Firm X Family Law Practice Week Two Children Act Learning Outcomes

FAMILY LAW PRACTICE LEARNING OUTCOMES (WEEK TWO)
CHILDREN’S MODULE
Workshop One & Two
FIRM X Partners
1. Mpaata Jerome Owagage

2. Julianne Mwebaze
3. Diane Niyogusabwa
4. Aine Raymond
5. Gerald Ndobya
6. Muhanuuzi Dorah
7. Mulindwa Fredrick
8. Daphne Musoki
9. Awino Mercy
10. Kule Roland
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Workshop One
Learning Outcome 1: Appreciate the application of children’s rights and all the child welfare
Orders which the law provides for such as custody, maintenance, care, protection,
contribution, and supervision Orders.
Subtasks of the Learning Outcome
- Application of Children’s Rights
- Application of Child Welfare Orders
1. Preliminaries
a. Definition of a child
i. Article 257(1) – A person below 18 years
ii. Article 34(5) – for purposes of employment, a person below 16 years
iii. Section 2 of The Children Act, Cap 59 (as amended) - A person below
18 years
b. Jurisdiction to hear matters concerning children
i. Section 13 Children Act establishes the Family and Children Court in
every district. It is presided over by a Magistrate Grade II
ii. Section 14(1)(b) – F&C court has jurisdiction to hear applications relating
to child care and protection
iii. Section 16 – F&C court to apply procedure in The Children (Family and
Children Court) Rules SI 59-2
2. Rights of Children
a. Constitutional Rights
i. Rights under Article 34
1. To know and be cared for by their parents (same right expressed in
Art 31(4)
2. To basic education
3. To medical treatment
4. Protection from social or economic exploitation
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5. Right of child offender to be kept in separate facilities from adult
offenders
6. Right to special protection to orphans and vulnerable children
ii. Rights under Article 31(5)
1. Right not to be separated from their families or persons entitled to
bring them up
iii. Rights under Article 11
1. Right to be Ugandan citizens by birth if under 5 and parents
unknown
2. Right to be registered as citizens of Uganda if adopted by Ugandan
citizen even if neither parent is Ugandan
b. Rights under Part II (sections 4-9) of The Children’s Act
i. These rights are similar albeit more comprehensive than the constitutional
rights and include rights to:
1. live with parent or guardian
2. express views on matters affecting their well-being
3. access information critical to their well-being
4. be registered at birth
5. name and nationality
6. leisure that is not morally or socially harmful
7. inherit property etc
8. effective legal aid
9. etc
c. Rights under International Law
i. Section 4(1)(l) – children shall exercise, in addition to all the rights stated
in The Act, the rights set out in the United Nations Convention on the
Rights of the Child and the Organization of African Charter on the Rights
and Welfare of the child with appropriate modifications
3. Application of Children’s Rights
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a. Section 3(1) of The Act – Welfare of the child is the paramount consideration
whenever anyone/tribunal is determining a question in respect to a child. This
includes in determination and application of the above-stated rights
b. Section 3(3) sets conditions for ascertaining adherence to welfare principle. The
tribunal must have regard to:
i. The ascertainable wishes of the child
ii. Physical, emotional and educational needs of the child
iii. Likely effects of any change in the child’s circumstances
iv. Child’s sex, age, background etc
v. Etc
c. In the matter of a Petition for The Adoption of Victoria Babirye Namutosi by
Johnny Walters Jr and Cheryl Ann Waters, Adoption Cause No. 09 of 2017
4. Child Welfare Orders
a. Custody Order
i. Section 1(q) defines a custodian as a person in whose care a child is
physically placed
ii. Section 73(1) court may, on application, grant custody of a child on such
conditions as may be determined by court
iii. Section 73A – Interim custody order
1. Maybe applied for by a probation and social welfare officer,
parent, guardian
2. Pending the determination of custody
iv. Section 73A(2) Application to be supported by affidavit of applicant
v. Section 73A(3) – Applicant must satisfy court that
1. The child is suffering or likely to suffer harm OR
2. That the order is in the best interests of the child
vi. Custody by agreement
1. Section 73B – parents may enter written agreement to determine
custody
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2. Court may recognize such agreement except where enforcing such
agreement is not in the best interests of the child, not premised on
duress or fraud
vii. Procedure for applying for Custody Order
1. Section 73A(2) – Application to be supported by affidavit
2. Rule 19(1) of The F&C rules – Application to be as per Form 1 in
the Schedule to the rules
b. Maintenance Order
i. Section 76(8) Maintenance means general welfare, feeding, clothing or
education
ii. Section 76(1) May be applied for by anyone who:
1. Has custody of a child AND
2. Is the mother, father, or guardian
iii. Section 76(3) – When may an application be made
1. During a subsisting marriage
2. During proceedings for divorce, separation, or nullity of marriage
3. During separation
4. During proceedings for declaration of parentage
5. After a declaration of parentage
6. At any time during pregnancy [s.76(4)]
7. Before the child attains 18 years of age [s.76(4)]
iv. Procedure for applying for a maintenance order
1. Section 76(5) – application made by complaint on oath to a family
and children court
2. Section 76(6) – summons taken out and served on mother or father
3. Section 76(7) – summons must be served at least 7 days before
hearing
4. Rule 19 – Form 1 of The Schedule to The Rules
v. Substance of The Maintenance Order
1. Section 76(7) Court may order the payment of:
a. A monthly sum
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b. Funeral expenses if the child dies before the making of the
order
c. Costs incurred in obtaining the order
2. Section 76(9) court may order a lump sum payment in lieu of the
monthly contribution
vi. Consequences of failure to comply with Maintenance Order
1. Section 77 – failure to comply after one month, magistrate may
direct that:
a. An attachment of earnings be made OR
b. The sum due together with costs incurred may be recovered
by distress and sale or redistribution unless security is
furnished
vii. Other key features of Maintenance Orders
1. Section 78(1) – may be varied on application by the applicant or by
the person against whom it is issued
2. Section 78(2) – order ceases to have effect once custody is granted
to person against whom issued
3. Section 78(3) – A maintenance order can be made and enforced
against the estate of a deceased
4. Section 78(4) – an order for recovery of arrears of maintenance
may be made subsequent to a declaration of parentage, even after
the death of a child
5. Section 79 – money subsequent to a maintenance order may be
paid to:
a. The applicant, appointed custodian (appointed under s.80)
or into court
6. Section 82 – A maintenance order ceases to have effect once the
child turns 18
7. Section 81 – misapplying maintenance money is an offence
c. Care Order
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i. Section 1(f) a care order means a care order made under Part V of The Act
and includes an interim order
ii. Section 19(b) read together with Section 27(1) Care order or interim care
order may be made on application by:
1. Probation and social welfare officer or an authorized person
iii. Section 19(b) read together with Section 27(1) a care order places a child
with foster parents or in the care of a warden of an approved home
iv. Section 27(2) under what circumstances a care order may be made?
1. After all possible alternatives of assisting the child have failed and
significant harm from which the child suffers requires their
removal
2. When the danger to which the child is exposed is so severe as to
require immediate removal
v. Section 28 – Purpose of a care order
1. To remove a child from a harmful situation
2. To enable stakeholders assess circumstances and resolve problems
so as to return the child to the community
vi. Section 29 – duration of a care order
1. Maximum of 3 years or until child is 18 years (whichever is
shorter)
2. It is annually reviewed by a Probation and Social Welfare Officer
vii. Section 30 – Enforcement of a care order
1. Enforcement is done by the Probation and Social Welfare Officer
who applies for the order
viii. Section 32 – Special Duties of a Probation and Social Welfare Officer in
relation to the care order
1. Work with parents, guardians or relatives to whom child is
expected to return after termination of the care order
2. Child and family counseling
3. Be the link between foster family and communicate with the
guardians or parents of the child
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4. Visit the child during the trial period at home and make plans for
the future of the child in consultation with the foster parents
ix. Section 21 - Grounds for Care Order [same as grounds for a supervision
order]
1. That child is suffering or likely to suffer significant harm
2. That the harm is attributable to the care being given to the child
x. Section 33 – Interim Care Order
1. Maximum period for interim order is 3 months and is based on the
probation and social welfare officer giving information that the
child is suffering
xi. Procedure for Care Order
1. Rule 19 (supra) by filling the application form 1 in the Schedule to
the rules
d. Contribution order
i. Section 65 states the characteristics of this order as below:
1. Child is in an approved home
2. But child has a parent or guardian living
3. Court orders parent/guardian to contribute towards child’s
maintenance
4. Order remains in force for as long as child is in the approved home
5. Order may be varied on application of the person contributing
ii. Procedure for this order
1. Covered under Rule 19
e. Supervision Order
i. Section 1(kk) defines it as an order made under Part V of The Act and it
includes an interim supervision order
ii. Section 19(a) – it places a child under the supervision of a probation and
social welfare officer while leaving the child under the custody of his/her
parents or relatives
iii. Prerequisites for a supervision order
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1. Section 20(1) – The Probation and Social Welfare Officer must
prepare a written welfare report prior to its issuance
2. Section 21 - must be supported by sufficient grounds
3. Probation and Social Welfare Officer must satisfy court that:
a. LCs from village to sub county level where the child
resides have dealt with the matter without success
b. There is need for continuous supervision enforced by court
order
iv. Section 23 - Duties of supervisor
1. Be friendly to, advise and assist the supervised child
2. Advise parents etc
v. Section 24 – Duration of supervision order
1. One year extendable for just one more year
2. Order expires when child turns 18
vi. Section 25 – Enforcement of Supervision Order
1. By Probation and Social Welfare Officer
vii. Section 26 – Change of address
1. Must be notified to Probation and Social Welfare Officer
2. Supervisor must be allowed to visit child at new address
viii. Procedure
1. Rule 19.
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Learning Outcome 2: Apply the principles of law specific to children such as the welfare
principle.
The Convention on the Rights of the Child propounds four guiding principles in all matters relating
to children. These are the welfare/ best interest principle; the right to life, survival and development;
the ascertainable wishes and views of the child and the principle of non-discrimination.
1. Welfare Principle/ Best Interests of the Child
The welfare principle qualifies as a right, principle and rule of procedure.
It was explained in the case of Walker v Walker & Harrison [11981] Recent Law 257;
“The term welfare is an all-encompassing word that includes material welfare both
in the sense of adequacy of the resources to provide a pleasant home and
comfortable state of living and in the truest sense of adequacy of care to ensure
good health and personal pride. The welfare of a child is not to be measured by
money alone nor by physical comfort only. The word welfare must be taken in its
widest sense. The moral and religious welfare must be considered as well as
physical wellbeing. Nor can the ties of affection be disregarded.”
This principle is applicable and must be the primary consideration in all matters involving children
that are handled by the Court. The Court must the court must do what under the circumstances a
wise parent acting for the true interests of the child would or ought to do. This was the principle as
propounded in Pulkeria Nakagwa v Dominiko Kiggundu [1978] HCB 310.
The principle is therefore a consideration of all circumstances relating to the physical, financial,
moral, spiritual, psychological, mental and other factors relating to the child, and not any one in
isolation. These factors are explained in Section 3 of the Children (Amendment) Act 2016 to
include;
a. the ascertainable wishes and feelings for the child concerned, with due regard to his or her
age and understanding
b. the child’s physical, emotional and educational needs
c. the likely effects of any change in the child’s circumstances
d. the child’s sex, age, background and any other circumstances relevant in the matter
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e. any harm that the child has suffered or is at risk of suffering
f. where relevant, the capacity of the child’s parents, guardian or any other person involved in
the care of the child, and in meeting the needs of the child
Some key tenets of the welfare principle
I. Children are better placed with their natural parents
In Lough v Ward (1945) 2 ALL ER 338, the court explained that at common law, the parent had, as
against other persons generally, an absolute right to the custody of the child, unless he or she had
forfeited it by certain sorts of misconduct.
Similarly, in Re Michael Lumu Adoption Cause No 8 of 2000, court found that the requirement for
consent under Section 47 of the Children Act Cap. 59 before grant of an adoption order is because
parental rights could only be dispensed with if the parent was deceased, of unsound mind or unable
to give such consent.
This means that the natural parent of the child had first right to the child, but if through certain
misconduct, it could be proved that this was not in the best interests of the child, this right could be
forfeited in favor of the child’s welfare.
II. The father’s natural right of custody
The Court has also recognized the father’s natural right of custody of the child, particularly in
African society. This was the position in Pulkeria Nakagwa v Dominiko Kiggundu [1978] HCB
310. However, case law seems to weigh this right against the mother’s right in case the child is of
tender years, and a number of other factors to usually find this particular tenet of less weight as
against other factors.
Thus, in Wambwa v Okumu [1970] EA 578, Court held that the Bagishu custom which required
children to stay with their father was in contravention of the welfare principle, and that a child of
tender years ought to stay with the mother in the absence of exceptional circumstances.
III. The likely effect of any change in the child’s circumstances
The court will decline to grant any order if it is likely that a change in the circumstances of the child
may occasion harm to them. Harm may be mental, physical or psychological or otherwise.
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In George Nyakairu v Rose Nyakairu [1979] HCB 261, Court found that a father who had been
staying with the children could retain custody because it was not in the best interest of said children,
if they left.
IV. Child of tender years
The welfare principle suggests that a child of tender years is better placed with the mother. This
principle was discussed in the case of Pulkeria Nakagwa v Dominiko Kiggundu [1978] HCB 310
where the Court stated that a child of tender years was better placed with its mum, but this was not
always the case, and could be dispensed with in case it is not in their best interests.
V. Any harm that the child has suffered or is at risk of suffering
A child who has suffered harm may require emergency interventions, and the court is obliged to
grant the same with the same urgency.
For example, Section 57 of the Children Act Cap 59 provides for admission of children to an
approved home in an emergency situation from a police officer, probation and social welfare officer
or any other person for 48 hours pending production in Court or on an interim care order by Court.
Section 33 of the Children Act Cap. 59 requires Court to make an interim care order if a social
welfare and probation officer provides information that a child has suffered or is likely to suffer
significant harm.
VI. The capacity of the parent or guardian
This relates to both physical and financial capacity. Court explained in Walker v Walker & Harrison
[11981] Recent Law 257 that welfare included financial and physical comfort of the child, in as
much as it was more than just that.
Therefore, in the event that a parent has more financial muscle than the other, but the child is better
placed with the less financially stable parent, the court may opt to grant custody to the latter, with
an accompanying order of maintenance on the former.
In Hoffman v Hoffman (1965) 100, Court found that the superior financial position of a father was
irrelevant against the desirability of a child of tender years to stay with their mother. This financial
position could instead be used to increase the maintenance.
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VII. Religious views
Court will often prefer to vest adoption or guardianship orders in a person who has a similar religion
or spiritual standing as that of the child.
In F v F [1902] 1 Ch 688, Court explained that a child is entitled to care and instruction in the doubts
and difficulties that assail the youthful mind which become more urgent as the child grows, and a
change of religion of the guardian was likely to affect this instruction. This was because the child
could lose confidence in her own religion, or get confused about the same.
VIII. Moral turpitude of the parent/guardian
Court may also have regard to the moral leanings of the parent or guardian to consider whether the
child is best placed with them. This consideration cannot however be used as a sword against a
parent or guardian who has not been seen to impart any immoral misgivings on the child.
Thus, in Allen v Allen (1948) 2 ALL ER 412, court rejected the argument by the plaintiff that the
defendant was not entitled to custody of the daughter because she had been divorced on grounds of
adultery. The Court explained that the mother had not been proved to be a bad housekeeper, or a bad
mother.
OTHER PRINCIPLES (The group is at liberty to either integrate these within the
welfare principle as well, or discuss them separately in accordance with the Convention
on the Rights of the Child)
2. The ascertainable wishes and views of the child
The ascertainable wishes and views of children must always be taken into account.
This is especially relevant in custody orders. Section 3(a) Children (Amendment) Act 2016
recognizes the ascertainable wishes and feelings for the child concerned, with due regard to his or
her age and understanding as relevant in all matters concerning children.
Where a child wishes to express their views, this must be taken into consideration, and their views
must be accurately communicated.
Section 16(1) (c) of the Children Act Cap. 59 requires that proceedings in the children court must
be as informal as possible and by inquiry, rather than exposing the child to adversarial procedures.
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3. The right to survival and development
Article 6(2) of the Convention on the Rights of the Child E/CN.4/RES/1990/74 enshrines the
right to survival and development of the child.
The Committee on the Rights of the Child has expounded this right in its General Comment No 14
Paragraph B (2) p.11.
It includes entitlement to be free from acts and omissions intended or expected to cause their
unnatural and premature death. It also includes the concept of physical, mental, spiritual, moral,
psychological and social development. The principle therefore demands that children be raised in an
environment likely to affect survival and development, and taken away from places where this is
unlikely. It can only be implemented in a holistic manner, through the enforcement of all their other
rights, as well as through respect for the responsibilities of parents and the provision of assistance
and quality services.
This principle can therefore explain factors such as custody rights, maintenance orders, approved
homes, guardianship and adoption orders.
For example, before granting a guardianship order, the Court In The Matter of an Application for a
Guardianship Order and in the Matter of Onen Cliff Mills and Laker Onen (Minors) and in the
Matter of Akello Lucy, HCMA No 0022 of 2018, held that consideration must be had to, inter alia,
whether the prospective guardian had a genuine interest in the child’s welfare, they must be able to
handle the physical demands of raising a child, afford to raise the child, must not be likely to abuse
the child, share the basic known values and morals of the child.
4. Non Discrimination
Section 4(j) of the Children (Amendment) Act 2016 recognizes the right of a child to be treated
without discrimination of any kind, irrespective of his or her race, color, religion, belief, age, family
status, culture, language, ethnicity, nationality, social origin, social origin, citizenship, gender,
disability if any, political or social opinion, property or any other condition.
All orders, rulings, and any matter relating to the same must have regard to the principle of equality
and non-discrimination as set out in Article 21 of the Constitution of the Republic of Uganda,
1995 as amended.
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Learning Outcomes 3: Draft applications for Orders of custody, interim custody, maintenance
Declaration of parentage and an agreement on custody of a child as well as the relevant Court
Orders.
1. Application for a Maintenance Order and Any Other Orders
THE REPUBLIC OF UGANDA

