Overhaul essential elements of Malawi’s adoption laws, high court urges

17 February 2023 · Carmel Rickard

The Malawian judge who some years ago authorised singer Madonna’s adoption of two girls has now delivered a thorough-going critique of the legislation surrounding adoptions in that country, with strong recommendations for parliament about changes that should be made urgently, to protect the many vulnerable babies who need new homes and families through the adoption process.

Read judgment

This is a fascinating, multi-layered decision by Malawi high court judge, Fiona Mwale. At one level, there’s the story about the intended adoption and the mini-drama that played out in court over this particular case. But then there’s also her thoroughgoing critique of Malawi’s provisions for adoption, with wide-ranging recommendations to the country’s law-makers, explaining what needs updating and change, and why.

Generally, across the region, adoption hearings are straightforward, with nothing unexpected about them. But the case of A D F M E M D R (these are the initials of the petitioner who wanted to adopt baby K A Z), is quite different.

The baby’s mother died in childbirth, and the father, with the agreement of the maternal grandmother, decided the baby should be put up for adoption. This was primarily because the father is indigent and cannot care for the child.

Academic dreams

Then, along came someone who seemed a perfect fit: a doctor, with an income from which he could obviously afford to take good care of the baby. He has no criminal record or other stain on his copybook. And he has a mother and a brother who have both sworn to look after the child should he die or be incapacitated.

The man who petitioned to adopt KAZ, has never married. His life so far has been all about ‘pursuing academic dreams and financial stability’ but now he feels the time is right to ‘give his mother grandchildren’.

The court hearing of his petition was spread over two days.

Bonded

At the first hearing, the court could observe the interaction between the 18-month-old baby and the prospective adoptive father, and could also hear members of the baby’s biological family explain their decision to give the child to an orphanage for care and, now, to be adopted.

But, said the judge, ‘it was very evident during the hearing that the [would-be father] and the infant ‘had not bonded’. The director of the orphanage where the child has been living carried the baby on her back for the full length of that day’s hearing. The would-be father ‘did not even look in the direction of the infant during the proceedings’ until a moment when the baby woke and started to fuss. The director then took the baby from her back to pacify him ‘and it was only then that [the would-be father] glanced in his direction.’

‘This lack of connection was a matter of great concern to me,’ said the judge. So, she carefully questioned him about how long he had been in the country, and whether he had spent time with the infant. He replied that he’d been in Malawi ‘about 10 days’ and that, as the infant was still young and naturally wary of him, more time was needed for a bond to form.

Conundrum

Judge Mwale therefore ordered the matter to be postponed a fortnight during which the guardian ad litem, specially appointed to watch out for the interests of the baby, should facilitate meetings between the baby and the would-be father, supervise and observe the bonding process that might develop during those meetings.

Before the second hearing, however, the baby’s biological father had a letter sent to court, revoking his earlier agreement to the adoption. Basically, the father said he hadn’t known the adopter would be a single man who had no intention of getting married. This – and the underling question it raised, namely whether permission, once given, could be withdrawn in such a case – posed a conundrum for the court that the judge dealt with carefully in her final decision.

As for the dynamics of the relationship between the would-be father and the baby: it was ‘markedly different’ in the second hearing from before, said the judge.

Matching outfits

‘In an almost theatrical manner, both the infant and the petitioner appeared in court wearing identical or matching outfits. The infant was no longer in the arms of the director of the orphanage, but in the arm of the petitioner.’

But the judge noticed a stranger in her chambers who was helping the would-be father with the baby, and who held the baby’s milk bottle. The judge, concerned for the privacy of the hearing, asked who this was. It turned out that he was the driver of the would-be father, and at this point he left the judge’s chambers.

What about the report of the guardian ad litem? He reported that all had gone well and there were obvious signs of bonding. But the guardian also noted that the would-be father had flown into Malawi just two days before the first court date, something that would explain the initial lack of any bond. Judge Mwale commented, however, that this directly contradicted what the man told the court under oath during the first hearing: that he had been in the country ‘about 10 days and had occasion to spend time with the infant’.

Domestic helpers

The guardian also raised the point that the petitioner seemed to have started on the adoption road with the idea that he could rely on his family in his home country, to provide care for the infant. The fact that there had to be a clear parent figure, charged with the care of the infant, seemed to have passed him by, and it was only during the bonding process that he realised he, himself, would have to take care of the infant.

