MAKERERE LAW JOURNAL

THE LONG SEARCH FOR FAMILY: AN ANALYSIS OF INTERCOUNTRY ADOPTION UNDER THE CHILDREN (AMENDMENT) (NO. 2) ACT 2016 OF UGANDA

Denise Louise Nakiyaga Babirye*

ABSTRACT

The Children (Amendment) Act of 2016 places intercountry adoption as the last option available to orphaned, abandoned or legally relinquished children after domestic adoption, domestic legal guardianship and institutional care. The rationale for this is the argument that intercountry adoption fuels child trafficking. But in the context of the Ugandan society which is largely averse to domestic adoption and legal guardianship, and in the light of the fact that institutional care is adverse to children’s growth and development, the limitations placed on intercountry adoption are counterintuitive to the paramount consideration of the best interests of the child. While intercountry adoptions may be abused by corrupt elements to enable trafficking, the solution lies in cleaning up the domestic regulation system to sieve these out rather than throw the baby out with the bathwater and eliminate the greater good of legitimate intercountry adoptions altogether.  

INTRODUCTION

Intercountry adoption dates back to the 1960s and has been on the rise since.[1] The United States (US) Department reported that in 2013/2014, Americans adopted 6,441 children from around the world; 201 of them were adopted from Uganda.[2] This statistic has not changed, making it the third biggest source country in Africa compared to Democratic Republic of Congo (DRC) and Ethiopia, two of the biggest source countries for adopted African children.[3]

Although the total numbers of adoptions are not necessarily very high when compared to other African countries like Ethiopia, the problem with adoptions of Ugandan children is that most of them start out as legal guardianships and are finalized outside the country by the adoptive parents.[4] This raises fundamental concerns regarding the procedures being used, the checks and balances therein to safeguard children and the remedies available to children in instances of unsuccessful adoptions.[5]

In addition to the foreign prospective parents evading the restrictions by successfully applying for legal guardianship within days and then completing the adoption process back home,[6] reports have also revealed widespread corruption in the intercountry adoption process with Ugandan parents bribed, tricked or coerced into giving up their children to foreigners, mostly from the US.[7]

International adoptions in Uganda as governed by The Children Act of 1997,[8] prior to the amendment, were to be granted if the prospective adoptive parents stayed in Uganda for at least three years fostering a child under the supervision of the Probation and Social Welfare Officer before filing a case,[9] this was however not enforced as discovered through the Thomson Reuters Foundation investigation.[10] The investigation found that the process and the system of adoption were marred with corruption, negligence and deceit. These discoveries prompted the Ugandan Parliament to enact the new legislation, The Children (Amendment) Act 2016,[11] whose objective, among others, is to enhance protection of a child, to provide for the guardianship of children and to strengthen the conditions for intercountry adoption.[12]

This new Act amends the law on intercountry adoption in Uganda; it is now considered as the “last option available to orphaned, abandoned or legally relinquished children” in need of permanency although the adoptive parents need only to stay for one year prior to the application and the faster route of claiming legal guardianship is only available to Ugandan citizens.[13]

Every child enjoys the right to know and be cared for by his or her parents.[14] Children have a need to be protected, nurtured and loved by permanent and loving parents and protected from the drastic costs of institutionalization.[15] Although thousands of people reckon and as research has shown that institutions are not a safe haven for children, many Ugandan child welfare advocates believe that orphanages are more acceptable than international adoption.[16]

While the Ugandan government through a number of campaigns is encouraging domestic adoptions, they are still low reason being that it is a fairly new concept with many misconceptions and myths,[17] giving room for international adoptions to prosper as a lucrative business for the people involved alongside excessive abuse.

This paper analyzes the incentives of this new law, which are, as argued by the protagonists to be the shutting of escapes exploited by child traffickers. The paper will analyze whether, considering the best interests of the child, the amendments made by the Children (Amendment) Act will rob needy children of the chance at a better life overseas,[18] and thus preventing something good from happening.

THE ADOPTION LAW

Every child is entitled to a name, identity, nationality, a record of his or her birth and the right to know and be cared for by his or her parents.[19] Bhagwati J noted in Lakshmi Kant Pandey vs Union of India,[20] that these rights are only possibly enjoyed if the child is brought up in an atmosphere of love and affection and of moral and material security, which is in a family—the biological family being the most affable environment.[21]

In situations where the biological parents or any other near relatives are not available to look after the child, the next best alternative is to find an adoptive parent for the child so that he or she can grow up under a loving care and attention of the adoptive parents.[22] All effort should be made first to find domestic adoptive parents but if it is not possible, foreign adoptive parents can take up the child.[23] This is better than leaving the child to grow up in an institution where it will have no family life, no love, and no affection of parents which might lead the child to live a “life of destitution, half clad, half-hungry and suffering from malnutrition and illness.”[24]