IN THE FAMILY AND ACHILDREN COURT AT ………………………………….
IN THE MATTER OF ……………………………. (Name of child)
AND
IN THE MATTER OF AN APPLICATION FOR …………. (State the type of order)
APPLICATION FOR….
(Under Rule 19(3) of the Children (Family and Children Court Rules) S.I 59-2)
I, _______ (name of applicant), being ________ (relationship to child) apply for a __________
(state type of order) against ______________________________________ (name of
respondent) being the (father/mother) of _________________________________ (name of
child) on the following grounds:
1. (outline the grounds)
DATED at ………………. this …………. day of ………………… 20……..
_______________________________
APPLICANT
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2. Application for Custody

IN THE FAMILY AND CHILDREN COURT AT………………..
FAMILY CAUSE NO: ……… OF 20…….
IN THE MATTER OF …………………….. (Name of the child and age)
AND
IN THE MATTER OF AN APPLICATION FOR CUSTODY BY ……
APPLICATION FOR CUSTODY
(Under Rule 19(3) of the Children (Family and Children Court Rules) S.I 59-2)
I, ………………………….(Name, address and relationship to the child) hereby apply for a
custody order against ……………… (Person with the child and relationship to the child) on the
following grounds:
1. That I am ……………………………… (relationship to the child)

2. That I am a fit and proper person to take care of the child.
3. That the respondent ………………………………. (give reasons as to why the
respondent is not fit to stay with the children)
DATED at [……..] this …………………… Day of ………………………. 201……
_______________________________
APPLICANT
(Attach affidavit in support of the application – bringing out the factual evidence)
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3. Application for Interim Custody S.73a(1)

IN THE FAMILY AND CHILDREN COURT OF UGANDA AT KAMPALA
FAMILY CAUSE No … OF 2022
IN THE MATTER OF ……………………. (CHILD)
AND
IN THE MATTER OF AN APPLICATION FOR AN INTERIM CUSTODY ORDER BY
…………………….
NOTICE OF MOTION
(Under Article 34(1) and (2) and 139(1) of the Constitution, Ss. 14, 33 and 39 Judicature Act,
Cap. 13, S. 98 CPA, Cap. 7, Ss. 3,4,5,6, 73A of the Children Act as amended. and O. 52 R 1
and 3 CPR S. I 71-1)
TAKE NOTE that this Honourable Court will be moved on the ......... Day of ................... 2022 at
12 O’clock in the fore/afternoon or soon thereafter as counsel for the applicant shall be heard on
an application for orders that:
a) This Honourable Court is pleased to grant an interim custody order to ................................ as
caretaker of .........................
c) That the costs be met by the applicant.
TAKE FURTHER NOTICE that this application is supported by the affidavit of the applicant,
which contains the grounds of the application but briefly are;
(Grounds under Section 73A (3) of the Children’s Act)
1. That the child is suffering and likely to suffer more harm if the order of interim custody is
not granted.
2. That it is in the best interest for the child for the applicant to be granted an interim custody
order
3. That the applicant is willing to undertake to provide for the child
DATED at Kampala this ……………. Day of …………… 20…………

_______________________________
COUNSEL FOR THE APPLICANT
Given under my hand and seal of this Honourable Court
This ………. Day of ………. 20……..
_______________________________
REGISTRAR
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4. Affidavit in Support of Application (Section 73A (2) of the Children’s Act)

IN THE FAMILY AND CHILDREN COURT OF UGANDA AT KAMPALA
FAMILY CAUSE No … OF 20……
IN THE MATTER OF DEVOTA HAPPINESS (CHILD)
AND
IN THE MATTER OF AN APPLICATION FOR AN INTERIM CUSTODY ORDER BY
………………………….
AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION
I _____________________ of C/o FX & Co. Advocates P.O Box 426, Lira do solemnly make
oath and state as follows:
1. That I am a female/male adult Ugandan of sound mind and the applicant and I swear this
Affidavit in that capacity.
2. That I am the biological mother/father of ………………. who is …..years old (Birth
Certificate herein annexed and marked “A”)
3. That sometime in 2019, the respondent took away the child from me to go and live with
his grandparents in Elutu road in Lira City.
4. That the home is not conducive to the welfare of the child as the child is neglected to the
hands of the said grandparent’s caretaker and neither has access to its father nor its mother on a
daily basis.
5. That the child can’t fully express herself since she is lonely and surrounded by the elderly.
6. That the child lacks proper discipline as she receives no guidance and has no access to the
maternal side of the family
7. That I have been denied access to the child by the respondent
8. That the respondent does not have time for the child since he does not stay at the same
home the child stays, and is usually travelling.
9. That the respondent stopped caring and looking after the child after the three years after its
birth.
10. That the respondent has a better income than me and can ably maintain the child while the
child is in my custody.
11. That I can meet all the psychological, emotional and social needs of the child and have a
house where I can stay with the child and I also earn a monthly income from my job as a maid
which can supplement the welfare of the child
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12. That it is in the best interest of the child that I am granted his Custody.
13. That whatever I have stated herein above is correct and true to the best of my knowledge
and belief.
Sworn at Lira this …………. day of ………… 2022

By the said
……………………………….
DEPONENT
BEFORE ME:
..…………………………………..
COMMISIONER FOR OATHS
Drawn and filed by:

FX & Co. Advocates
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5. Application for a Declaration of Parentage

