THE LAWS AND SOCIAL GOVERNANCE OF ADOPTION IN GHANA by the Legal Research Family

According to the Black Law’s Dictionary 9th Edition, a child is a person under the age of majority. For contractual purposes the age of majority under the common law dispensation has been modified by the United Kingdom (UK) to 18 years of age since 1969, but it has not been modified by Ghana’s Parliament and stands at twenty-one (21). Hence, a child per this definition within Ghana is considered to be a person under the age of 21. Article 28 (5) of the 1992 Constitution and section 1 of the Children’s Act, 1998 (Act 560), defines a ‘child’ for the purposes of that article and section respectively as “a person below the age of eighteen years”. “Child” per Clause 116 of the Trusts and Non-Governmental Organisations Bill, 2007 means a person under the age of eighteen years. Section 24 of the Citizenship Act, 2000 (Act 591) states that a child within the Act means ‘a person who has not attained the age of eighteen years.’  From the above we can say without concluding that up until the age of majority, you are considered a minor—a child. This age varies​ from state to state, but under Ghanaian dispensation, generally, the age of majority is designated sometime between age 18 and 21. Hence, to conclude emphatically on who a child is would depend on the jurisdiction and the general position of the applicable law under which the context of a child falls within.

However, the question of who a child is becomes especially relevant when the issue of adoption and its subsequent legal consequences arise. In this context, a child for the purposes of adoption takes on a whole different meaning from just the consideration of an age bracket. According to the Black Law’s Dictionary 9th Edition, adoption, universally, is the creation of a parent-child relationship between persons usually unrelated by blood. The Wills Act 1971 (Act 360) puts it succinctly in section 18 when it says “child includes a person adopted under any enactment for the time being in force relating to adoption, any person recognized by the person in question to be his child or to whom he stands in loco parentis and in the case of a Ghanaian includes also any person recognized by customary law to be the child of such a person”. This brings to fore that there are two types of adoption – statutory and customary – per the Ghanaian jurisdiction. The interrelatedness and distinctiveness of these as it relates to the process of adoption and its attendant issues vis a vis the law is the focus of this paper.

According to Cheshire and North, adoption is the process by which a child is brought permanently into the family of the adopter. The effect of an adoption is to take away from the child whatever legal benefits nature conferred upon him and to transfer all obligations towards him to the adoptive parents, who by nature, have no obligation towards at all. There is a complete and fundamental change in the status of the child. He becomes a child in law of his adoptive parents to the exclusion of his natural parents. The process of adoption depending on whether it is done under statute or custom has certain legal consequences for the child and as such adoption as manifested in all international and regional legal instruments on the rights of the child has been fully adopted and integrated in the Ghanaian legal framework evidenced by entrenched provisions in the 1992 Constitution and statutory provisions.

Furthermore, these legal ramifications for the child particularly come to fore in statutory adoption. This is the only legal means of adopting a foreign child or person who does not have the nationality of the adopter, even though Ghanaian children can also be adopted through statutory adoption. This is seen in section 80(1) of the Children’s Act, 1998 (Act 560), which provides that “A child need not be a citizen of Ghana to be adopted”. This proviso implies that adoption through the statutory process is not restricted to foreigners but also Ghanaians. Hence, Sections 69 and 70 of Act 560 particularly set out the procedure and conditions under which the court will allow a child, be it a foreigner or a citizen of Ghana, to be adopted. Indeed, section 74 of the Children’s Act is particularly instructive on this conundrum. For in effect what this section seeks to do is to clarify the status of a child who has acquired citizenship by adoption and is subsequently being adopted again. Here, the child’s status does not change for the purpose of the next adoption if he or she were originally a foreigner. The child’s status as a citizen holds as a citizen of Ghana owing to the fact that citizenship conferred once cannot be lost by the mere fact that the adopter has chosen to end the parent-child relationship. The rights and obligations that accrue to the child continues to exist under law without exception. Thus, a child need not only be a foreigner for adoption under statute to be possible. He or she can be a Ghanaian. Adoption under statutory law may be referred to as an official court order of adoption. Compared to adoption under customary law, adoption under statutory law lays down more specific and orderly requirements, including the necessary ways to apply for adoption, who is deemed fit to adopt, consent for adoption as well as the conditions for adoption order amongst other requirements. The authoritative law regarding this type of adoption, as already mentioned, is found in the Children’s Act. Any valid statutory adoption in Ghana is done in accordance with the requirements and procedure laid down in subsections 65-86 of the Act. Statutory adoption of a foreign child has the effect of conferring citizenship on that child per section 80(2) of the Act, and as such the municipal courts have to issue an order that confers the status of parenthood on the adoptive parents. This position is also found in the Citizenship Act, 2000. A citizen is a legally recognised member of a nation or state who owes allegiance to the government and in return receives the government’s protection. There is no unanimity among states as to who a citizen of a state is, hence this lies within the exclusive preserve of the sovereign state to decide what constitutes citizenship in that state. Therefore, to know who a citizen of Ghana is, within the context of adoption, there should be recourse to our domestic law. The combined effect of Section 9 and 24 of the Citizenship Act, 2000 is that a child within the meaning of the Act becomes a citizen of Ghana once the process of adoption is complied with. Hence, certain rights and duties are conferred on the foreign child as a citizen of Ghana upon adoption.