This holding was later reduced into rights provided under the UN Convention on the Rights of the Child (CRC) which obligates State parties to protect a child who is temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment by ensuring that there is alternative care available for such a child.[25] Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children.[26]

When considering the abovementioned solutions, due regard ought to be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.[27] It should be noted that the use of the words “family environment” broadens the meaning of family to include more than just the biological family. This family environment, however, should not conflict with the child’s best interests.[28] The CRC recognizes that inter-country adoption may be considered as an alternative means of child's care among a range of different options, if the child cannot be cared for in any suitable manner in the child's country of origin.[29] The CRC has been interpreted to favor both foster care and institutionalization in the country of origin over intercountry adoption,[30] and setting a wide meaning for the kind of care that is suitable for the children for with the use of the phrase “in any suitable manner”.[31]

The Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention)[32] post-dates the CRC as it was adopted in 1994 taking into consideration the concerns raised about the CRC. The Hague Convention provides a framework for Convention countries to work together to ensure that adoptions take place in the best interests of children and to prevent the abduction, sale, or trafficking of children in connection with intercountry adoption.[33] It was recognized that intercountry adoption was creating serious and complex human and legal problems and that the absence of existing domestic and international legal instruments indicated the need for a multilateral approach. Under the Hague Convention, intercountry adoption should take place after possibilities for placement of the child within the state of origin have been given due consideration and that an intercountry adoption is in the child’s best interests.[34] This provision allows prioritizing of the best interest of the child over exhausting domestic options, and this is where it diverges from the CRC, which is interpreted by the proponents of intercountry adoption as favoring it more than the CRC.[35]

Uganda is not a signatory to the Hague Convention and this has been taken to be the root cause of the increase in the numbers of adopted children as the protective considerations provided therein are not strictly adhered to and has been approached by actors from receiving countries to ‘compensate’ for the fall in adoption numbers from the countries that signed the Hague Convention.[36] However, this has been refuted by some critics of the Hague Convention who argue that although the Hague Convention “was supposed to help unparented children get nurturing parents and permanent homes, its entire influence has been entirely negative as it has closed the doors of intercountry adoption.[37] The Hague Convention has been interpreted more restrictively with strict adherence to the requirements provided therein which has left out the countries that cannot meet the requirements.[38]

At the Regional level, the African Charter on the Rights and Welfare of the Child (ACRWC) provides for the rights of the children.[39] The ACRWC provides for the right of every child to be part of a family as the basic unit of society, the right to enjoy parental care, protection and the right to reside with his or her parent.[40] Inspired by the CRC, it provides that intercountry adoption should enjoy the same safeguards and procedures as those of the national adoption and should be the last resort after the alternative care options of domestic adoption and foster care have been exhausted.[41]  The ACRWC brings into context the African culture to which the notion of adoption is unfamiliar.

Nationally, the Constitution of Uganda recognizes the rights of children to know and be cared for by their parents or those entitled by law to bring them up.[42] This is further reiterated in the Children Act.[43] The Children Act provides for both domestic and intercountry adoption. Prior to the amendment, for an intercountry adoption to be granted under exceptional circumstances, the prospective adoptive parent ought to have stayed in Uganda and fostered the child for thirty six months under the supervision of the Probation and Social Welfare officer.[44] Substituting the “three years” with “one year” and authorizing the High Court to waive certain requirements in “exceptional circumstances” this section has been amended by the Children (Amendment) Act, 2016.[45] Although the legislation has conversely softened some of the requirements of procuring intercountry adoptions, it has also introduced new provisions in the section of the law that provide that “intercountry adoption shall be considered as the last option available to the orphaned, abandoned or legally relinquished children, along a continuum of comprehensive child welfare services.”[46] The Act further defines what constitutes “continuum of comprehensive child welfare services” to include a “broad range of preventive services and community based family-centered alternative care options which may include; family preservation, kinship care, foster care and institutionalization.”[47] Furthermore, the Amendment restricts applications for legal guardianship to only citizens of Uganda.[48]