IN THE FAMILY AND CHILDREN COURT AT ………………………
IN THE MATTER OF ……........ (Name of child), A CHILD
AND
IN THE MATTER OF AN APPLICATION FOR A DECLARATION OF
PARENTAGE
COMPLAINT ON OATH
(Under Rule 20 of the Children (Family and Children Court Rules) S.I 59-2)
I, ____________________ (name of complainant), being ___________________ (state
relationship to child) apply for a declaration of parentage against _______________ (name of
respondent) being the (father/mother) of _________________________ (name of child) on the
following grounds:
1. (Outline the grounds)
2. ________________________
SWORN at _______________ this ______ day of _______________, 20 ____
_______________________________
COMPLAINANT
BEFORE ME
_______________________________
COMMISSIONER FOR OATHS/MAGISTRATE
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6. Court Order
IN THE FAMILY AND CHILDREN’S COURT OF ………… AT………………….
FAMILY CAUSE NO: ……..OF 2022
IN THE MATTER OF THE CHILDREN ACT CAP 59 AS AMENDED
AND
IN THE MATTER OF ………………………, A CHILD OF……… YEARS
AND
IN THE MATTER OF AN APPLICATION FOR A……………………………….
…………………………………………………………. APPLICANT
VERSUS
………………………………………………………. RESPONDENT
ORDER
WHEREAS this matter is coming up for final disposal before Her Worship in the presence of
Counsel for the applicant and Counsel for the respondent this ……………day of ……….. 2022.
It is hereby ordered and decreed that:
(Interim / Custody)
1. The applicant shall have the have the custody of the minor
(Declaration of parentage)
2. The Respondent Roy Masanja alias Rare Species is the father of the child, Yanniki, aged 2
years.
(Maintenance)
3. The Respondent shall provide for the basic needs of the child including school fees and
medical expenses.
4. The Respondent shall contribute 1, 5000, 000/= (One Million five hundred thousand
Ugandan shillings) towards the maintenance of the child and this fee shall be paid at the
beginning of every month.
5. The Respondent shall be at liberty to visit the child as and when he pleases so long as this
is done at reasonable times of the day and with at least 24 hours’ notice on the Applicant
of this intended visit.
6. That the Respondent pays the applicant in regards to the costs of this application.
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GIVEN under my hand and the seal of this Honourable court this …………….day of
……………..2022.
……………………………….
MAGISTRATE
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Learning Outcome 4: Apply for and prosecute applications for custody, interim custody of a
child maintenance and Declaration of Parentage of a child as well as other relevant
applications necessary for ensuring the welfare of a child.
I. CUSTODY
Section 73(1) guides on how a party can apply and grants court discretion to grant custody of a
child to an applicant on determination of such conditions as may be determined by such court.
Section 73(3) provides for the conditions under which the court must consider before it grants
custody of the child. It states that the court shall primarily consider the welfare of the child.
Section 3 of the Children Act offers the Welfare principle as the guiding principle in any issue
regarding the upbringing of a child such as is the issue of custody. Under 3(1); the welfare of
the child is the paramount consideration whenever the state, a court, a tribunal, a local
authority or any person determines any question in respect to the upbringing of a child.
Section 3(3) of the Children Act provides for the determining factors for any court or any other
person to give regard to in realization of the welfare principle.
Such factors include;
a) the ascertainable wishes and feelings of the child concerned, with due regard to his or her
age and understanding;
b) the child’s physical, emotional and educational needs;
c) the likely effects of any change in the child’s circumstances;
d) the child’s sex, age, background and any other circumstances relevant in the matter;
e) any harm that the child has suffered or is at the risk of suffering; and
f) where relevant, the capacity of the child’s parents, guardian or any other person involved
in the care of the child, and in meeting the needs of the child.
According to the case of Pulkeria Nakaggwa V Dominiko Kiggundu [1978] HCB 310; Welfare
was defined as in relation to children that all circumstances affecting the well-being and
upbringing of the child that have to be taken into account and the court has to do what a parent
acting for the interest of the child ought to do in the given circumstances
23
Furthermore, in Ayiiya v Ayiiya Petition No. 8 of 1973), the court held that in determining the
custody of a child the court will consider which of the parents will best safeguard or ensure the
welfare of the child. The court will also consider the disposition and all the psychological
attitude towards the child, the loving and warm atmosphere of the home from a parent or any
other person who means more in bringing up the child than all the money in the world.
The case of Rwabuhemba Tim Musinguzi v Harriet Kamakume (Civil Application 142 of
2009) [2009] UGCA 34 confirmed this position by holding that;
Parents have a fundamentally recognized constitutional right to care and bring up their children
in conjunction with the welfare of the child as the consideration to be taken into account, and at
that at times the Welfare principle itself may be the paramount consideration.
It has been considered therefore, that; a parent may only be denied the right to care for and raise
their child when it is clear and has been determined by a competent authority, in accordance with
law, that it is the best interest of the child that the child be separated from such parent.
Similarly, in Teopista Kayongo V Sekiziyivu [1973] HCB 24; court found that children of tender
years, should stay with their mothers unless she is not a fit and a proper person and where the
custody is taken away from the mother, the mother should be free to visit her children as often as
she pleases.
In Nakaggwa V Kiggundu (1978) HCB 310; both parents wanted custody of the child; court
held; In determining who should have custody of a child, it is well established that the paramount
consideration is the welfare of the child, such factors as the father’s natural and superior right to
the custody over the child as against the mother, the claims of other relatives and the conduct of
the parties, among others have to be taken into account. The term welfare though incapable of
an exact definition means in relation to custody, that all circumstances affecting the wellbeing
and up-bringing of the child have to be taken into account and the court has to do what a wise
parent Acting for the interests of the child ought to do.
Section 76(1) of the Children Act provides that a person who has custody of a child may make
an application for a maintenance order against the child’s father or mother.
24
II. INTERIM CUSTODY ORDER
Section 73A – Provides for an Interim custody order
Who makes the order?
- A probation and social welfare officer,
- A mother,
- A father
- A guardian of a child
Where to apply –
-Apply to the Family and Children’s court
When to apply-
-Pending the determination of custody of the child by the court
Documents
Rule 19 Children (Family and Children Court) Rules –
Rule 19(3) - Application shall be specified in Form 1 of the Schedule to the rules
Rule 19(1) - The application shall be supported by affidavit of the applicant
Requirements for the grant of the Order
Section 73A (3) - The court may issue an interim custody order, where the court is satisfied
that— the child is suffering or likely to suffer harm if the order for interim custody is not issued;
or the order is in the best interests of the child.
Section 73A (4) - An interim custody order may, where appropriate, contain any direction,
prohibition or award.
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III. DECLARATION FOR PARENTAGE
Who may make the application?
Section 67 of the Children Act Cap 59 [as amended] –
-The mother of a child;
-The father of a child;
-The guardian of a child;
-The child himself or herself through a next of friend
When to make the application;
Section 68 of the Children Act
-During pregnancy;
-At any time before the child attains eighteen years of age;
-Within three years after the death of the alleged father or mother.
-At any time after the three years specified in subsection (1)(c), with leave of the family and
children court.
Considerations to extend time
Section 68(3) Children Act as amended
-The welfare of the child;
-The time of knowledge of the alleged father or mother or of the birth of the child, as the case
may be, by the applicant;
-The conduct of the alleged father or mother where he or she knew of the birth of the child
alleged to be his or her child, or his or her conduct towards any other person having the custody
or control of the child.
Section 68(4) - An application for a declaration of parentage may be made whether the
child or the alleged father or mother is in or outside Uganda
26
Procedure
Rule 20 - Children (Family and Children Court) Rules –
-Complain on Oath – Under Form 2 in the schedule to the rules
Subject to Rule 4(1) (b) of the rules – the procedures are set out in the third schedule to the MCA
and the Civil Procedure Rules apply to an application for parentage
Service of Summons –
Section 69(2), 67(d) Children Act as amended
Summons in Chambers - Under Form 3 in the schedule to the rules
Court shall issue summons on receipt of the application to the respondent directing him/her to
appear in court on the date named in the summons
Section 69 Children Act as amended
On the appearance of the person summoned, or on proof that the summons was duly served,
seven days or more before the hearing, the court shall hear the evidence from both parties.
If the evidence of the applicant is corroborated in some material particular to the satisfaction of
court, the court may adjudge the person summoned to be the alleged parent.
The court may, on the application require any person to give any evidence which may be
material to the question, including a blood sample for the purpose of blood tests. Any person
sought to be tested must be made a party to the proceedings.
According to the case of Ndyabahika v Adyeri (Miscellaneous Application 69 of 2019),

paternity can be scientifically proven through DNA with the samples of the alleged father or
mother. Courts have held that in exercising its discretionary power to grant or not to grant the
relief (DNA testing), court should be convinced that the application is in good faith, and that it is
not designed to economically exploit or embarrass or is otherwise an abuse of the process of
27
court. The same position was reemphasised in MW v KC Kakamega High Court Misc.
Application No. 105 of 2004.
In S v S (1972) A.C 24, Lord Hodson held that the court should only allow blood testing to help
establish paternity, it should only decide against so if it is evident that it would be going against
the child’s best interests.
The burden to prove parentage lies on the person alleging it.
Where the name of the alleged parent of a child is entered in the register of births in relation to a
child, a certified copy of that entry shall be prima facie evidence that the person named is the
parent.
An instrument signed by the known parent and by any person acknowledging that the person is
the alleged parent of the child; if the instrument is executed as a deed; or if the instrument is
signed jointly or severally by each of those persons in the presence of a witness, be prima facie
evidence that the person named as the alleged parent is the parent of the child.
An order of a court for maintenance made against a person shall be prima facie evidence of
parentage in subsequent proceedings.
A declaration of parentage by the court under this Part shall, for all purposes, be conclusive proof
of parentage.
An order made by a competent court outside Uganda in any affiliation or similar proceedings
declaring or having the effect of declaring a person to be the parent of a child shall be prima
facie evidence that the person mentioned in that order is the parent of the child.
A reference, express or implied in a will written or oral, of any person to a child as his or her son
or daughter, as the case may be, is prima facie evidence that that person is the parent of that
child.
28
A statement, written or oral, by a deceased person confided to a person in a position of authority
indicating that the deceased is or was the parent of a particular child is prima facie evidence that
the deceased person was the parent of the child.
Section 70 Children Act as amended - Effect of declaration of parentage
A declaration of parentage by a court shall have the effect of establishing a blood relationship of
parent and child.
The child shall be in the same legal position towards the parent as a child actually born in lawful
wedlock.
A declaration of parentage shall not by itself confer rights of custody of the child upon the
declared parent.
IV. MAINTENANCE
Who may make the application?
Section 76 (1) of the Children Act Cap 59 [as amended] –
-Any person who has custody of a child
-The mother of the child;
-The father of the child;
-The guardian of the child,
-A child in respect of whom a declaration of parentage has been made may also make an
application through a next of friend for a maintenance order.
Against who –
Against the father or mother of the child, as the case may be
Section 76 (3) of the Children Act Cap 59 [as amended] –
When can the application be made

