Adoption

Question 1

How many types of Adoption are there? What are they?

Answer 1

2 types

Customary Law Adoption and Adoption under the Children’s Act (Act 560)

Question 2

What case states the requirement for adoption under customary law?

Answer 2

Tanor and another v Akosua Koko

Question 3

What are the requirements for Customary Law adoption according to Tanor v Akosua Koko?

Answer 3

CCI(CPEW)

1. Consent - from the parents or persons to be adopted to the person seeking to adopt
2. Consent is either express or implied from circumstances at the time the adoption took place
3. Intent to adopt must be clearly and publicly expressed in the presence of witnesses

These requirements were reiterated in Agbeko v Kudordzie

Question 4

What are the facts of Agbeko v Kumordzie?

Answer 4

• Esther Kumodzie was adopted child
• Mercy Agbeko was childless and approached sister and husband to adopt
• Adoption ceremony done in public with several witnesses including the sister and husband
• Esther held herself out as daughter performing many duties
• At funeral of Mercy Agbeko she was the one who did all the daughter duties
• Court held that Esther was adopted (Consent from parents of child to adopter person had been shown, consent was express and implied, and there was a clear and public intent shown with witnesses, satisfying the Tanor requirements)
• Court held for Kumodzie

Question 5

What is adoption?

Answer 5

Adoption is the transfer of the obligation, rights, duties of the biological parents to the adopted parents. This is true for both customary law adoption and adoption under the Children’s Act 1998(Act 560) Children’s (Amendment) Act 2016 and Courts Act 1993 (Act 459).

Question 6

Can unborn children be adopted?

Answer 6

Yes, unborn children can be adopted but only under customary law and not under legislation.

In Quashie and Others v Boahema and Another the court of appeal held that it is not only living children who may be adopted and that unborn children may also be adopted.

Question 7

Who can be adopted?

Answer 7

Only a minor i.e. A child under the age of 18 can be adopted. Must be under 18.

Question 8

Who may adopt?

Answer 8

A husband and wife can jointly adopt. S. 66(1)
A husband or wife can individually adopt S. 66(2)
A father of a child with a spouse or mother of the child with a spouse S. 66(2)
A single person who is at least 25 years old and is at least 21 years older than the child
Relative who is at least 21 years old
And male applicant may be granted adoption order in respect of male child.

Question 9

Conditions of adoption

Duration

Answer 9

The child must be in the care of the applicant for at least three consecutive months prior to the adoption to help the parties acclimatize and bond with each other

Question 10

Conditions of adoption

Residency

Answer 10

Adopter and adoptee must be residents in Ghana, otherwise need to provide notice to the social welfare department three months before the order.

Question 11

Conditions of adoption

Consent

Answer 11

Spousal consent - If application is by married individual and the application is not a joint application by the couple, consent must be obtained from the other spouse.

-Parental Consent
parent or guardian of the child must provide written consent to the adoption
The parent or guardian must understand the effect of the adoption - that it extinguishes all parental rights.
Consent must be freely given, no coercion or enticement
Consent attached to application

Question 12

When can court dispense with parental consent

Answer 12

• Parents cannot be found after diligent search
• Neglect and/or ill-treatment of the child
• Parents consistently and without just cause fail to maintain care of the child. Failure must be serious and best interest of the child to be adopted
• Parent unreasonably withholds or withdraws consent because of the identity of the adoptive parents
• Parents are incapable of giving consent e.g. mentally unsound
• If child is 14 and above, court may seek consent of the child

Question 13

What is the effect of an adoption order?

Answer 13

Adoption order is final and extinguishes rights, obligations and duties from biological parents to become fully vested in adoptive parents

Question 14

Interim Order

Answer 14

• Court may give custody of child to prospective adopter on probation basis aka interim order
• Purpose to ensure that the child is adopted by right person and safety, maintenance and upbringing not compromised
• Probation period may not exceed 2 years
• Child will be under supervision of the social welfare department and cannot be taken out of the country without parents providing notice and seeking permission from the department
• Ct may also give interim order where adoptive couple makes a joint application but one of the them is not a Ghanaian citizen

Question 15

When will an interim Order be made?

Answer 15

Interim orders are mandatory in applications where the applicant is not a citizen of Ghana or where one of the applicants in a joint application is a foreign citizen.

A child in respect of whom an interim order has been made shall not be taken out of the jurisdiction except with the consent of the court.

If after two years the court is satisfied that it will be in the best interest of the child to be adopted, a final adoption order will be made.

Question 16

What happened when adoptive parent dies intestate

Answer 16

Once the adoption is final, the rights of the biological parents are extinguished
76 (1) - can inherit as a “natural born child”
Double inheritance is prohibited. Can’t inherit from adoptive and biological parents. Biological parents however, can devise property to adoptee but not entitled to benefit from biological parents a their child because rights extinguished
If an adoptive parent dies without making provision for the adoptee under a will (that is, the will was made before the child was adopted), the adoptee may apply under s.13 of the Wills Act 1971 (Act 360) for a variation of the terms of the will or for reasonable provision (provided the adoptee is under 18).