This Amendment comes as a response to the current vices and weaknesses in Uganda’s intercountry adoption system which is marred in corruption, deceit and bribery,[49] which has caused some countries to close their borders to children from Uganda, for instance, in June 2012 the Netherlands informed the Ugandan government of their intentions to stop all adoptions from Uganda due to the level of corruption and bad practices involved in the international adoption process.[50] The Parliament hopes that with this new law will help to curb these vices and provide a stronger child protection system with the new authority in place, the National Children Authority; this is yet to be achieved as the law is still fresh. However, what is left unanswered is whether it is in the best interests of the child to have institutionalization, as an option for alternative care, considered before intercountry adoption. Over the past years, there has been an increase in the number of institutions and consequently children in those homes in the country. There are over 50,000 children in this alternative care option.[51] This increase is not commensurate with the low level of domestic adoptions in the country. There are a number of reasons why domestic adoption is alarmingly low- it is a western concept not understood in Uganda, where there has been a long tradition of children being shared across the extended family, likewise the concept of “orphan” was alien. Thus children have been placed in “orphanages” especially those funded by outside charities, to gain a better education. [52]

The effect of institutional care on children and society at large is monumental. Analytical epidemiological study designs show that young children placed in institutional care are at risk of harm in terms of attachment disorder and developmental delays in social, behavioral, cognitive domains, physical growth, neural atrophy, and abnormal brain development.[53] These delays are caused by the lack of a one-on-one relationship with the primary caregiver in these institutions.[54] Therefore as noted by Bhagwati J in the case of Lakshmi v Union of India,[55] if it is not possible to find suitable domestic adoptive parents, it is better to give the child in adoption to foreign adoptive parents than to allow the child to grow up in an orphanage or an institution. It is in the child’s best interest.

THE ROLE OF THE BEST INTERESTS OF THE CHILD IN INTERCOUNTRY ADOPTIONS

In contrast with Article 3 of the CRC, which provides that the best interests of the child shall be the “primary consideration” in all actions concerning children, in matters of intercountry adoption, it is the “paramount consideration”.[56] This paramount consideration has been said to be the cause of the split in both sides.[57] Although international human rights law dealing with children positions best interests within the boundaries of all the other rights affecting them, the way the principle is to be operationalized has remained necessarily undefined.[58] These challenges are magnified when looking at intercountry adoption as its determining factor.[59] There is a thin line between “child saving” and the condemnation of “child trafficking” which has given rise to a heated debate over what makes up the best interests of the child in this matter.[60] The confusion is escalated by some of the testimonies given by the child adoptees, who expose the challenges and experiences they go through as transnational children; many trans-racial adoptees deal with issues of racism, low self esteem and identity crises. [61] While there is a general agreement that the best interests of the child should be the paramount consideration in intercountry adoption, there is no consensus on who decides what is in a child’s best interests or on what basis that decision should be made.[62] The CRC Committee has tried to define what encompasses the “best interests of the child” through a General Comment but it remains vague and confusing.[63]

Cantwell, in answering the question of the role of the best interest principle in intercountry adoption, argues that the way the best interests principle is used today, that is, essentially to ensure the best possible protection of rights, stands in stark contrast to its origins, which was to fill in or compensate for the absence of rights.[64] He contends that “determining best interests needs to be a thorough and well-prescribed process directed, in particular, towards identifying which of two or more rights-based solutions is most likely to enable children to realize their rights, bearing in mind that the other people affected by those solutions also have their own human rights.”[65] To him, the best interest principle should no longer be the benchmark in intercountry adoptions, rather it is one of the several ways to attain the optimal achievement of benchmarks established in the CRC and the Hague Convention.[66]

Cantwell draws an analogy with the best interest determination process proposed by the UN High Commissioner for Refugees to identify durable solutions for unaccompanied and separated refugee children,[67] to come up with a checklist for a best interest assessment and determination process on intercountry adoption that must be taken into account to ensure that national policies on intercountry adoption correspond to children’s best interests. He lists key issues to be covered, the considerations to make and the ultimate outcomes.[68] The key issues are: child’s freely expressed opinions and wishes, situation, attitudes and capacities of the child, the level of stability and security provided, potential to keep or reintegrate the child with the parents, physical and mental health of the child, education opportunities, any special developments, potential adjustments to the new arrangements, continuity with the child’s ethics, religion, cultural or linguistic background and lastly, suitability of the possible care options available.[69] However, as rightly noted by the CRC Committee, the importance of these elements may differ depending on a particular case as will therefore different elements can be used in different ways in different cases and in situations of conflict, the elements will have to be weighed against each other to find a solution that fits well with the best interests of the child.[70]

Similarly, the Uganda’s Children Act provides the necessary factors to consider when defining the welfare principle, which is the guiding principle in making a decision relating to a child.[71] These are; the child’s wishes if they are able to express them, the child’s age, sex and other background information and overall needs the harm suffered or likely to be suffered, the capacity of the parents or guardians to provide for the child, and the likely effects of any changes in the child’s circumstances.[72]