29
-During a subsisting marriage;
-During proceedings for divorce, separation or nullity of marriage; Section 84
-During proceedings for declaration of parentage;
-After a declaration of parentage has been made.
-At any time during pregnancy;
-Before the child attains eighteen years of age.
Procedure
Rule 19 Children (Family and Children Court) Rules –
Section 76(5) Children Act as amended –
Complaint on Oath
Rule 19(3) - Application shall be specified in Form 1 of the Schedule to the rules
Rule 19(1) - The application shall be supported by affidavit of the applicant
Service of Summons –
Section 76(5) (6) Children Act as amended
Summons in Chambers - Under Form 3 in the schedule to the rules
Court shall issue summons on receipt of the application to the respondent directing him/her to
appear in court on the date named in the summons
On the appearance of the person summoned, or on proof that the summons was duly served,
seven days or more before the hearing, the court shall hear the evidence from both parties and
30
then proceed to make an order against the father or mother for the payment to the applicant the
sum the court shall deem fit.
Section 77 Children Act as amended - Warrant to attach earnings or levy the distress for the
recovery of maintenance money at any time after the expiration of one month from the making of
a maintenance order, it is made to appear to a magistrate on oath that any sum to be paid under
the order has not been paid.
Section 78 Children Act as amended - Variation of maintenance orders on the application at

any time by the applicant for the maintenance order or by the person against whom the
maintenance order is made, the court may, make an order either increasing or decreasing the
amount of money previously ordered to be paid under the order.
-An order for maintenance against a parent shall cease to have effect on custody of the child
being granted to that father or mother or other person in his or her place by the court – under
Section 82.
-An order for maintenance may be made and enforced against the estate of a deceased person
who has been declared the father or mother of the child under a declaration of parentage.
-Where a declaration of parentage has been made, an order for recovery of arrears of expenses
incurred on the maintenance of a child may be made even after the death of the child.
Section 79 Children Act as amended - Money to be paid under section 76 to applicant or

custodian appointed by court under Section 80.
Section 79 Children Act as amended - Misapplying maintenance money shall be an offence.
Case law
In the matter of an application for maintenance by Griet Onsea for the infant Ayla Mayanja
Miscellaneous Application No. 20 of 2003, the court observed that in determining the question
of maintenance, the court must bear in mind the primary needs of the child concerned and
secondly the financial means of the parents. And in as much as parents may each make offers
and counter offers of what amount of maintenance should be granted, the court is the final arbiter
on the amount having regard to what is best for the interest of the child. The court also went
ahead and stated that in order to arrive at the amount of money which the father of the child
31
should pay towards the maintenance of the child, the court must weigh all the factors and
circumstances relevant to the child, applicant and the respond. The court thus has to strike a
balance whereby none of the parties is prejudiced or oppressed by the award.
(Learning Outcome 5 on ethical considerations handled jointly with similar outcome in

Workshop Two)
32
Workshop Two
Learning Outcome 1: Appreciate and apply the principles of law governing adoption in
Uganda; national and inter-country adoption.
Black’s law dictionary, 8th edition defines adoption as the creation of a parent-child relationship
by judicial order between two parties who are unrelated. And this definition was reiterated in the
case of Re Victoria Namutosi (Adoption Cause No. 9 of 2017).
Article 34(1) of the Constitution provides that children shall have the right to know and be cared
for by their parents or those entitled by law to bring them up. Section 4 of the Children Act, cap
59 as amended by the Children (Amendment) Act, 2016 (herein referred to as the Act)
emphasizes the same by stating that it is the right of every child to stay with their parents or
guardians.
Adoption can be national by citizens or inter-country where it is applied for by non-citizens.
Section 44 (a) of the Act provides that the chief magistrates court within the jurisdiction which
the child or the applicant resides has the jurisdiction to hear applications for adoption where the
applicants are citizens of Uganda.
Section 44(b) of the Act the High Court has jurisdiction where the applicants or the child is a non-
citizen.
It is important to note as emphasized in subsection 3 that a child need not be Ugandan to be

adopted.
 Pre requisites for adoption
Section 45 of the Act sets out the prerequisites for adoption in Uganda and they include the
following;
a) That the applicant or at least one of the joint applicants has attained the age of twenty-five
years and is at least twenty-one years older than the child.
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b) That in case of an application by one of the spouses the other has consented to the adoption.
The exception to this consent prerequisite as laid out in section 45(2) is where the spouse
whose consent is required cannot be found or is incapable of giving consent or the spouses
are separated and living apart and the separation is likely to be permanent.
These pre-requisites were considered in Re A M (a minor) Adoption cause 12 of 2017 the case of
where court held that the petitioners both being 25 years and 21 years older than the children fell
within the age requirement under section 45(1) of the Children Act as amended.
Section 45(3) is to the effect that an adoption order cannot be made in favor of a sole male applicant
in respect of a female child or a sole female applicant in respect of a male child unless court is
satisfied that there are special circumstances that justify this. This was considered in the case Re
Edith Nassazi, High Court Adoption Cause No. 4 of 1997 and this case both the petitioner and
the child were female.
Another pre-requisite is set out in subsection 4 requires that the applicant shall should have
fostered the child for a period of net less than 12 months under the supervision of a probation and
welfare officer.
The probation and welfare officer is required under subsection 6 to submit a report to assist the
court in considering the application and if need be, the court shall require some other person or
local authority to make a report in respect of the application
Rule 10(2) of the Children (Adoption of Children) Rules Statutory Instrument 59-1(herein
referred to as the rules) provides that the reports shall cover the period of fostering and shall include
among other things;
a) The child’s relationship with the foster parents or parents and details of any guardiancy,
other members of the foster family, neighbors and any other person who is not the parent
that has rights and obligations towards the child.
b) The medical and current state of health of the child and foster family
c) Education standard of the child with details of school attended and progress made with the
foster parents
d) Views and wishes of the child
e) Nature and type of the foster family residential home
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f) Past, current and likely future economic status of foster parents
g) Character of the foster family e.g. criminal proceedings against members of the family
during fostering and the officer’s view on whether that should prevent adoption.
h) A summary of involvement of the probation and social welfare officer during the fostering
and assessment of the discharge of the duties of the foster parents during the statutory
period, and verification of the statements made by the applicants and position of his or her
country relating to the adoption.
i) Recommendation to the court of the course or courses of action most likely to advance the
best interest of the child.
Section 45 (6) of the act stipulates that an application authorizing more than one person to adopt
a child at same time shall only be made if it is made by spouses jointly.
 Intercountry adoption
Section 46 of the Act provides for intercountry adoption that allows a person who is not be citizen
may in exceptional circumstances adopt a Ugandan child. The conditions under which are non-
citizen may adopt a Ugandan child include the following;
a) He/she has to have stayed in Uganda for at least one year.

b) Has fostered the child for at least one year under the supervision of a probation and social
welfare officer.
c) Does not have criminal record
d) Has a recommendation concerning his or her suitability to adopt a child from his or her
country’s probation and welfare office or other competent authority and
e) Has satisfied court that his/her country of origin will respect and recognize the adoption
order.
The requirements were laid in the matter of an application for adoption by Ochaya Christopher
& Sarah Joan Ochaya in respect of Lamaro Lillie Ochaya HCMA no. 0028 of 2017 where court
held that an applicant for adoption in inter-country adoption must; have stayed in Uganda for at
least 12 months, fostered the child for 12 months, must not have a criminal record, must have a
recommendation concerning his or her suitability to adopt a child from their country’s probation
35
and welfare office or other competent authority and satisfy court that his or her country of origin
will respect and recognize the adoption order.
Subsection 3 of section 46 requires the probation and social welfare officer who carried out
supervision in section 46(1) (b) shall be required to submit a report to assist the court in
considering the application of adoption. And court may require some other person or authority to
make a report in respect of the application.
Section 46(4) of the act provides that court may waive any of the above-mentioned requirements
in exceptional circumstances. In the matter of Sidney Stephen Harper & Wendy Annette Harper
and Musinguzi Davis alias Elijah David Harper, adoption cause no. 1 of 2018 it was held that
although they had not fostered the child for the required minimum of one year, section 14 of The
children (Amendment) Act, 9 of 2016 amended section 45 (4) by permitting court in exceptional
circumstances to waive any of the specified requirements.
It is important to note as provided for under section 46 (6) of the act, that while inter country is
accepted and provided for in the act, it shall be considered as the last option available to orphaned,
abandoned or legally relinquished children, a long a continuum of comprehensive child welfare
services. Under s.46 (7) of the Act Continuum shall mean for purposes of this section a broad
range of preventive services and economically based family-centered care options which included
family prevention, kinship care, and foster care and institutionalized.
 Rescission of adoption
Section 46 A (2) of the Children Act is to the effect that court can rescind an adoption application
if the rescission order is in the best interest of the child or if the order was obtained through fraud
or misrepresentation.
And under section 46 A (3) where an adoption has been rescinded the adoption order shall cease
to apply in respect of the child and all responsibilities, rights and other matters which had
previously terminated in respect of the order shall be restored.
Section 46A (4) of the act stipulates that when rescinding an adoption order court shall make
appropriate placement order in respect of the child, order that the child be kept in temporary safe
36
custody until an appropriate placement can be made or make an order where necessary for
restoration of the child.
 Consent
Section 47 of the Children Act stipulates that consent of the parents if they are known and this
consent maybe revoked at any time before the pronouncement of the adoption order and the court
may dispense with this consent of parents are capable of giving it.
Section 47(2) of the Children Act provides allows court to dispense the consent if the parents are
incapable of giving it.
In Re Michael Lumu Adoption Cause No 8 of 2000 it was stated that the gist of Section 47(1) of
the Act is that parental rights should be respected and discarded only if the biological parent is
deceased, cannot be found or is incapable of giving their consent. All this must still be considered
within the context of the best interests of the child with due regard to the child’s wishes having
regard to their age and understanding. The purpose of the consent under that section was to
emphasize the right of the parent over the child. His parental right should only be discarded in the
interest and welfare of the child.
In Re Peter Sebuliba alias Namansa James (Misc. Cause No. 37 oF 2009) ((Misc. Cause No. 37
of 2009)) [2010] UGHC 124 (2 June 2010) it was held that consent is only dispensed with if the
parent is “incapable” of giving it. My understanding of the incapacity envisaged in this case would
be similar to incapacity under the law of contract. It would include situations in which the parent
is mentally ill, is a minor (i.e. below 18 years), or where he/she is perpetually intoxicated.
Section 47 (3) of the Act provides that while application is pending, a parent who has given
consent is not entitled except with leave of court to remove the child from the custody of the
applicant.
Section 47 (5) & (6) stipulates that if in the view of court, a child is able to understand adoption
then his or her view shall be taken into consideration. And if the child is at least 14 years of age,
his or her consent to adoption must be obtained.
Subsection 7 provides that if it appears to court that any other person not being the parent of the
child has any rights and obligations towards the child under any order, agreement or customary
37
law, there consent will be sought. And under subsection 8 the court may require the probation and
social officer to prepare a report and determine whether there is any other person who is not a
parent that has rights and obligations towards the child and whether their consent ought to be
sought.
Rule 8 (1) Children (Adoption of children) Rules provides that consent required by the act shall
be given in form c in the schedule of the rules except for the consent of a child over the age of
fourteen years which shall be given in form D.
Rule 8(2) all consents shall be sworn before a commissioner of oaths and submitted with the
affidavit of verification with the petition or accompanied by a separate affidavit of verification.
 Functions of court
Section 48 of the act lays down the functions of court during application for an adoption order
which include the following;
Under section 48(1) (a) of the act court shall be satisfied before making the order that every person
whose consent is required and is not dispensed with has consented and understands the nature and
effects of adoption that is that it permanently deprives that person of the parental right to the child.
Section 48 (1) (b) court shall make the order for the welfare of the child and due consideration
will be given to the wishes of the child with regard to his or her age and understanding.
s.48 (1) (c) of the Act provides that one of the duties of the court in an application for adoption is
to ensure that the applicant, or any person on behalf of the applicant, has not paid or agreed to pay
money or anything in place of money to the parent, guardian or any person in charge of the child
in consideration of the adoption of the child. In Re Peter Sebuliba alias Namansa James (supra)
court stated that there appears to have been some consideration for the adoption.
In the case of Re Edith Nassazi (supra) It was stated that the court before making an adoption
order, be satisfied by the following;
a) A person whose consent is required and is not dispensed with has consented and understands
the nature and effect of the adoption, namely that it will permanently deprive that person of
parental rights over the adopted child.
38
b) The order if made will be for the welfare of the child, due consideration being given to the
wishes of the child having to his or her age and understanding.
c) The applicant has not received or agreed to receive and that no person has made or agreed to
make the applicant, any payment or other reward in the consideration of the adaption and,
d) The applicant or any person on behalf of the applicant has not paid or agreed to payment or
anything in place of money to the parent, guardian or any person in charge of the child, in
consideration of the adoption of the child.
e) The court may in any adoption order, include such terms and conditions as it thinks fit.
 Effect of adoption
The effect of adoption is set out in section 51 which is that all rights and obligations and liabilities
of the parents and guardians in relation to the future custody, maintenance and education of the
child including the rights to appoint guardians and consent or give notice of consent to marriage
are extinguished. They shall vest in, be exercised by and enforceable against the adopter.
Section 52 of the act stipulates that where the adopter dies intestate his property shall devolve in
all respects as if the adopted child were the natural child.
Regarding wills, section 53(1) of the Act provides that any testamentary disposition of property
made after the date of adoption order, any reference whether expressed or implied to the child or
children of the adopter shall be construed to include the adopted child.
Section 54 of the act provides that the registrar of births and deaths shall maintain an adopted
children register in which shall be registered particulars of adoption under this act.
Section 55 of the Children Act is to the effect that when the child attains the age of 18 years or
at an earlier age at the request of the child or at the discretion of the child, the adopter shall inform
the child of the identity of his or her natural parents except where it is not in the best interest of
the child.
 Forum
39
Under section 44 of the Children Act and Rule 3 (1) and (2) the chief magistrates court has
jurisdiction to hear applications by citizens made under form A in the schedule of the rules and
the high court for application by non-citizens made under form B of the schedule.
 Procedure
Under Rule 3 the application for adoption is by petition
Rule 3(3) stipulates that the petition shall be presented ex parte by the petitioner before the chief
magistrate of judge and the judge or magistrate shall give directions to serve appointment of a
guardian ad litem any further consents as may be enquired.
Rule 3(4) the probation and welfare officer under whose supervision the child was shall be present
at the ex parte hearing and shall attend the subsequent hearings as directed by court in order to
advise the court.
Rule 5 stipulates that the petition shall be served on the parent or parents of the child, or the
guardian or person who has actual custody of the child, or the person liable to contribute to the
support of the child or the child if of age of fourteen years and above. And rule 6 provides the
mode of service, that the petition shall be served by an officer of court by delivering or tendering
a copy of it signed by the Registrar or Chief magistrate and sealed with the seal of court on the
person to be served.
Rule 7 stipulates that the statements contained in the petition shall be verified by an affidavit to
which shall be annexed certificates and other documents proper for proving the allegation in the
petition.
Rule 9 (1) the age of the child shall be proved to the satisfaction of the court which may admit
documentary or other evidence to determine the age. A certified copy of an entry in the births
register issued by a Ugandan registrar under the Birth and Registration Act shall be considered
prima facie evidence.
Rule 9 (3) court may inquire into the age of the child and make an order for a medical
examination in Form E. A certificate signed by a medical officer as to the age of the child shall
be the evidence of the age.
40
Rule 11 stipulates that the guardian ad litem or the persons whose consent is required by the act
may file an affidavit in response to the petition.
Under rule 12 when all the documents have been filed and served to the satisfaction of the court,
the court shall fix a date for a hearing and give notice to all the parties in form F of the schedule.
As stipulated by rule 13 the judge and the magistrate or judge shall sit in camera and shall not
interpose any other matter during the hearing of adoption proceeding.
Section 49(1) of the Act provides that the Chief Justice may by statutory instrument make rules
regarding all matters under this part and procedure to be followed by the court in adoption
proceedings.
Rule 14 provides for secrecy that the documents shall be confidential and kept secret by the
registrar or chief magistrate. And rule 15 provides that no copy or duplicates of order made shall
be served on any other person other than the petitioner, probation and social welfare officer and
the Registrar General except where the Judge or chief Magistrate directs otherwise.
Section 50 of the Act provides that appeals shall be in the case of the Chief Magistrates court be
made to the High Court and in the case of the High Court to the Court pf Appeal.
DOCUMENTS
a) Adoption where all parties are citizens of Uganda

