1.0 Background
on 1st February 2024, I received a call from England by an individual who introduced himself to me as a father of a 6-year-old minor who had been abducted and investigation by the British Metropolitan police had located the Child in Uganda. This person further informed me that he obtained our contact from the Foreign Commonwealth & Development (FCDO) List. This person whose name we will not disclose in order to observe our client confidentiality protocols explained that his partner (also British Citizen) had lied to him (in order to obtain his consent) that she wanted to send their six-year-old minor (also a British Citizen) to Uganda for a three weeks Holiday. He further explained that the mother who was born and raised in Uganda but had migrated to England and obtained British Citizenship had also gone missing from England immediately after she sent the Child to Uganda unaccompanied purportedly for Holiday.
I advised that due to the tender age of the Child, we needed to immediately conduct a welfare check on the minor using the British Metropolitan police investigation report provided to us by the British High Commission in Uganda. We engaged the Ministry responsible for the children in Uganda and on 24th march 2024 with the help of GPS location map, we travelled and discovered the child who had been placed in custody of the grandmother with instructions that no one apart from the mother should access the child. I was able to interact with the minor and also inspected his British passport which contained a visa which had expired a week earlier. All these facts were relayed to our client who immediately obtained visa and travelled to see his son.
Upon arrival of our Client, we guided him that it was prudent to introduce himself to the area local police and obtain escorts to the school where the minor had been placed in a boarding section and the grandmother worked in the same school as matron. Whereas we did not think that any father needs permission of the police to see his son, we decided that he should seek police escort to guarantee his safety. The Police and local authorities were extremely hesitant to lead our Client to the school claiming that our Client needed a court order to access his son to which we explained that no parent needs an order to access his or her Child in absence of an order prohibiting him or her. This matter was referred from authority to authority until it was concluded by the Regional Chief magistrate that the father did not require any order. The following morning, our client was escorted to the school by the local police but found that the grandmother had been tipped off and had been whisked away with the child that very morning.
Frustrated by the level of misinformation and hesitation among junior and senior authorities/officials, we agreed with my client to open a criminal case against the grandmother and also file for Custody in Uganda. We also decided to petition the Ministry responsible for Children to rescue the minor from the grandmother and place him in an alternative care centre as provided under the children care policies in Uganda. The said rules are based on the United Nations Guidelines for Alternative care of Children under the Convention on the rights of the Child (CRC) which Uganda ratified in 1990.
,Under the Rules, for the ministry to take over and place the child under alternative care, the applicant must satisfy two conditions; a) Applicant must have filed a Custody application pending determination, b) the Applicant must have been prevented from accessing the child by the other parent. The Ministry reviewed the application and agreed that the same satisfies the conditions and consequently directed the Chief Administrative officer of the district where the child was hidden to work with the police and rescue the Minor which was done immediately.
The said rescue coincided with the final hearings for Custody and after about seven days of keeping the minor in the alternative care centre, our client was granted full Custody from the Family and Children Court and the care centre handed over the child to him. Unfortunately, on his way to Kampala, the Chief administrative officer (CAO) used the police to intercept our client who was in lawful custody of his son for the first time in six Months! The CAO purported that the Lower Court which had issued a custody order was not clothed with jurisdiction to do so. The CAO further informed my client that the Responsible Ministry had informed her that since the parents are both British Citizens, they were required to apply for “international Custody” in the High Court not the lower Court. We found the CAO’s argument to be one that was resulting from self-misdirection and/or misinformation and we tried to use the simplest legal explanations to guide her on the jurisdiction of the FCC Court and absence of the concept of “international Custody” in Ugandan laws in vain.
At this point our client was utterly disappointed for holding a Court Order that was being challenged by everyone including the Ministry officials and the Chief Administrative officer who are by law required to respect it. We were equally astonished by the confusion that officials orchestrated around Custody, while confusing it with the requirements around inter-country adoption and guardianship of children as provided under the children amendment act, 2016.
At this point, we held a firm opinion that the CAO had kidnapped the minor from the lawful custody of its father and she could be prosecuted for the said commission. We nonetheless decided to engage the Ministry and the Highest Court to prevail over the CAO to respect the Court order. Indeed, on 21st June 2024, the High Court through a letter confirming validity of the Custody order, ordered the CAO to handover the Child and the same was done. We were able to immediately book the applicant and his Child on the next available flight to UK where they reunited and are now living happily.
This article is intended to address and correct the misunderstanding we discovered around the practise and procedure of obtaining Custody, which is often overly confused with requirements for adoption and guardianship. It is a long article because it is intended to be contextual and comprehensive.
2.0 The Law governing Custody of Children in Uganda
The Laws governing the aspect of Custody of children in Uganda include among others the following;
- The 1995 Constitution of the Republic of Uganda as amended
- The Children Act, Cap 59
- The Children (Family and Children Court Rules (SI 59-2
- The United Nations Convention on the Rights of the Child (Applied with appropriate modifications to suit the circumstances in Uganda)
- The Organisation for African Unity Charter on the Rights and welfare of the African Child (Applied with appropriate modifications to suit the circumstances in Uganda)
3.0 Meaning of custody under laws of Uganda
The Children Act Cap 59 or any other statute in Uganda do not define the term Custody.