By way of concluding this section, despite its vagueness, the best interest of the child principle is the paramount consideration that has to be held with high regard in matters of intercountry adoption. It is the main dissonance between the “proponents” and the “opponents” of intercountry adoption to determine the conditions under which the best interests of the child support intercountry adoption as a positive solution to the unparented children in institutions or societies.[73] This calls for timely determination, protection and investment in these interests intervention. Uganda should invest in human resource for this task whose main goal would be to strengthen families, ensure domestic adoption and where necessary guarantee that it is in the best interests of the child put up for intercountry adoption as an alternative care option.[74]

FROM STEWART TO SILAS: INTERCOUNTRY ADOPTION IN UGANDA

Uganda’s child protection system has been dubbed fraudulent, exploitative and dishonest. Thomas Reuters Foundation investigation discovered that Ugandan poor families have been bribed, tricked or coerced into giving up their children to U.S. citizens and other foreigners for adoption.[75] Freda Luzinda, who worked at the U.S. Embassy in Kampala, Uganda for two years processing adoption visas, now the Uganda National Director of A Child's Voice, an NGO promoting child rights and welfare, testified that “many birth parents do not understand that adoption is permanent. They believe they may get their children back later. These misconceptions are part of the problem, but not the only problem.”[76]

This was ideally visualized through the story of Stewart Bukenya, now Silas Hodge. In June 2009, Adam and Jill Hodge took Stewart Bukenya, born to Hasifa Nakiwala and Festos Matovu, to the US at the age of five, after they obtained legal guardianship by a decision from the Family Division of the High Court.[77] The legal guardianship was premised on the falsification of the death certificate that evidenced the death of the boy’s father and that Hasifa was planning on leaving her children to go and live with another man.[78] On reaching their home in Forest County, Mississippi US, the Hodge parents successfully applied for Stewart’s adoption and subsequently changed his name to Silas Hodge.[79] The truth was unveiled in 2011 when Hasifa and Matovu claimed that they did not understand the papers they signed as they were not translated into their language; they claimed that they were promised that their son would return every two years “for a holiday”, and there would be frequent communication, but that they had only received few photographs through the lawyer that finalized the process, Isaac Ekirapa.[80] Hasifa Nakiwala and Festos Matovu are still paying the price of the decision they made to give up their child for what they thought was merely legal guardianship and not a surrender of their parental rights.[81] Unfortunately, the court is now functus officio so the parents have to wait until Stewart, now Silas, becomes an adult and can decide whether or not he would like to return to Uganda or stay with his adoptive family.[82]

Although intercountry adoptions have saved a vast number of children from growing up with no loving and caring family, Stewart’s story exposed the heartaches suffered by the unfortunate and despairing families who are further disadvantaged by the underclass child protection system in Uganda, to the advantage of the conning individuals who utilize the opportunity to make it a lucrative business. The other revelation is the fact that legal guardianships obtained in Uganda are sometimes used as a shortcut to adoptions, that is, they are turned into adoptions once the foreign families return to their homes.[83] This is the core motivation raised by the Parliament of Uganda for restricting legal guardianship to Ugandan citizens only in the amendment citing that the children are hard to trace because they are usually taken out of the country.[84] The question to ask therefore is whether this measure is in the best interests of the child, or whether this is the best measure that will reduce the child trafficking cases in Uganda?

THE STRUGGLE TO FIND ‘FAMILY’ UNDER THE CHILDREN (AMENDMENT) ACT 2016 

The Children (Amendment) Act 2016, which was tabled in Parliament in 2004, was finally passed by Parliament after a long wait.[85] This is apparently the new protector of the children who have been trafficked, laundered and had their rights violated under the guise of intercountry adoption with its objectives including, to strengthen the conditions for intercountry adoption and to strengthen the provisions for guardianship of children.[86] The legislation however softens some requirements for applying for intercountry adoption; it shortens the time required for residence in Uganda and for fostering the child from three years to one year,[87] and grants the Court the power to waive any of the requirements for the application and grant of intercountry adoption.[88] The major changes in the law are that it provides that intercountry adoption will be the last option considered after all other comprehensive child welfare services and secondly, provides for guardianship in Uganda, restricting it to only Ugandan citizens as discussed earlier. The amendment further introduces the rescission of adoption orders in exceptional circumstances where it is in the best interests of the child, cases of fraud or misrepresentation.[89]

The discussion as to whether or not intercountry should be the last resort is an enduring one. Elizabeth Bartholet, a devoted advocate for intercountry adoption who is actually mothering two sons from Peru,[90] and David Smolin, who is keen on exposing the clashing perspectives about intercountry adoptions, debated the issues over intercountry adoptions.[91]

