1928} A.C 217 at 222 who cited the Oxford English Dictionary saying:

the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time,to have one’s settle or usual abode, to live in or at a particular place…Again I quote from Mr. Justice Harman in Adoption Application No. 52/1951 at p.23 referring to an argument by counsel for the Applicants that while the Applicants were on leave in England, they were for the time being ‘resident’ there.  His Lordship said “I should say they were for the time being staying here”, and I do not think that is the same as being resident.

It was further observed by His Lordship that “residence denotes some degree of permanence. It does not necessarily mean the applicant has a settled headquarters in this country.  It seems dangerous to try to define what is meant by residence.  It is unfortunate that it is not possible to do so, but in my judgment, the question before the court is in every such case whether the applicant is a person who resides in the country.  In the present case I can only answer that question in the case of the wife by holding that she is not resident in this country; she is merely a sojourner here during a period of leave. (underlining supplied)

And Byrne,J. went on to say that:

The court must be able to postulate at the critical date that the applicant is resident, and that is a question of fact. (underlining supplied)

According to information from the global media the Petitioner jetted into the country during the weekend just days prior to the hearing of this application. I take judicial

notice of the reports in the media that the last time that the Petitioner was in the country was in 2008 at the time of the final adoption order for David Banda.  In my considered opinion this would completely remove the Petitioner from the definition of a‘resident’as defined by the Oxford English Dictionary and adopted in the celebrated cases sited herein.

Due to brevity of time it has not been possible to consult the Hansard at Parliament and investigate the spirit of the law at the time the Adoption of Children Act came into being. That notwithstanding I wish to hazard a rationale that this was primarily for the protection of the child, who has to adjust to her/his new family in the local jurisdiction under the supervision of the probation officer with a possibility of discontinuance of the adoption should adverse traits be observed in the infant.Section 7 provides that where the court decides to postpone the determination of an application for adoption the court may make an interim order which shall not exceed the period of two years.My convictions are further fortified by the proposal of the Malawi Law Commission in a Bill that is still before Parliament which, among other things, provides that a new Section 3(5)be enacted to include that:

(d) The applicants or one of the applicants if not a relative of the child, has, while in Malawi, fostered the child for a period of one year.

Whilst there is a felt need to open a window for inter-country adoptions there is caution and clearly some felt tension between the rights of the child to adequate welfare and the need to protect the subject of the adoption.

Put simply courts do make law by the process of precedents, and Ms Madonna may not be the only international person interested in adopting the so-called poor children of Malawi.  By removing the very safeguard that is supposed to protect our children the courts by their pronouncements could actually facilitate trafficking of children by some unscrupulous individuals who would take advantage of the weakness of the law of the land.  It is necessary that we look beyond a particular petitioner, and maybe even a particular benefactor but go beyond them, and consider the consequences of opening the doors too wide.   Anyone could come to Malawi and quickly arrange for an adoption that might have grave consequences on the very children that the law seeks to protect.     

Records at the High Court Registry will actually show that the adoption of David Banda is not the first inter-country adoption. The sole sore-thumb difference is that the residence of the applicants therein was never an issue.  To date there has only been one case that has departed from the mandatory requirement of the period of residence prior to the making of an application for adoption. The issue of residence, I find, is the key upon which the question of adoption rests and it is the very bedrock of protection that our children need; it must therefore not be tampered with.  As wisely

put by G. K. Chesterton, “Don’t ever take a fence down until you know the reason why it was put up”.

2. The Adoption of Children Act Section 4(b)

The second issue to be considered is the issue of the welfare of the child. In my attempts to make sense of this requirement under Section 4 of the Act I referred to two international instruments; the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACHPR) to which Malawi is a signatory. Section 4provides as follows:

The court before making an adoption order shall be satisfied-

(b) that the order if made will be for the welfare of the infant, due consideration being for the purpose given to the wishes of the infant, having regard to the age and understanding of the infant.

The Act does not however offer any definition or interpretation as to the meaning or what constitutes ‘the welfare of the infant’,especially where the infant has no capacity to make any decision of its own as in the present case; thus my referencing the two international instruments.  The welfare of the child has occupied many a minds culminating in the birth of these two instruments.Article 3(1) of the CRC and Article 4 (1) of the ACHPRprovide that the ‘best interest of the child shall be the primary consideration’.  In qualifying the term ‘the best interest of the child’ as provided for in the two instruments above I want to rely on some profound pronouncements of Bhagwati J in the case of Lakshmi Kant Pandey vs Union of Indiaof 6 February 1984 found in AIR 1984 SC 469

It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well being of its children.  Children are a ‘supremely important national asset’ and the future well being of the nation depends on how its children grow and develop….  Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look after themselves.

It is commonplace knowledge that there are irreconcilable differences between the western world and, specifically, Malawi and what the Petitioner can provide for the infant CJ. The point need not be overemphasized that material needs of a child in America and the West in general are better provided for than in Malawi. And, I must confess that there is a gripping temptation to throw caution to the wind and grant an adoption in the hope that there will be a difference in the life of even just one child.  However in our guest to ensure that the children are well provided for it should be borne in mind that inter-country adoptions may not and are not the only solutions.  I

have no doubt that the framers of the international instruments had this in mind when in their wisdom they included Article 24 which provides that States Parties, which recognize the system of adoption shall ensure that the best interest of the child shall be the paramount consideration and they shall:

(b) recognize that inter-country adoption in those States who have ratified or adhered to the International Convention on the Rights of the Child or this Charter may as the last resort, be considered as an alternative means of a 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.(underlining supplied)

Clearly inter-country adoption is supposed to be the last resort alternative. In my internal struggle to come to some sane conclusion I asked myself a number of questions.  Can CJ be placed in a foster or adoptive family? Incidentally the Act does not define what‘a foster or adoptive family’ is.  The answer therefore is neither here nor there.  It is evident however that CJ no longer is subject to the conditions of poverty of her place of birth as described by the Probation Officer since her admission at Kondanani Orphanage. In the circumstances can it be said that CJ cannot in any suitable manner be cared for in her country of origin?  The answers to my questions are negative.  In my view ‘in any suitable manner’refers to the style of life of the indigenous or as close a life to the one that the child has been leading since birth.   Presently CJ is in the care of Kondanani Orphanage and no evidence to the contrary has been brought as to the inability or unwillingness of Kondanani Orphanage to continue looking after CJ.  This situation must be distinguished from the case of David who, according to facts on record, was to be returned to his biological father within a period of six months from the time that Mchinji Orphanage had admitted him.  This is the same father that had desperately appealed for help after the death of his wife because of his incapacity to look after David and the unwillingness of wife’s family to care for the child. And, after six months the child was supposed to be returned to him.  It is not known how much would have changed within six months. 

CONCLUSION

As I make the order I am acutely aware of the high expectations that the family of CJ, and possibly other independent well-wishers, had about the unlimited opportunities that the proposed adoption would avail CJ. I have no doubt that all hope is not lost with the Petitioner’s noble and immediate ideas of investing in the improvement of more children’s lives with her projects in Malawi. It is my prayer that CJ would be among the first children to benefit from that project.  Having said all this then, at the end of the day I must decline to grant the application for the adoption of the infant CJ.

MADE in chambers this 3^rdday of April 2009.

E.J. CHOMBO

JU D G E