See also CHILDREN’S (AMENDMENT) ACT, 2016 (ACT 937) for amendments to the Children’s Act, 1998 regarding detailed adoption process under statutory specifically sections 62, 79- 84 and 86C- 86O

The other type of adoption is under customary law. This type only covers the adoption of a person who is already a national of Ghana. Customary adoption has been a part of the traditional society and is still practiced in all Ghanaian communities today. It is recognised and valid by law owing to Article 11 (1) (e), (2), (3) which makes customary law a part of the common law as expressed in the sources of the law of Ghana. Tanor v. Akosua Koko [1974] lays down the essential requirements for the adoption of an infant into a family in accordance with customary law. These include: the consent of the child’s parents whether objectively ascertained or inferred from conduct, the expression of the adopter’s intention to adopt the infant, the adoption must be done before witnesses and other things such as the slaughtering of a sheep, consumption of liquor, the pouring of libation and the placing of the adopted child on a ‘family ladder’. The first three requirements are regarded by law as essential for an adoption to be considered as having conformed with customary law.

In addition, the “best interests of the child” is universally acknowledged as the paramount standard for the determination of all issues affecting children and is incorporated in the Children’s Act. Christine Dowuona-Hammond in her article, “Upholding The Best Interest Of The Ghanaian Child In Custody Cases: The Customary Law And The Courts” observes that customary law is essentially communistic and gives greater prominence to group interests and rights than individual “rights” in the sense employed by the universally recognised standard of the best interest of the child. Adoption under customary law happens within the context of the extended family and safeguarded through the child’s association with a membership of the family and also gives custody of one man’s biological children to another and denies the natural father any right to custody of his children because of the circumstances in which the child was conceived. The rules of Akan and Frafra Customary law in this regard and how the courts apply the customary law principles with regards to custody issues in her article are of particular interest.

Also, it is well established at Customary Law that the natural parents of a child jointly have an unqualified right to the custody of their children against every other person. In Adjuah Chiba v. Agoowah of Moree, the court emphasized the fundamental right of a biological parent to the custody of his or her child as one which prevails over any right or interest of a stranger or non-family member. In Asem v. Asem the Court of Appeal asserted the clear duty of the court to protect the best interests of the child irrespective of any parent’s wishes or entitlement, noting that the court is obliged by statute in deciding a question of custody to have regard to the welfare of the infant as its first and paramount consideration. However, in Awortei v Nwansu, the father, a Nigerian, claimed for custody of the children and was denied on appeal on the ground that according to Akan customary law, the father of a child born outside marriage has no custody rights over the child. Such a child belongs to its mother’s family. It was held, relying on Danquah’s Akan Laws and Customs, that by the Akan custom it is only a child born within marriage that is deemed to belong to his father in respect whereof he is entitled to custody. Also, under Frafra customary law, a child born by an unmarried woman is deemed to be the legal child of the maternal grandfather and his family, who are entitled to custody of the child. The putative father has no right whatsoever to the custody of a child born to him outside marriage as was held in Ibrahim v Aamalibini. The courts upon a review of the case law on customary adoption seems to have missed the opportunity to champion the cause of the Ghanaian child when that interest occasionally contradicts customary rules and traditions. Although the courts have the blessing of the constitution to enforce such an approach i.e. the best interest of the child as expressed in international convention such as the African Charter on the Rights and Welfare of the child (ACRWC) and manifested in the Children’s Act, they have failed to do so. Article 3 of the ACRWC states that ‘customs, traditions, cultural or religious practices incompatible with the right, duties and obligations expressed in the Charter must be discouraged to the extent of this incompatibility.’ Ultimately, the interest of the child in custody cases can only be effectively upheld if the courts play the vital role of reconciling the interests and values of society with the interests of the child by the adaptation and innovative application of custom.

Again, the two types of adoption converge on the process of adoption to include consent, transfer of parental responsibilities, capacity and witnessing but diverge on the procedure of capacity of the adoptive parents and succession rights of the adopted child. On the issue of consent, whether the process is statutory or customary, consent is required of the adoptive child’s parent or guardian to allow the child to be adopted. Sections 68,69 and 74 of the Children’s Act shows how such consent must be given under statute whereas that of customary law is simple consent of the parents or guardian of the child. On the issue of parental responsibilities, the natural parents transfer such to the adoptive parents under customary law and this is also reflected in section 75 of Act 560. This allows the adopted child to inherit the properties of the adoptive parents. On the issue of witnessing, each adoption requires witnesses, but whereas the court serves as witness through the issuing of the adoption order under statutory adoption, relatives or parties involved in the adoption serve as witnesses to customary adoption. On the issue of capacity sections 66, 67, and 73 of the Act require that the adoptive parents should be a couple who are citizens of Ghana to be eligible to adopt at statute whereas custom also does not lay down a specific requirement for the adoptive parent to be members of the community. The emphasis at custom relies on consent of the natural parent rather than as to the capacity of the adoptive parent.