Bartholet refers to the legal structure surrounding adoption as designed to serve the best interests of the child as a myth, which was shattered during her experience of becoming an adoptive parent.[92] She believes that children’s most basic need is “…the need to be nurtured from infancy on by permanent and loving parents. Children have related needs to be protected against the conditions that characterize life in orphanages, on the streets and in most foster care.”[93] Bartholet recognizes that the ideal situation is when the parents raise their own children but this is impossible and the number of unparented children is growing and this will be so for the days to come.[94] This calls us to all do our part to get as many children as possible out of the orphanages into nurturing homes, which can be done by firstly supporting family reunification and if it is not possible, adoption serves these children with the best option, not after foster care or institutional care.[95] Furthermore, Bartholet disagrees with the general meaning of the “subsidiarity principle”, that is domestic adoption over intercountry adoption. While defining this principle, Bartholet states that the CRC and the Hague Convention defer on sovereignty. They both provide that states should exercise preference for the in-country adoption but unlike the CRC, the Hague Convention requires “due consideration” of the in-country placement before intercountry adoption and other family care.[96] She continues to argue that the “Hague Convention was designed to take a step beyond the CRC in the direction of validating international adoption and limiting the in-country preference.” [97] In conclusion, Bartholet believes that “…there should be no preference whatsoever for placing children in-country whether in institutions, foster care, or even adoption…if children’s best interests are the driving consideration, instead the goal should be to place the unparented children as early in life as possible in families and provide them with the best chance for healthy environment.”[98]

On the opponents side of the debate is David Smolin. He argues that the child is not born not only the parents but also the broader extended family, thus to him, the phrase “unparented children, those living without family care including institutionalized care” has multiple ambiguities and misleading because a child that has no family ties has never existed, the better term would be “separated child”.[99] He continues to argue that the subsidiarity principle preserves the child’s right to maintain continuity with her culture, language, community, and nation even if he or she is not with the original family which are lost in adoption.[100] Smolin thinks, “…it is wrong to assume that all children living without their parents in what is considered an “institutional setting” are in need of adoption or are unparented.”[101] Smolin concludes that “most children who truly need adoption…. are older children and children with special needs”, these children are often ignored or passed over and it is only the corrective measure is the subsidiary principle.[102] To him, the greatest threat of the future of intercountry adoption is the denial and the failure to adequately respond to its prevalent and serious abusive practices.[103] In conclusion, Smolin argues that there should be a requirement for Hague accreditation or apply its standards to agencies placing children from non-Hague Convention nation; there should also be adequate investigation and prosecution of child laundering and other abusive practices.[104]

The foregoing discussion uncovers the divergent views on intercountry adoption especially on the fact whether it is in the best interests of the child or not exposing the sensitivity of this phenomenon. However, taking into consideration the fact that Ugandans are not in the behavior of adopting children let alone applying for legal guardianship, restricting them just continues to harm the children. This was testified by Peter Nyombi, a lawyer whose firm helps to process court orders for legal guardianships and intercountry adoptions and the former Attorney General of Uganda, he strongly challenged the new law and confessed that he has handled hundreds of applications for legal guardianship but none from an African, therefore the new law robs of the unprivileged children of an assured future that can be provided by foreign adoptive parents.[105]

I acknowledge that intercountry adoptions have been abused by dubious perpetrators to whom it is a lucrative business at the disadvantage of innocent children, parents and families at large as exemplified in Stewart’s story, but to do away with intercountry adoptions or making them the last resort would be throwing the baby out with the bathwater- doing away with something good and while in an effort to get rid of the bad practices, which are avoidable. 

International adoption has been blamed for reducing efforts to find Ugandan solutions,[106] to the contrary, in my opinion, the inadequacy or the lack thereof any efforts by the Government to look after these children and provide in-country solutions is what brought us to this place; the increase in number of children separated from their families.[107] Like most intercountry adoption systems, “the poorly supervised processes or procedures of adoption and improper financial arrangements involving destitute birth mothers and middlemen supplying babies to orphanages,”[108] characterize Uganda’s protection system. To solve the problem therefore, it is not about making intercountry adoption a last resort, restricting the applicants eligible for legal guardianships or revoking adoption orders, the Government of Uganda should address the failures of the system to sieve out the adoptable children from the an unadoptable ones, the loopholes that can be maneuvered by the dubious perpetrators to prosper in child laundering and/or trafficking.

RECOMMENDATIONS AND CONCLUSION

While it has been recommended by a number of critics that Uganda should ratify the Hague Convention,[109] this is not the immediate step required to protect the vulnerable unparented children due to its numerous failures already witnessed as discussed by Bartholet.[110] I recommend that Uganda ratifies the Hague Convention after the expansion and strengthening of alternative care options. The Children (Amendment) Act 2016 is supposed to be a huge step towards the fulfillment of the requirements necessary for it to qualify to ratify the Hague Convention; it establishes the National Children Authority repealing the National Council for Children,[111] however, with its freshness, time will reveal whether this law is actually a step forward.