Republic of Uganda
Form A.
Petition for Adoption of Child.
(All parties Uganda citizens.)
The Children Act.
In the Chief Magistrate’s Court at _________________________
In the matter of the Children Act and in the matter of ____________________
(name of child) of __________________ Village _______________ Sub county
____________________ District
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The petition of______________________________________ (petitioner)
______________________________________________ (address) (and
_____________________________ (his/her spouse), of the same address) states as follows—
1. The petitioner(s) is (are) desirous of adopting the child
____________________________ under the provisions of the Children Act.
2. The petitioner(s) is (are) resident at _______________________ Village
_______________________ Sub county _______________________ District of Uganda,
and is (are) citizen(s) of Uganda.
3. The petitioner ________________________________________ is unmarried (was
married) to the co-petitioner_______________________ (his/her spouse/former spouse),
at __________________________________ (address) on the ______ (day)
______________ (month) _____ (year).
4. The petitioner __________________________ is by occupation a
_____________________, and the co-petitioner _____________________ is by
occupation a ________________________________.
5. The petitioner _________________________________________ is ____ years of age
(date of birth _____ (day) ________ (month) ____ (year)), and the co-petitioner
_____________________ is ____ years of age (date of birth _____ (day)
________(month) ____ (year)).
6. The petitioner(s) has (have) resident with him/her (them) the following persons, namely,
_________________________ (son),aged ________ years,
_________________________ (daughter),aged years, and
others____________________________________________________________
____________________________________________________________
______________________________________________________________
7. The petitioner ___________________________________ is related to the child
______________________________________________ as follows
____________________________________________ (and the co-petitioner
____________________________________________ is related to the child
______________________________________________ as follows) (or, the petitioner(s)
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_________________________ and _______________________ is not (are not, nor is
either of them) related to the child.
8. The child __________________________ is—
(a) of the ____________ sex;
(b) unmarried;
(c) a child of ______________________________________ (father) of
_________________ Village _________________ Subcounty ________ District and of
________________________ (mother) of _________________ Village
_________________ Subcounty ___________________ District;
(d) a citizen of Uganda _______________ ;
(e) ________ years of age, having been born at _________________ on the ______
(day) ______________ (month) _____ (year);
(f) resident at ___________________________________________;
(g) now in the actual custody of _______________________ (name) of
_____________ Village _________________ Subcounty __________________ District;
(h) under the guardianship of _________________________ (name) of
_______________ Village ________________ Subcounty __________________
District;
(i) entitled to the following property _________________________
____________________________________________________
____________________________________________________
9. The following persons are liable to contribute to the support of the child—
(a) __________________________________________________ of _____________________
Village _______________ Subcounty _____________________ District;
(b) __________________________________________________ of _____________________
Village _______________ Subcounty _____________________ District.
10. The petitioner(s) __________ _________ and _____________________ annexes (annex) the
following consents required under the Children Act—
Name of person Relationship with Date of consent
Consenting child
_____________ ________________ _____________
43
_____________ ________________ ______________
11. The child _____________________________ has not been the subject of an adoption order
or of an application or petition for an adoption order except that (state order and application or
petition, if any).
12. The petitioner(s) has not (have not nor has either of them) received or agreed to receive and
no person has made or given or agreed to make or give to the petitioner(s) (or either of them) any
payment or reward in consideration of the adoption of the child
______________________________________.
13. The child ____________________________has been fostered by the petitioner(s) since the
the ______ (day) ___________ (month) _____ (year), under the supervision of
____________________________________, a probation and social welfare officer, whose
report is attached to this petition.
14. It is proposed that the costs of this petition shall be paid by
____________________________________________________________. The petitioner(s)
prays (pray)—
(a) that an order for the adoption of the child ___________________ by the petitioner(s) be
made under the Children Act with all necessary directions;
(b) that the costs of this petition be provided for as above-mentioned or otherwise as the court
may direct; and (c) that such further or other order be made as the nature of the case may require.
Signed _______________________________________________, Petitioner
Witnessed _______________________________________________ (name) _______________
(occupation), of _________________________ (address)
Witnessed ______________________________________________ (name) _______________
(occupation), of _________________________ (address)
44
Application for adoption by non -citizens
Republic of Uganda
Form B.
Petition for Adoption of Child.
(Party non-Uganda citizen.)
The Children Act.
In the High Court of Uganda
In the matter of the Children Act and in the matter of
___________________________________________ (name of the child)
Of________________________________________________________Village of
___________________________________________ Sub County.
The petition of _____________________________________ (petitioner) of

____________________________________________________________________________
(address in Uganda and address in foreign country), (and _______________________________
(co-petitioner) his/her spouse, of the same address) states as follows—
1. The petitioner(s) is (are) desirous of adopting the child __________________ under the
provisions of the Children Act.
2. The petitioner __________________________________________ of
____________________________ (L.C. I zone) _________________ (town)
___________________ Uganda is a citizen of __________________ (foreign country), who first
arrived in Uganda on the ______ (day) ______________ (month) _____ (year) and has stayed in
Uganda at the following address (es)
Address L.C. I From To
____________ _______________ _____________ ________________
__________ _________________ _______________ _________________
The co-petitioner _______________________________________________ of
____________________________________________ Uganda is a citizen of
_____________________________ who first arrived in Uganda on ________________ and has
stayed in Uganda at the following address(es)
45
Address From To
_____________________ ________________ ____________
______________________ ________________ ____________
_____________________ ________________ ____________
3. The petitioner _______________________________ is unmarried (was married) to the co-
petitioner ______________________________________, (at ________________ on the ______
(day) ________ (month) _____ (year) (which marriage is supported by evidence annexed)).
4. The petitioner _______________________________ is by occupation a
___________________, and the co-petitioner _______________________ is by occupation a
___________________.
5. The petitioner ________________________________________is ____ years of age (date of
birth _____ (day) ________ (month) ____ (year)), and the co-petitioner
_____________________ is ____ years of age (date of birth _____ (day) ________(month)
____ (year), these dates supported by evidence of birth annexed.)
6. The petitioner ___________________________________ is related to the child
______________________________________________ as follows
____________________________________________ (and the co-petitioner
____________________________________________ is related to the child
______________________________________________ as follows) (or, the petitioner(s)
_________________________ and _______________________ is not (are not, nor is either of
them) related to the child.
7. The petitioner _____________________________________ annexes a certificate marked
_______________ that he/she does not have a criminal record from ________________ (country
of origin) and affirms that he/she does not have a criminal record in Uganda or any other
country. The co-petitioner ________________________________________ annexes a
certificate marked ____________________ that he/she does not have a criminal record from
___________________ (country of origin) and affirms that he/she does not have a criminal
record in Uganda or any other country.
8. The petitioner ____________________________________ attaches a recommendation
concerning his/her suitability to adopt a child from ______________________ (recommender)
of _____________________ the probation and welfare office/other authority (specify) in
46
_________________ country of origin of petitioner
_____________________________________. The co-petitioner
_________________________________________ attaches a recommendation concerning
his/her suitability to adopt a child from _____________________ (recommender) of
____________________ the probation and welfare office/other authority (specify) in
_________________ country of origin of co-petitioner
__________________________________.
9. The petitioner(s) has (have) resident with him/her (them) the following persons, namely,
____________________________(son), aged ______ years,
_____________________________ (daughter), aged ______ years, and (others)
____________________________________________________
______________________________________________________________
10. The child __________________________ is—
(a) of the ________________ sex;
(b) unmarried;
(c) a child of ______________________________________ (father) of ________________
Village __________________ Subcounty _______________________________________
District and of ____________________________________________ (mother) of
________________ Village __________________ Subcounty _______________________
District;
(d) a citizen of ___________________________________________;
(e) ______ years of age, having been born at ___________________ the ______ (day)
______________ (month) _____ (year);
(f) resident at ____________ Village ______________ Subcounty
__________________________________ District;
(g) now in the actual custody of ___________________________ of _____________ Village or
(L.C.V.) ______________ Subcounty ___________________ Town or _________________
District;
(h) under the guardianship of ______________________________ of
__________________________________ Village or (L.C.V.) _____________ Subcounty or
Town _______________ District;
47
(i) entitled to the following property
________________________
__________________________________________________
__________________________________________________
___________________________________________________
11. The following persons are liable to contribute to the support of the child—
(a) _____________________ of _____________________ Village _________________ Sub
county __________________ District;
(b) _____________________ of _____________________ Village _________________ Sub
county __________________ District;
(c) others ______________________________________________.
12. The petitioner(s) ______________________ and __________________ annexes (annex) the
following consent(s) marked No. __________________, required under the Children Act.
Name of person Relationship with Date of consent
Consenting child
____________________ _________________ __________________
____________________ _________________ __________________
____________________ _________________ __________________
13. The child has not been the subject of an adoption order or of an application or petition for an
adoption order (except that) (state order and application or petition, if any).
14. The petitioner(s) has not (have not nor has either of them) received or agreed to receive and
no person has made or given or agreed to make or give to the petitioner(s) (or either of them) any
payment or reward in consideration of the adoption of the child,
______________________________________.
15. The child, ____________________________, has been fostered by the petitioner(s) since the
______ (day) ______________ (month) _____ (year) under the supervision of ______________,
a probation and social welfare officer, whose report is attached to this petition.
16. The petitioner(s) affirms (affirm) that an adoption order made by this honourable court will
be respected and recognised by __________________ the country of origin of petitioner
______________________________ (and _____________ the country of origin of petitioner
48
____________________), and produces (produce) a sworn statement annexed marked
____________________ to that effect.
17. It is proposed that the costs of this petition shall be paid by the petitioner(s)
_____________________ and _________________________
The petitioner(s) prays (pray)—
(a) that an order for the adoption of the child, ___________________________, by the
petitioner(s) be made under the Children Act with all necessary directions;
(b) that the cost of this petition be provided for as above-mentioned or otherwise as the court
may direct; and
(c) that such further or other order be made as the nature of the case may require.
Witnessed ______________________________________________ (name) ________________