The issues relating to differences under the two types of adoption usually arises as to the rights that accrues to the adopted child particularly as regards custody issues and the law of succession. Under statutory adoption this problem is not particularly an issue since statutes such as Intestate Succession Law, 1985 (PNDCL 111), Matrimonial Causes Act, 1971 (Act 367), Wills Act 1971 (Act 360) and Children’s Act 1998 (Act 560) as amended by the Children’s (Amendment) Act, 2016 (ACT 937) and other statutes are quite clear as to the rights and benefits that accrue to the adoptive child. On the issue of succession at customary law, the case of Atomo v Tekpetey is particularly instructive. The court had to determine inter alia whether the Osudoku custom of denying children the right to inherit their natural father simply because their mother was a wayokwe i.e. a marriage custom by which a woman was given in marriage to a fetish priest to stop the fetish priest from causing the death of members of her family was legal. Under the custom, all children born to their mother during and after the lifetime of the fetish priest were forever considered as the children of the fetish priest and not their natural father. The court held that the custom must move with modern civilization. Thus, in a modern society where a father had a legal and moral duty to maintain and educate his children, it would be too harsh a custom to the established principles of natural justice, equity and good conscience to deny a child the right to be recognised as the child of his natural father and compel the natural father to disown and disinherit the child for what is after all not of the child’s making. Hence, custom as regards succession must conform to principles of natural justice, equity and good conscience for it to be upheld by law.

The final issue that is worth clarifying as regards adoption relates to adoption of persons above the ages of 18. Citizenship is the legal relationship of a person to a state resulting from such sources as birth, adoption, naturalization, marriage amongst others as provided by the municipal law. Section 9 of Citizenship Act, 2000 and section 80 of the Children’s Act, 1998 confers citizenship when a child is not more than 16 years neither of whose parents are citizens of Ghana is adopted by a Ghanaian. Part IV of Act 560 amended states clearly in section 80 that a child may be adopted if that child is less than eighteen years of age amongst other requirements. This paragraph seeks to emphasize the point that a child beyond the age of eighteen years may not be adopted under statutory law. It is believed that if a person attains the age of eighteen, that person becomes an adult and can cater for him or herself. A child beyond the age of eighteen is less vulnerable than a child under eighteen years except for situations where that adult faces some sort of disability either physically or mentally. Furthermore, Section 79 of the Children’s Act requires that the child being adopted shall be subject to the customary law of the adopter. Thus, for any parent-child relationship to be established customarily, the child must meet the requirement set out under custom which would depend on the particular community the adopter hails from and the specific custom that regards the age requirement in such a local community for adoption. This is not to say that without subjecting a child to the customary law of the adopter the child cannot be adopted. For section 79 of the Children’s Act only stipulates this requirement in the situation where the adopter is subject to customary law. This position is further justified when one takes recourse at Section 9 of the Citizenship Act, which is silent or does not place any such restrictions and requirement under custom for the adoption of a child to be held valid. It is justified then that only children less than eighteen years are to be given out for adoption to help enhance their growth and wellbeing before they attain maturity. Any person who wishes to create a parent-child relationship in so far as the child is above the legal requirement cannot do so under citizenship by birth but citizenship by either naturalization under sections 13 and 14 or registration under section 10 of the Citizenship Act since age is not a restriction under these processes.

See also ADOPTION RULES, 2003 [CI. 42] for detailed proceedings regulating adopters and guardians under statutory adoption.

In addition, see the Adoption Regulations, 2018 (L.I. 2360). The regime has slightly changed.

In all, the term adoption is a general term which has two divisions. Children adopted under statute, which includes foreign children who become citizens of Ghana; and children adopted under customary law. It is worthy of notice also that from the above, it is impossible for a person beyond eighteen years to be adopted to attain Ghanaian citizenship, but can become a citizen only by registration and naturalization. Finally, in both statutory adoption and customary adoption, there is some element of custom in relation to the adopter.

 

ARTICLE WRITTEN BY

FOSU-MENSAH APPENTSEN

SONIA LARBIE

JOSEPHINE AWUAH

ABOTCHIE-AGBANU DZIFA

JOJO AFFUM

PRINCESS BEMPA EFUA SAAH

All of the Legal Research Family,

University of Ghana, Legon

SGD

Leader

DKKN