Like Bhabha suggests, Uganda should learn from the domestic adoption. Domestic moves towards open adoptions, greater access to birth records and easier communication between the adoptive and birth families are consistent with these insights.[112] Bhabha applauds domestic adoptions that they recognize the importance of the inevitable questions of origins, belonging and rejection. It is through this restoring connection to the past can adoptees move with dignity and hope into the future.[113] Therefore I do not agree with the Hodge family, discussed above, who changed Stewart Bukenya’s name to Silas Hodge, this detaches him from his roots, background and past, which should not be the case; it comes with huge consequences of loss of self-identity, belonging and esteem.[114] Because you are taken into another family, I believe you should not lose your identity.

The above notwithstanding, inter-country adoption is a very sensitive phenomena that should be dealt with the utmost care that it deserves for it to achieve its benefits. In addition to the considerations in the law the aspiring foreign parents should carefully consider the reasons as to why these foreign parents are willing to raise a child of a different race. They should be able to give concrete answers to this question, and explain it to the children at all stages in their lives once they ask. They should be able to deal with the different biases and prejudices that they will face while raising these children. The foreign parents should commit to raising strong and proud individuals of color who are not detached from their roots but who take pride in them. This is not easy but it is achievable. Intercountry adoption is redefining race, culture and humanity. It is breaking the walls built between classes of people slowly but surely, the law should not stand in its way.

 

*       LL.M (HLS), Dip. LP (LDC), LL.B (MUK). Advocate of the High Court of Uganda.

[1]    UNICEF’s position on Intercountry Adoption, available at, https://www.unicef.org/media/media_41918.html

[2]    U.S Department, Bureau of Consular Affairs, Intercountry Adoption, available at, https://travel.state.gov/content/adoptionsabroad/en/country-information/learn-about-a-country/uganda.html

[3]    Ibid.

[4]    http://www.alternative-care-uganda.org/resources/adoption-study-march-2015.pdf

[5]    Ibid.

[6]    Uganda tightens foreign adoption rules to thwart child trafficking, available at, http://www.reuters.com/article/us-uganda-children-adoption-idUSKCN0W61OI

[7]    Ibid.

[8]    The Children Act, Cap 59 of the Laws of Uganda.

[9]    Ibid., section 46 (1) (a) and (b).

[10]   Tom Esslemont and Katy Migiro, Fraud and deceit at the heart of Uganda adoptions to United States, May 28th, 2015, http://www.dailymail.co.uk/wires/reuters/article-3101833/Fraud-deceit-heart-Uganda-adoptions-United-States.html

[11]   The Children (Amendment) Act 2016: assented to by the President of Uganda on May 5th 2016 and commenced on June 2nd 2016.

[12]   Ibid.

[13]   Ibid., Sections 13 and 14.

[14]   Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entered into force September 2nd 1990, Article 7 (CRC).

[15]   Elizabeth Bartholet and David Smolin, “The Debate” in Intercountry Adoption: Policies, Practices, and Outcomes (Ashgate Publishing, 2012), available at, http://www.law.harvard.edu/faculty/bartholet/The_Debate_1_13_2012.pdf

[16]   UNICEF’s Fingerprints: Hurting Orphans in Uganda, Children Deserve Families, September 6, 2013, http://childrendeservefamilies.com/unicefs-fingerprints-hurting-orphans-in-uganda/

[17]   Alternative Care for Children in Uganda, http://www.alternative-care-uganda.org/domestic-adoption.html

[18]   Serginho Roosblad, Uganda Tightens Foreign Adoption Rules, March 17th 2016, http://www.voanews.com/a/uganda-tightens-foreign-adoption-rules/3242138.html

[19]   CRC, Supra n. 14, Articles 7 and 8.

[20]   Lakshmi Kant Pandey vs Union of India 1984 AIR 469, 1984 SCR (2) 795, https://indiakanoon.org/doc/551554

[21]   Ibid.

[22]   Ibid.

[23]   Ibid.

[24]   Ibid.

[25]   CRC, Supra n.14, Article 20 (1) and (2).

[26]   Ibid., Article 20 (3).

[27]   Ibid.

[28]   Lakshimi v Union of India, Supra n.20.

[29]   CRC, Supra n.14, Article 21 (b).

[30]   David M. Smolin, Can the Center Hold? The Vulnerabilities of the Official Legal Regimen for Intercountry Adoption, Chapter 9, The Intercountry Debate: Dialogues Across Disciplines, edited by Robert L. Ballard, Naomi H. Goodno, Robert F. Cochran and Jay A. Milbrandt, Cambridge Scholars Publishing, 2015, at page 263.