(occupation), of ________________________ (address)
Signed _______________________________________________, Petitioner Witnessed
______________________________________________ (name) ________________
(occupation), of ________________________ (address)
49
Consent form C
Republic of Uganda
Form C.
Consent to Adoption.
The Children Act.
(Title as in petition)
In the ________________________ Court of _______________
Cause No. _________________ of _______________________
_________________________________________, Petitioner(s)
Whereas the petitioner(s) has (have) petitioned or intend(s) to petition the court for an adoption
order in respect of the child, _____________________, I, ______________________________
(name) of _____________________ (address) _____________________, being the
mother/father/other person with rights or obligations in respect of the child (specify) or spouse of
the petitioner, consent to the adoption of the child by the petitioner(s) and acknowledge that an
adoption order will vest all parental rights and obligations in respect of the child in the
petitioner(s).
Signed _______________________________________________________
The contents of this form were read to _______________________________ and explained to
him/her, and I established that he/she understood them before signing this form before me—
_________________________________
Commissioner for Oaths
Dated this ______ day of _______________, 20 ____ rule 8(1).
Form D
Republic of Uganda
Form D.
Consent to Adoption.
The Children Act.
(Title as in petition)
50
In the _______________________ Court of ______________ Cause No.
___________________ of ___________________
________________________________________ Petitioner(s)
Whereas the petitioner(s) has (have) petitioned or intend(s) to petition the court for an adoption
order in respect of me, I ____________________________ of ___________________________
(address), being the subject of the petition, consent to my adoption by the petitioner(s) and
acknowledge that an adoption order will vest all parental rights and obligations in respect of me
in the petitioner(s).
Signed _________________________________________________, Child The contents of this
form were read to the child, ______________________, and explained to him/her, and I
established that he/she understood them before signing this form before me.
__________________________________
Commissioner for Oaths
Dated this ______ day of _______________, 20 ___
51
Learning Outcome 2: Appreciate and apply the principles of law on Guardianship and foster
care in Uganda
FOSTER PARENTING
Section 6(2) of the Children Act Cap 59 (as amended 2016) is to the effect that upon the demise
of the natural parents, parental responsibilities may be passed on to relatives of either parent, or by
way of care order, to the warden of an approved home, or to a foster parent.
Section 1(v) of the Children Act Cap 59 (as amended 2016) defines a foster parent to mean a
person not being the biological mother, father or relative of the child who assumes parental
responsibility of the child by way of a care order.
A foster parent is defined under Rule 2(d) of the Foster Care Placement Rules SI 43 to mean a
child placed with a foster parent or foster family. The foster family under Rule 2(e) of the Foster
Care Placement Rules SI 43 is a family in which a child is placed.
The law also defines Foster care placement under Section 1 (i) of the Children Act Cap 59 (as
amended 2016) to mean the placement of a child with a person who is not his/her parent or relative
and who is willing to undertake the care and maintenance of the child.
The law on who may be foster parents is set out under Rule 5 of the Foster Care Placement
Rules SI 43 which who are either a husband and wife; or a single woman or man not below the
age of 21 years. It however restricts a single man from fostering a female child.
A non-citizen under Rule 5 (3) of the Foster Care Placement Rules SI 43 is required to be citizen
in order to foster a child in Uganda. In Re Howard Little (an infant) & Francis Palmer (an
infant); court held that S.43 and Rule 5 of the Foster Care Placement Rules provide that for a non-
citizen to qualify as a foster parent, they must be resident in Uganda.
Section 43J of the Children Act Cap 59 (as amended 2016) provides for conditions to be met
by Child placement organization outside Uganda such as the requirement to submit an annual
progressive report to the probation and social welfare officer and to the Ugandan Diplomatic
Mission in the Country of residence detailing the welfare of the child, the adoption of the child to
his or her new environment and any changes in the guardian’s status of living; submit any change
52
of address of the child placement organization mentioned in subsection (1)(a), where
the guardian changes his or her physical address.
Under Section 43J (2) of the Children Act Cap 59 (as amended 2016) the probation and social
welfare officer is mandated to within one month of receiving the reports transmit them to the court
that made the guardianship order and to the Minister responsible for children affairs in Uganda.
The conditions for foster care placements provided for under Section 43(1) of the Children Act
Cap 59 (as amended 2016) are that where a child has been committed to an approved home under
a care order, the district probation and social welfare officer, in conjunction with the warden of the
approved home, may place the child with a person who is willing to undertake the care and
maintenance of the child, in this Part referred to as a “foster parent.
The detailed pre-conditions as set out under Rule 6(1) of the Foster Care Placement Rules SI 43
are that a child shall not be placed with a foster parent who is not a relative of the child unless;
a) A probation and social welfare has interviewed the prospective foster parent and assessed
that he or she is a suitable person to foster a child.
b) A probation and social welfare officer has visited the home of the prospective foster parent
and has confirmed in writing that it is likely to meet the requirements of the particular child
and that the conditions in it are satisfactory.
c) Two persons who know the prospective foster parent well vouched for his or her good
character and suitability to care for the child. And one of the two persons shall be the
secretary for the children’s affairs of the village local council or the village chief.
d) It has to be established that no person in the household of the prospective foster parent is
suffering from any physical or mental illness likely to affect the child adversely.
e) It has also to be established that no person in the home has been convicted of a serious
criminal offence rendering it undesirable for the child to associate with that person,
53
f) The wishes of the child so far as can be ascertained concerning the proposed fostering have
been ascertained and have , so far as practicable, been taken into account.
The rules also provide for more considerations such as religion under Rule 7 of the Foster Care
Placement Rules SI 43 where preference for fostering is given to a person of the same religion
and in the absence of such an undertaking by the foster parent to bring the child up in its religion.
Secondly is the cultural consideration under Rule 8 of the Foster Care Placement Rules SI 43
where again preference is given to a foster parent of the same cultural origin.
There is also a requirement for a pre-medical examination under Rule 10 of the Foster Care
Placement Rules SI 43 by medical personnel not below a rank approved by the director medical
services; with emergency situations as the exception where the examination is done after
placement within four weeks thereof.
There is a duty under Rule 14 of the Foster Care Placement Rules SI 43 to notify the illness to
the supervising officer of the foster child as soon as possible. The notice also extends to death of
the foster child within forty eight hours to the supervising officer under Rule 15 of the Foster
Care Placement Rules SI 43 with extra requirements of obtaining a medical certificate of death
and post-mortem report.
The effect of a foster care placement is captured under Section 43 (3) of the Children Act Cap
59 (as amended 2016) where a foster parent in whose care a child is committed shall, while the
child remains in his or her care, have the same responsibilities in respect of the child’s maintenance
as if he or she were the parent of the child.
The mode of application to foster a child under Section 43 (2) of the Children Act Cap 59 (as
amended 2016) is made to the district probation and social welfare officer. Subsection 4 provides
that a foster care placement shall be made in accordance with the rules set out in the Second
Schedule to this Act. Under Rule 4 of the Foster Care Placement Rules SI 43 a person interested
in fostering a child must complete the application form specified in FORM 1 of the schedule of
these rules and submit it to the district probation and social welfare or to the warden of an approved
home.
There is also a requirement under Rule 9 of the Foster Care Placement Rules SI 43 to sign an
undertaking specified in Form 2 in the Schedule in the presence of a witness.
54
GUARDIANSHIP
Guardianship in relation to property of an infant
Section 1 (w) of the Children Act defines a guardian as a person having parental responsibility
for a child.
In the case of RE: Onen Cliff Mills & Laker Joy Onen (minors) Misc. Civ. Applic.No.0022/2018,
a guardian was defined as a person who is given legal power to make discussions for another
person because he/she is considered not competent to decide for himself/herself.
The application for guardianship of children in Uganda as set out under Section 43A (1) of the
Children Act as amended by the Children (Amendment) Act, Act 9/2016 is by citizens of
Uganda. Application for legal guardianship of a child according to Section 43B (a) of the
Children Act as amended by the Children (Amendment) Act, Act 9/2016 may be made by any
person above the age of 18 years.
Before making the guardianship order, Court has to satisfy itself that the order is in the best
interests of the child as set out under Sections 3 and 4 of The Children Act Cap 59 as amended
2016 that require it to be guided by the welfare principle and best interest of the child. In the
matter of Lillian Nattema and Rogers Watanda Misc. App. 35/2000; the court noted that welfare
principle should be observed where guardianship is granted for; Upbringing and managing of
child’s property; application of any income arising from it; or where the guardianship is for the
management of the child’s property it should be managed for the benefit of the child.
The role of court in applications for legal gurdianship is to exercise exercise a Parens patriae
authority. In RE Adriko Reuben (a minor) Misc Civil App No. 08/ 2016 Stephen Mubiru, J held
that in matters of this nature, where the legal property rights of children are involved, yet by virtue
of their status as legal incompetents, the children do not have the capacity to safeguard those rights
on their own, the judge is expected to put himself in the position of a wise, affectionate and careful
parent.
The dealings in the property of the child must be used for the benefit of the child. In Re Mavin
Kakooza (infant) family cause 236 of 2013, court held that where the applicant who is the child’s
biological mother seeks an order that will enable her sell land jointly owned by her and her child
55
and where the child who is of understanding age is not opposed to the sell such order would not
be denied if it is in the best interest of the child that is to pay school fees and build a residential
house.
Also take note in the matter of In an application for guardianship by Wandera Peter (Family
and Children’s cause No 0004 of 2017) it was held that as a precaution may order the applicant
to execute a non-cash bond, without sureties, as necessary for the protection of the child and the
estate of the child, conditioned upon the faithful discharge by the guardian of his authority and
duties according to law.
The procedure for application for legal guardianship is provided for under S. 43B of the Children
Act Cap 59 as amended. The application shall be made to the High Court by way of petition in
Form 1 of the Third Schedule and shall be accompanied by a report of the probation and social
welfare officer. The application takes the mode of an ex-parte application under S. 3 of the
Children Act as amended and sections 43A, 43B and 43F of the Children (Amendment) Act 2016.
Upon the grant of the order of legal guardianship, there is a requirement to have it registered under
Section 43I of the Children Cap 59 (as amendment, 2016) within 14 days after the grant with
Uganda Registration Services Bureau and the Ministry of Gender, Labor and Social Development
and also submit a copy to the National Children Authority.
Section 43M of Children Act Cap 59 lays down several offences by the administrator of the
estate of a child such as where the administrator neglects, misappropriates, wastes or occasions
loss or damage to any asset forming part of the estate of a child; fails to submit to court, or
the parent or guardian of the child any account or inventory required by law; or produces an
inventory or an account which is false in any material particular, knowing it to be so, commits an
offence and is liable, on conviction, to a term of imprisonment not exceeding five years or to a fine
not exceeding one hundred and twenty currency points or both.
Under Section 43M (2) of Children Act Cap 59 the court may in addition to the penalty imposed
under subsection (1) require the person so convicted to make good any loss or damage caused.
Under Section 43M (3) of Children Act Cap 59 the court shall exercise its discretion in
determining the modalities of accountability in guardianship matters.
56
Legal guardianship is set out under Section 43A of Children Act Cap 59 which provides that it
is only citizens of Uganda who are eligible to apply for legal guardianship.
Application for legal guardianship under Section 43B of Children Act Cap 59 provides that
applications may be made by any person above the age of eighteen years; made to the High Court;
the application is by petition in Form 1 set out in the Third Schedule; and must be accompanied
by a report of the probation and social welfare officer.
Section 43C of Children Act Cap 59 (as amended) provides for customary guardianship. It
provides that the family members may appoint a guardian of a child in accordance with their
customs, culture or tradition where both parents of the child are deceased or cannot be found; the
surviving parent is incapacitated; or where the child has no guardian or any other person
having parental responsibility for him or her.
Under Section 43C (4) of Children Act Cap 59 defines “customary guardianship” to mean
parental responsibility of a Ugandan child by a Ugandan citizen resident in Uganda in accordance
with the customs, culture or tradition of the respective people.
Under Section 43C (2) of Children Act Cap 59 a customary guardian so appointed is required to
act as trustee in respect of the property of that child. Under Section 43C (3) of Children Act Cap
59 misappropriation the property of a child is an offence and on conviction one is liable to a term
of imprisonment not exceeding five years or to a fine not exceeding one hundred and fifty currency
points or both.
Section 43D of Children Act Cap 59 provides for the appointment of a guardian by agreement;
where the parent of a child by agreement or deed, appoint any person to be a guardian. The
agreement or deed must be dated and signed by the parent in the presence of two witnesses, one
of whom must be a probation and social welfare officer, and the other must be a local councilor at
LC I level.
The law caters for appointment of joint guardians of a child either two or more under Section 43D
of Children Act Cap 59 by court. Where the two or more persons appointed to act as joint
57
guardians in respect of a child are unable to agree on any matter affecting the welfare of a child,
any of them may under Section 43D (2) of Children Act Cap 59 apply to the court for its direction.
The conditions before grant of guardianship which the court must satisfy itself under Section 43F
of Children Act Cap 59 of include: whether there is no known relative or next of kin of the child;
the relative or next of kin are unwilling or unable to take parental responsibility of the child;
all alternative care options available to the child have been exhausted; the child is suffering or
likely to suffer significant harm under present custody; consideration has been given to the wishes
of the child, having regard to the age and understanding of the child, where in the view of the court,
the child is able to understand the guardianship proceedings; and where the child is twelve years
of age or above, his or her consent to the guardianship has been obtained, unless it is impossible
for the child to express his or her consent.
The requirements before grant of a guardianship order under Section 43F (2) of Children Act
Cap 59 are that court must satisfy itself that the applicant has continuously lived in Uganda for at
least three months; does not have a criminal record; and has a recommendation concerning his or
her ability as a guardian from a probation and social welfare office or other competent authority in
Uganda or in applicant’s country of residence; the applicant has not made, given or agreed to make
any payment or other reward in consideration of the guardianship.
Under Section 43F (4) of Children Act Cap 59 the court may dispense with any consent required
under this section if satisfied that the person whose consent is to be dispensed with has abandoned,
or deserted the child, cannot be found or is incapable of giving consent or being a person
responsible for the support of the child, has persistently neglected or refused to contribute to the
support of the child.
Under Section 43F (5) of Children Act Cap 59 the court may, in addition to the report of the
probation and social welfare officer require a local authority, the probation and social welfare
officer in the relevant District in Uganda or any other person to make a report in respect of the
guardianship application.
58
The effect and duration of a guardianship order under Section 43H of Children Act Cap 59 is
that the guardianship order vests parental responsibility of the child in the guardian.
Under Section 43H (2) of Children Act Cap 59 a guardianship order remains in force until
the child in relation to whom it is issued attains the age of eighteen years. Also under Section 43H
(3) of Children Act Cap 59; the guardianship order ceases to apply where the guardian dies or is
suffering from infirmity of body or mind.
Section 43I of Children Act Cap 59 provides for registration of guardianship order within
fourteen days after its grant, with the Uganda Registration Services Bureau; Ministry of Gender,
Labor and Social Development; and also submit a copy to the National Children Authority. The
mode of registration of a guardianship order is in Form 2 as set out in the Third Schedule.
Revocation of guardianship order is guided by Section 43K of Children Act Cap 59 which
provides that that the probation and social welfare officer or a relative of a child under
guardianship may apply to court to revoke a guardianship order.
Under Section 43K of Children Act Cap 59 court may revoke a guardianship order where it is
satisfied that the guardianship order was obtained by fraud or misrepresentation; the guardian has
not complied with the conditions issued by the court in respect of the child or the guardianship;
the guardian has neglected the parental responsibility over a child.
Upon revocation of the guardianship order the court under Section 43K (3) of Children Act Cap
59 after considering submissions by the Minister of Gender, Labor and Social Development, place
the child under alternative care. A person aggrieved by a decision of the High Court under the
Children Act may under Section 43L of Children Act Cap 59 appeal to the Court of Appeal.
59
Learning Outcome 3: Draw a petition for an Adoption Order and a petition for a
Guardianship Order.
a) (Petitions in the Format of Form A and B in the Schedule to the Children (Adoption
of Children) Rules already drafted above See Page 41)
60
b) Petition for Guardianship Order
Form 1 (Section 43B)
The Republic of Uganda
The Children Act Cap. 59
Petition for guardianship in the High Court of Uganda
In the matter of the Children Act and in the matter of _______________ (name of Child)
of ___________________________________ village of
_________________________________ Sub county.
The petition of ___________________________________ (petitioner) of
____________________________________________ (address in Uganda and address in
foreign country), (and of the same address) states as follows—
The petitioner(s) is (are) desirous of obtaining legal guardianship of the
child________________________ under the provisions of the Children Act.
The petitioner ___________________ of _____________________ (L.C.I zone)
______________________ (town) ________________________ is a citizen of
_____________________and stays in Uganda at the following address(es)
Address L.C.I
____________________________________________________________
____________________________________________________________
____________________________________________________________
The co-petitioner ___________________ of __________________ ____________ and
has address
____________________________________________________________
____________________________________________________________
____________________________________________________________
The petitioner ___________________ is unmarried (was married) to the co-petitioner
______________________, (at ________________ on the ______ (day) __________
(month) __________(year) (which marriage is supported by evidence annexed).
61
The petitioner ______________________________ is by occupation ________________
and the co-petitioner ______________________ is by occupation a
_______________________.
The petitioner __________________________________ is ____ years of age (date of
birth ______ (day) _________ (month) _______ (year), these dates supported by
evidence of birth annexed)
The petitioner _____________ is related to the child ______________ follows
______________ (and the co-petitioner _______________ is related to the child
_______________ (as follows) (or, the petitioner (s) _______________ and
____________ is not (are not, nor is either of them) related to the child.
The petitioner __________________________________ annexes a certificate marked
______________________ that he/she does not have a criminal record
___________________________ and affirms that he/she does not have a criminal record
in Uganda or any other country.
The co-petitioner _________________________________________ annexes a
certificate marked ________________________ that he/she does not have a criminal
record ___________________ in Ugandan or any other Country.
The petitioner _______________ attaches a recommendation concerning his/her
suitability to adopt a child from ____________________ (recommender) of
_______________________________ the probation and welfare office/other authority
(specify) in ___________________________. Country of origin of the petitioner.
The co-petitioner _____________________________ attaches a recommendation
concerning his/her suitability to adopt a child from ____________________
(recommender) of _______________________________ the probation and welfare
Office/other authority (specify) in _________________ Country of origin of co-
petitioner _________________.
The petitioner(s) has (have) resident with him/her (them) the following children, namely,
_________________ (son), aged ____ years, _________________ (daughter), aged
________ years, and (others)
____________________________________________________________
____________________________________________________________
62
The child ______________________________ is—
a) Of the _________________ sex:
b) Unmarried;
c) A child of ___________________ (father) of __________________ Village
_________________ sub country ___________________ District and of
_____________________ (mother) of ____________ Village ________________ sub
county ________________ District;
d) A citizen of _____________________________________________;
e) _______ years of age, having been born at __________________ the ________ (day)
________________ (Month) _________ (year);
f) Resident at _______________ village _______________ Sub county
_____________________ District;
g) now in the actual custody of ____________________ of _________________ village or
(L.C.V) _______________ Sub county ____________ Town or
_____________________District;
h) under the guardianship of _______________ of _________________ Village of (L.C.V)
________ Sub County or Town _______________ District; (i) entitled to the following
property_______________________________________________________
i) the following persons are liable to contribute to the support of the child-
(a) ___________ of __________ village___________ Sub county __________________
District;
(b) ___________of ____________ Village________________ Sub county
______________________ District;
(c) other______________________________________________
The petitioner(s) __________________ and _____________________ annexes (annex) the
following consent(s) marked No. _______________, required under the Children Act
Name of person Relationship with Date of consent consenting child.
_________________________ ___________________________
_________________________ ___________________________
_________________________ ___________________________
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The child has not been the subject of a guardianship order or of an application or petition for a
guardianship order (except that) (State order and application or petition, if any).
The petitioner(s) has not (have not nor has either of them) received or agreed to receive and no
person has made or given or agreed to make or give to the petitioner(s) (or either of them) any
payment or reward in consideration of the guardianship of the child.
The petitioner(s) undertake(s) that—
(a) He/she/they shall care for (name of child)
_____________________________________________________ as though he/she/they
were my/our own child.
(b) He/ She/they shall bring him/her up in accordance with the
____________________________ religion.
(c) He/she/they shall look after his/her health and allow him/her to be medically
examined as required by the district probation and social welfare office.
(d) He/she/they shall allow an officer of the district probation and social welfare office or
representative of the ministry to visit my/our home and to see the child at any time.
(e) He/she/they shall inform the district probation and social welfare office immediately
if the child is ill, or is missing, or is involved in an accident, or is in any kind of trouble.
(f) He/she/they shall inform the district and social welfare office immediately if he/she
plans to change residence and address.
(g) He/she/they understand(s) that an officer of the district probation and social welfare
has the right to remove the child from my/our home in certain circumstances.
The petitioner(s) affirms (affirm) that a guardianship order made by this honorable court
will be respected and recognized by ______________ the country of origin of petitioner
________________________ (and____________ the country of origin of petitioner
____________), and produces (Produce) a sworn annexed marked
_____________________ to that effect.
It is proposed that the costs of the petition shall be paid by the petitioner(s)
__________________________ and ______________________________
The petitioner(s) prays (pray)
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(a) That an order for guardianship of the child. ____________________________, by the
petitioner(s) be made under the Children Act with all necessary directions;
(b) That the cost of this petition be provided for as above-mentioned or otherwise as the
court may direct; and
(c) That such further or other order be made as the nature of the case may require.
Signed______________________________________, Petitioner
Witnessed __________________________________ (name) ________________
(occupation), of ________________ (address)
Signed _______________________________________, Petitioner