Section 1(f) of the Children Act Cap 59 however, defines Custodian as a person in whose care a child is physically placed. This is the person whom the Family and Children Court has assessed to be in the best position to offer love, care, protection and supervision of the child. In other words that person takes on full responsibility for the child’s needs such as food, clothing, medical care, instruction among others. In many cases Courts will order the parent with visitation rights to contribute towards maintenance of the Child.
4.0 Which Court is clothed with jurisdiction to grant Custody Orders in Uganda?
According the Children Act as amended and the Children (Family and Children Court Rules (SI 59-2 the Family and Children Court is the Court clothed with the jurisdiction to grant Custody orders. The said Family and Children Court is established under Section 13 of the Children Act Cap 59 and is to be in every district presided over by a magistrate not below the grade of Magistrate Grade 2. Essentially, this Court is the Magistrate Grade 1 Court in every District. Under Section 14 of the said Act, the Jurisdiction of the Family and Children Court includes hearing all applications relating to child care and protection in Uganda
To further operationalise the Family and Children Court, the Children (Family and Children Court Rules (SI 59-2 were enacted and Rule 19 provides a list of orders that can be obtained from this Court and the said orders include the Custody Order.
Therefore, the framers of the statute did not require that the citizenship of the Applicant or the child is of essence in custody applications. This is totally different in respect to adoption and guardianship.
Importantly however, the above notwithstanding, the High Court has unlimited original jurisdiction to hear all matters.
5.0 Which Court is clothed with jurisdiction to grant adoption orders
Unlike in cases of Custody above, jurisdiction for hearing adoption applications is based on among others the citizenship of the Applicant and the Child. Section 44 Children Act is to the effect that an application for adoption order may be made to the Chief Magistrates Court within the jurisdiction of which the applicant or child resides where both the child and applicant are citizens of Uganda,
Where the child or the applicant is not Citizen of Uganda, such application shall be made to the High Court. The Act in the same vein introduces the concept of intercountry adoption and describes the intricacies around the same.
6.0 Legal guardianship under the children amendment act, 2016
The Children Amendment Act, 2016 introduced legal guardianship to apply only to children in Uganda by citizens of Uganda. This means that a person who is not a citizen of Uganda is disqualified by law to apply.
7.0 Key considerations before grant of Custody
Custody orders may arise from divorce proceedings or from separate independent Custody applications especially for parents who are not married but have a child. Whether arising from divorce proceedings or from independent applications, the Consideration before granting Custody is contained in statutory provisions and a plethora of case law. Section 3 of the Children Act enjoins Court to consider the Welfare principles and the Children’s rights set out in the First Schedule to the Act as guiding principles before making any decisions. Several children rights activists have described the Welfare principle as a “golden thread of “decision making. Adding that it represents the paramountcy of the welfare of the Child when decisions are being made.
What this essentially means is that, life circumstances such as strong finance and social status surrounding the Applicant parent and Respondent parent in Custody applications will only be considered to the extent that they are likely to improve the welfare of the Child. In many cases for example, Courts have granted custody of children to the financially weaker parent and ordered the financially strong parent to pay regular maintenance.
8.0 Variation of Custody orders
The parent who is granted a custody of the child has a duty to ensure that the child’s rights and welfare requirements are maintained. Under Section 85 Children Act, if Court is satisfied on information from the probation and social welfare officer or an official of a local Government that the parent who has custody is wilfully neglecting the child, Custody shall be granted to the other parent.
Suffice to note that the Respondent could also apply for variation of Custody as long as he/she is able to satisfy court that the parent with custody has failed in his/her duty to the Child.
The Court will not grant a variation application unless it is convinced that the said variation is brought in the best interest of the Child in issue.
9.0 Circumstances when a child may be placed in an alternative care Centre
There circumstances when a child may be placed under the care of an approved care centre or an individual. If court determines during a divorce proceeding that the child is likely to suffer significant harm as a result of both parents being unfit, it may direct that the child is placed in alternative care. During such occurrence, the parents shall be allowed to have reasonable access to their child unless it is not in the best interest of the Child.
The other scenario is where the parents are fighting for custody of the child and one is being denied access. The parent who is being denied access may petition the Ministry of Gender, Labour and Social Development for an administrative remedy. If the Ministry reviews the petition and confirms that the petitioner is being denied access and has a pending Custody Application in Courts of law, it will direct the Chief Administrative Officer of then district where the child is kept to rescue the child and place him/her in Government approved alternative care centre pending outcome of the Custody proceedings.
10. Cases when Custody may be determined during a divorce petition
Whereas couples are free to petition Courts of law to determine Custody whether married or unmarried, there instances when the custody of children may be determined during the hearing of a divorce petition.
The law regulating divorce of married couple’s desires that before Court dissolves any marriage, it shall inquire into all incidental aspects such as marital property, Custody of Children and maintenance.
As such, Custody may be determined by the Court determining divorce of parties and issues an omnibus decree to parties.
11. Conclusion
From our experience of attending to Custody instructions especially those which involve children of very tender years, it is crucial that parents appreciate the value of compromise. It is always desirable to work with a family Lawyer to help you work out a settlement to avoid prolonged Court engagements as the same may negatively affect the minor.