[31]   Elizabeth Bartholet, Should The U.S. Ratify The CRC? A Look At The Pros And Cons, February 23, 2011, http://www.aapss.org/news/elizabeth-bartholet-should-the-u-s-ratify-the-crc-a-look-at-the-pros-and-cons/

[32]   This Convention is accessible on the website of the Hague Conference on Private International Law, www.hcch.net, under “Conventions” or under the “Intercountry Adoption Section”.

[33]   United States Department of State Bureau of Consular Affairs, The Hague Convention on Intercountry Adoption: A Guide for Prospective Adoptive Parents, https://travel.state.gov/content/dam/aa/pdfs/PAP_Guide_1.pdf

[34]   Hague Convention, Supra n.32, Article 4 (b).

[35]   Smolin, Can the Center Hold? Supra n. 30.

[36]   Nigel Cantwell, The Best Interests of the Child in Intercountry Adoption, pages 42-43, https://www.unicef-irc.org/publications/pdf/unicef%20best%20interest%20document_web_re-supply.pdf

[37]   Elizabeth Bartholet, The Hague Convention: Pros, Cons, and the Potential, Chapter 8, The Intercountry Adoption Debate:Dialogues Across Disciplines, edited by Robert L. Ballard, Naomi H. Googno, Robert F. Cochran and JayA. Milbrandt, page 239 and 241.

[38]   Ibid., page 241.

[39]   African Charter On The Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49, (1990), entered into force November 29, 1999, available at, http://pages.au.int/acerwc/documents/african-charter-rights-and-welfare-child-acrwc

[40]   Ibid., Articles 18, 19 and 20.

[41]   Ibid., Article 24.

[42]   The 1995 Constitution of Uganda, Article 34 (1).

[43]   The Children Act, Supra n.8, Section 4.

[44]   Ibid., Section 46 (1).

[45]   The Children Amendment Act, Supra n.11, Section 14.

[46]   Ibid., Section 14 (6).

[47]   Ibid., Section 14 (7).

[48]   Ibid., Part VIA, Section 43A (2).

[49]   Bribery and Graft: Ugandan families tricked into giving up children for U.S. adoption, http://www.catholic.org/news/international/africa/story.php?id=60825

[50]   Uganda’s child adoption ‘market’ brings misery and confusion, https://www.theguardian.com/world/2014/oct/06/uganda-child-adoption-market-confusion

[51]   Domestic Adoption: Alternative Care Framework Uganda, https://www.alternative-care-uganda.ord/problem.html

[52]   AFRICA: The ‘new frontier’ in international adoption, http://www.adoptionhoksbergen.com/index.php/nl/2-algemeen/87-africa-the-new-frontier-in-international-adoption

[53]   Domestic Adoption: Alternative Care Framework Uganda, Supra n. 51.

[54]   Ibid.

[55]   Lakshmi Kant Pandey vs Union of India, Supra n.20.

[56]   CRC, Article 21; See also ACRWC, 1991, Article 24.

[57]   Jacqueline Bhabha, Child Migration and Human Rights in the Global Age, Family Ambivalence: The Contested Terrain of Intercountry Adoption, Chapter 3.

[58]   Cantwell, The Best Interests of the Child in Intercountry Adoption, Supra n.36, Foreword, page vi.

[59]   Ibid.

[60]   Cantwell, Supra n.58.

[61]   Ed. Jane Jeong Trenka et.al., "Introduction ", “Disappeared Children and the Adoptee as Immigrant" "From Orphan Trains to Babylifts” Lifelong Impact, Enduring Need", "From Victim to Survivor” “Tending Denial” in Outsiders within: Writing on Transracial Adoption (South End Press, 2006),  pages 1-7; 105-114; 139-149; 179-204.

[62]   Cantwell, The Best Interests of the Child in Intercountry Adoption, Supra n.36, page 5.

[63]   Committee on the Rights of the Children, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3, paragraph 1), Committee on the Rights of the Children, http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf

[64]   Cantwell, Supra n.36, page 9.

[65]   Ibid., page 10.

[66]   Ibid.

[67]   UNHCR Guidelines on Determining the Best Interests of the Child, May 2008, http://www.unhcr.org/4566b16b2.pdf

[68]   Cantwell, The Best Interests of the Child in Intercountry Adoption, Supra n.36, page 5.

[69]   Ibid., page 58-59.

[70]   CRC Committee, General Comment No. 14, Supra 63, paragraph 52ff.

[71]   The Children Act, Cap 59, Laws of Uganda, Section 3.

[72]   Ibid., First Schedule.

[73]   Cantwell, The Best Interests of the Child in Intercountry Adoption, Supra 36, page 81.

[74]   Ibid.