Witnessed __________________________________ (name) ____________________
(occupation), of ____________________ (address)
65
Learning Outcome 4: Prosecute a petition for adoption and or Guardianship before the
appropriate court of law
This is an application for Adoption by Paulo Omeke and Audrey Omeke pursuant to Section
46 of the Children Act Cap.59
The parties seek for orders of adoption of an infant (Athena Morongo) whom they have been
fostering since April, 2021 following the collapse of the foster home that was caring for her
collapsed.
The applicants are present in court in person.
Your worship, Athena Morongo, was born on 23th August, 2017 to Nikola who dies in
December 2020 and Mikayla Mucosa. Murungi's father left for Afghanistan in 2017 and his
whereabouts are unknown. Since her mother passed on and she was left in the hands of
neighbors who took her to the local Probation and Social Welfare personnel who later put the
child in a care home which collapsed in the early 2021 due to the effect of the recent
lockdowns upon its donors.
Your Honour it is a principle of law that in all matters of children, the paramount
consideration is the welfare principle. Section 3 (1) of the Children Act, Cap. 59 as
amended, 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 any
question in respect to the upbringing of a child, the administration of a child’s property, or
the application of any income arising from that administration.
Section 3 (3) of the Children Act further states that in determining any question under
subsection (1), court or any other person shall have regard to; the ascertainable wishes and
feelings of the child concerned, with due regard to his or her age and understandings the
likely effect of the change in the child’s circumstances, the child’s sex, age, background and
any other circumstances relevant in the matter and any harm that the child has suffered or is
at the risk of suffering where relevant, the capacity of the child’s parents, guardian or any
other person involved in the care of child, and in meeting the needs of the child.
Therefore in consideration of the issues before the court, the welfare principle should be
upheld so as to promote the best interests of the child.
The issues for this court’s determination are as follows: -
66
1. Whether this court is vested with the mandate to entertain this application?
2. Whether the Petitioners qualify to adopt the minor?
3. Whether the application is the best interest of the minor?
ISSUE 1: Whether the court is vested with the jurisdiction to entertain this application?
Section 44 (1) (b) of the Children Act cap. 59 as Amended provides that an application for
an adoption order may be made to the High Court where the child or the applicant is not a
citizen of Uganda and the court may subject to the Act grant the Application. Following a
circular issued by the Principal Judge (Administrative Circular No. 2 of 2020),
jurisdiction of inter-country adoption matters was granted to the Family division of the High
Court.
In the instant case, the child is a Ugandan citizen, but the petitioners as a couple are of
different nationalities where one is a Ugandan whereas the other is a citizen of United
Kingdom. This court is therefore vested with the jurisdiction to entertain this petition being
an inter country adoption.
ISSUE 2: Whether the Petitioners qualify to be adoptive parents of the minor?
Section 46 (1) of the Children Act as Amended provides the conditions that should be
fulfilled before a non-citizen can adopt a Ugandan child. These include:
 That the person has lived in Uganda for at least one year.
 Fostered the child for a period not less than 12 months under the supervision of a
Probation and Social welfare officer.
The applicants in paragraph…. of the affidavit in support aver that they have fostered
the child for 9 months so far. This requirement has been waived in Re Victoria
Babirye Namutosi, Adoption Cause No.31 of 2004, where the applicants had neither
lived in Uganda nor fostered the child for 12 months as required under Section 46 of
the Children Act and there was no possibility that the child’s parents would be in a
better position in future in order to take care of the basic needs of the child. Court
held that where it is in the interest of the child that he or she be adopted, then the one
year statutory requirement will not be strictly applied and will be waived.
67
 Does not have a criminal record. The applicants aver in paragraph…. of the affidavit
that they have attained reports from Interpol that indicate their good conduct. Copies
of these reports are annexed to the affidavit.
 Has a recommendation concerning his or her suitability to adopt a child from his or
her country’s probation and welfare office or other competent authority.
 Has satisfied the court that his or her country of origin will respect and recognize the
adoption order. The applicants aver in paragraph…. of the affidavit that they have
attained reports from the foreign country (in this case United Kingdom). A copy of
this recommendation is attached to the affidavit.
Section 46 (2) of the Children Act as amended also requires that Probation and
Social Welfare Officer furnishes a report so as to assist the court in considering the
report.
The report from the Probation and Social Welfare Officer reveals that the child has
been attending Kampala International School and she is happy. The couple is
gainfully employed as they work with the Future Concern Inc. and is still fostering
the child and she is studying at Kampala International School. This explains that they
can ably meet the needs of the child, and that they do not have any criminal record in
Uganda.
The applicants have thus demonstrated their capacity to provide for the child before being
considered as a suitable adoptive parent by this court.
ISSUE 3: Whether the application is in the best interest of the child:
Section 3 (1) of the Children Act, Cap. 59 as amended, 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 any question in respect to the upbringing of a child, the
administration of a child’s property, or the application of any income arising from that
administration.
Section 3 (3) of the Children Act further states that in determining any question under
subsection (1), court or any other person shall have regard to;
68
II. the ascertainable wishes and feelings of the child concerned, with due regard to his or
her age and understandings
III. the likely effect of the change in the child’s circumstances,
IV. the child’s sex, age, background and any other circumstances relevant in the matter
and
V. any harm that the child has suffered or is at the risk of suffering
VI. where relevant, the capacity of the child’s parents, guardian or any other person
involved in the care of child, and in meeting the needs of the child.
In Re Ayla Mayanja (An Infant) Misc. Application No. 20 of 2003 court held that the
welfare principle is a paramount principle in the consideration of all matters of children
which court ought to uphold in making its decisions pertaining to children.
In this circumstance, the child does not have anyone to provide her with basic needs since her
mother, passed on and her father’s whereabouts are unknown; the child was left in the hand
of neighbors who finally placed her in the local organization called Community Child which
later collapsed, and since then it has been the petitioners providing for the child. This should
satisfy court that the application is the best interest of the child.
The report of Wakiso Probation and Social Welfare Officer indicates that the petitioners have
been fostering the child and educating her and staying with her in Ntinda Kampala District
where the petitioners have their residential home and that he had inspected the home on
various occasion and proved that it was a better place for the child to live in. Also, the
testimony of the L.C.I Official has been attached hereto.
Therefore, it is our prayer that the application be granted to further ensure the welfare of the
child. All these indicate that the petitioners are suitable candidates for adoption and thus the
application is in his best interests.
69
Learning Outcome 5 Workshop 1 & Learning Outcome 5 Workshop 2: Recognize and deal
with ethical matters that may arise in the course of executing instructions of this nature.
The ethical conduct of Advocates in Uganda is generally governed by the Advocates Act, Cap.
227 and the Advocates (Professional Conduct) Regulations S.I 267-2
1. Duty to perform their services diligently and competently
The advice given to clients should always be in their best interest because no advocate should
knowingly and recklessly advice a client in ways a reasonable advocate would not as it would
not be in the best interest of the client and an abuse of court process as stipulated in Regulation
12 of the Advocates’ (Professional Conduct) Regulations.
Competent, prompt and diligent legal advice is crucial as an ethical consideration as each
advocate is expected to be well equipped with all relevant legal requirements to advise each
client on matrimonial requirements accordingly.
2. Duty to conduct due diligence
The lawyer owes it to the client to do due diligence in finding out all relevant information
concerning the case in order to ensure that justice is accorded to the client. It should also be
noted that the outcome of each case will affect the life of the child and the people legally
responsible for them. Thus, if the lawyer does not perform diligently, then it may jeopardize the
child’s welfare.
3. Duty of confidentiality
Regulation 7 of the Advocates (Professional Conduct) Regulations specifically protects

information of matrimonial matters of clients from disclosure by their advocates except where
this becomes necessary in the conduct of the affairs of that client, or otherwise required by law.
Case law has further established that this duty of non-disclosure enshrined in Regulation 7 is
fiduciary in nature and continues after the conclusion of the relevant legal matter and the
termination of the advocate-client relationship.
4. Duty to the child
70
Lawyers pledge to obey the law on admission to practice. Every lawyer becomes an officer of
the Court which, in turn, imposes certain duties which are fundamental to the rule of law. The
first of those duties is to the Court. Clients are often unable to understand that that duty applies
ahead of the lawyer’s duty to the client.
In a case of the lawyer’s duty to the Court being in conflict with his or her duty to the client, the
duty to the Court takes priority. In Clarkson v Clarkson (1972) FLR 112, at 114, in reference to
family law proceedings, Selby J held: The interests of the parties take second place. Regarding
the interests of the child is the determining factor.
Recognised tactics of advocacy which may be in every way right and proper are not necessarily
of assistance in cases of this nature. … The task of counsel is a difficult one for, while owing a
duty to his client … he must always remain aware that the child’s interests come before those of
his client.
5. Lawful legal fees
Regulation 28 of the Advocates (Professional Regulations) Regulations is to the effect that an

advocate must not charge a fee below the specified fee under the Advocates (remuneration and
taxation of costs) Rules. This is done in order to prevent cancellation of the contract or
agreement for under payment. The Advocate is not supposed to exploit the client as an economic
opportunity and over bill them.
6. Balancing the client’s needs and abiding by the law
The client’s needs ought to be consistent with the law as an advocate cannot perform outside the
confines of the law and where the client’s instructions are in abuse of the law, and advocate
ought to withdraw from representing such clients as provided in Regulation 3(1)(b) of the
Advocates (Professional Conduct) Regulations S.I 267-2 which is to the effect that an advocate
may withdraw from representing a client where the client instructs the advocate to perform
professional misconduct.
7. Duty to not exploit the client
71
Regulation 11 of the Advocates (Professional Conduct) Regulations S.I 267-2) is to the effect
that an advocate shall not exploit the inexperience, illiteracy, lack of understanding or any
personal shortcoming of a client for his/her personal benefit of any other person.
72

Firm X Family Law Practice Week Two Children Act Learning Outcomes

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FAMILY LAW PRACTICE LEARNING OUTCOMES (WEEK TWO)

1. Mpaata Jerome Owagage

Subtasks of the Learning Outcome

- Application of Children’s Rights

- Application of Child Welfare Orders

1. Welfare Principle/ Best Interests of the Child

The welfare principle qualifies as a right, principle and rule of procedure.

Some key tenets of the welfare principle

I. Children are better placed with their natural parents

II. The father’s natural right of custody

III. The likely effect of any change in the child’s circumstances

IV. Child of tender years

V. Any harm that the child has suffered or is at risk of suffering

VI. The capacity of the parent or guardian

VIII. Moral turpitude of the parent/guardian

1. Application for a Maintenance Order and Any Other Orders

THE REPUBLIC OF UGANDA

THE REPUBLIC OF UGANDA

1. That I am ……………………………… (relationship to the child)

DATED at [……..] this …………………… Day of ………………………. 201……

THE REPUBLIC OF UGANDA

DATED at Kampala this ……………. Day of …………… 20…………

THE REPUBLIC OF UGANDA

Sworn at Lira this …………. day of ………… 2022

Drawn and filed by:

THE REPUBLIC OF UGANDA

Such factors include;

Section 73A – Provides for an Interim custody order

Who makes the order?

- A probation and social welfare officer,

-Apply to the Family and Children’s court

-Pending the determination of custody of the child by the court

Rule 19 Children (Family and Children Court) Rules –

Rule 19(1) - The application shall be supported by affidavit of the applicant

Requirements for the grant of the Order

Who may make the application?

Section 67 of the Children Act Cap 59 [as amended] –

-The mother of a child;

-The father of a child;

-The guardian of a child;

-The child himself or herself through a next of friend

When to make the application;

Section 68 of the Children Act

Considerations to extend time

Section 68(3) Children Act as amended

-The welfare of the child;

Rule 20 - Children (Family and Children Court) Rules –

-Complain on Oath – Under Form 2 in the schedule to the rules

Rule 22 - Children (Family and Children Court) Rules –

Section 69(2), 67(d) Children Act as amended

Rule 21 - Children (Family and Children Court) Rules –

Summons in Chambers - Under Form 3 in the schedule to the rules

Section 69 Children Act as amended

According to the case of Ndyabahika v Adyeri (Miscellaneous Application 69 of 2019),

Section 69 Children Act as amended

The burden to prove parentage lies on the person alleging it.

Section 70 Children Act as amended

Section 70 Children Act as amended - Effect of declaration of parentage

Who may make the application?

Section 76 (1) of the Children Act Cap 59 [as amended] –

-Any person who has custody of a child

-The mother of the child;

-The father of the child;

Witnessed ______________________________ (name)