[75]   Fraud and deceit at the heart of Uganda adoptions to United States, http://www.dailymail.co.uk/wires/reuters/article-3101833/Fraud-deceit-heart-Uganda-adoptions-United-States.html#ixzz4SUxHq28V

[76]   Todd Schwarzschild, Red flags wave over Uganda's adoption boom, March 2, 2013, CNN, http://www.cnn.com/2013/02/27/world/africa/wus-uganda-adoptions/

[77]   In the Matter of Application for Legal Guardianship by Jonathan Adam and Jill Renae Hodge, HCT-000 MA 0213, Family Division of the High Court of Uganda.

[78]   Solomon Sserwanja, Taken & never returned: When adoption profits the middleman and Taken & Never Returned: Family accused of selling son to American Family, Published on Apr 19, 2013, https://www.youtube.com/watch?v=yEeDL70WKOA and Published on April 22, 2013 https://www.youtube.com/watch?v=kTy6vtcxMg, respectively.

[79]   Solomon Sserwanja, Taken & never returned: Tracing little Stuart Bukenya in the US, Published on Apr 22, 2013, https://www.youtube.com/watch?v=wv7hnlcF9qQ

[80]   Supra n.78.

[81]   Solomon Sserwanja, Taken & never returned: Adoption or Legal Guardianship, Published on Apr 22, 2013, https://www.youtube.com/watch?v=K1nC7dPaiOE

[82]   Ibid.

[83]   Agnes Nandutu, Parliament debates law to ban foreign adoption, NTV News, Published on Mar 2, 2016, https://www.youtube.com/watch?v=MGFsZsxfDPc

[84]   Parliament of Uganda, Parliament passes Children Bill; restricts guardianship to nationals, http://www.parliament.go.ug/index.php/about-parliament/parliamentary-news/784-parliament-passes-children-bill-restricts-guardianship-to-nationals

[85]   Save the Children, Uganda Parliament Passes Children Act, March 22nd 2016, https://uganda.savethechildren.net/news/uganda-parliament-passes-children-act

[86]   The Children (Amendment) Act 2016, Long Title.

[87]   Ibid., Section 14 (a) and (b).

[88]   Ibid., Section (c).

[89]   Ibid., Section 15.

[90]   Elizabeth Bartholet shares her exciting and inspiring journey to adoption in her book, Family Bonds: Adoption and the Politics of Parenting, Houghton Mifflin Company, Boston New York, 1993

[91]   Elizabeth Bartholet and David Smolin, The Debate, Intercountry Adoption: Polices, Practices and Outcomes, Chapter 18, Ashgate Publishing, 2012, available at, http://www.law.harvard.edu/faculty/bartholet/The_Debate_1_13_2012.pdf

[92]   Bartholet, Supra n.87, Introduction, page xv.

[93]   Bartholet and Smolin, Supra n.88, Part I: Bartholet’s Position, page 371.

[94]   Ibid.

[95]   Ibid.

[96]   Bartholet, Should The U.S. Ratify The CRC? A Look At The Pros And Cons, Supra n.31.

[97]   Bartholet and Smolin, Supra n.88, page 373.

[98]   Ibid., page 375.

[99]   Ibid., Part I: Smolin’s Position, page 381-382.

[100] Ibid., page, 386.

[101] Ibid., page 383.

[102] Ibid., page 388

[103] Ibid.

[104] Ibid., page 389.

[105] Agnes Nandutu, Supra n.81.

[106] Alternative Care for Children in Uganda, http://www.alternative-care-uganda.org/problem.html

[107] There are over 50,000 children already in institutions as stated by Alternative Care for Children in Uganda, Domestic adoption: Alternative Care Framework, Uganda, http://www.alternative-care-uganda.org/problem.html

[108] Bhabha, Child Migration and Human Rights in the Global Age, Supra n.55, page 101.

[109] Cantwell, The Best Interests of the Child in Intercountry Adoption, Supra n.60, and AFRICA: The ‘new frontier’ in international adoption, http://www.adoptionhoksbergen.com/index.php/nl/2-algemeen/87-africa-the-new-frontier-in-international-adoption

[110] Bartholet, The Hague Convention: Pros, Cons, and the Potential, Supra n. 37.

[111] The Children (Amendment) Act 2016, Part IIA and Section 26

[112] Bhabha, Supra n.55, page 123.

[113] Betty Jean Lifton, Journey of the Adopted Self: A Quest for Wholeness, New York: Basic Books, 1994, page 68.

[114] Betty Jean Lifton, Twice Born: Memoirs of an Adopted Daughter, Other Press, New York, 1978; In this book Lifton tells a story which you can relate with about the hardships and the unanswered she had as an adopted.