This, said the judge, was in stark contrast to the evidence the petitioner had given to the court, namely that he would be the primary care provider and would be assisted by domestic helpers, with the family only stepping in to help from time to time.

The judge further concluded that the ‘driver’ must have spent a considerable amount of time with the baby for the obvious bond to have formed that she noticed even in the brief moments that the driver was in her chambers. Either the would-be father had left much of the care of the baby to the driver, or the infant ‘had spent considerable time with both’.

Not inspiring

This observation fitted with the guardian’s concern that the petitioner seemed to expect that the day-to-day care of the child could be left to family members, and that he himself wouldn’t be the primary carer. This wasn’t ‘inspiring’, said the judge.

The guardian also reported the concerns raised with him by the orphanage and the child’s biological father, namely that the petitioner was a single man.

Then came the director of the orphanage where the child was living. She raised her concerns about the report of the guardian, saying that there were few actual ‘supervised’ visits to observe the intended bonding process – in fact this seemed to have been done via a virtual conference, and there was ‘no actual supervised visit as ordered by the court.’ This was contradicted by the petitioner who said he had ‘taken part’ in feeding and changing nappies and that he had visited every day for a week.

Entire lifetime

After carefully considering all the evidence put before her, the judge said the long list of issues that arose from the two hearings showed that the granting an adoption wasn’t ‘a run of the mill decision’. A judge has only a short time to spend with the prospective adoptive parents and the child, yet had to make a decision ‘that will impact both … for their entire lifetime.’

She said the adoption law was anachronistic and discriminatory and offended the right to equality in its views on single people being considered to adopt babies. The law appeared to have been drafted from the point of view that it was necessary to prevent single males from adopting a female child unless there were exceptional circumstances, in order to prevent sexual abuse. It was based on the view, prevalent at the time, that it was only males who sexually abused female children. But it was becoming an increasing problem, worldwide, that sexual and other forms of abuse may equally be perpetrated by a female petitioner who adopted a male child, for example.

Welfare of the child

The law as it currently stood provided little protection on these crucial matters, and she urged the government to speedily amend the legislation ‘so that any threats to the protection and welfare of child’ were thoroughly dealt with, taking into account these realities.

‘I urge the ministry responsible for child welfare and the ministry responsible for justice to take heed of this recommendation as a priority.’

It’s a lengthy judgment – 75 pages in all – in which the judge tackles quite directly a whole host of difficult issues, ranging from the relationship that ought to exist between the state welfare authorities and orphanages where infants waiting for adoption are homed, to discussing the advisability of interim orders, so that the bonding process could be observed before an adoption is made final.

Anomaly

Among these was the ‘anomaly’ she identified, that parties were able to ‘jet into the country’ just days before an adoption hearing and then leave with the infant almost immediately afterwards. This should not continue, she said. ‘There must be some requirement to reside in the country with the infant in order for a proper assessment of the parties to be made.’

Many of these will require legislative changes and therefore could be some time in being made – but the judge has strongly motivated both the need for changes to the legal and practical content as well as the need for urgency.

For example, she has pointed to the need for Malawi to become a signatory to the Hague Convention on Intercountry Adoption, a convention which, she said, ‘provides the practical requirements necessary for states to safeguard the best interests of the child in … cases where foreigners fly in to adopt a child.’

Veracity

On the particular adoption petition before her, however, her conclusion was that it ought to be denied.

She said the man’s ‘lack of veracity’ in his evidence the court about how long he had been in Malawi before the first court date, plus the guardian ad litem’s concern about the petitioner’s ability to provide actual care, all raised doubts that the court ‘cannot ignore’.

The child was in need of help and there was no evidence of any Malawian being willing to take him. While the petitioner could possibly offer the security of a family, the facts have shown that his ‘lack of credibility and integrity preclude him from eligibility.

Integrity

‘Even after a supervised bonding period, doubt still lingers over the petitioner’s character and integrity. In view of protecting the infant’s long-term care any doubts must be exercised in the infant’s favour.’

She therefore ordered that the baby was to be returned to the orphanage ‘unless and until’ the biological father was assessed and found capable of providing for the child or a court authorises someone else as fit and proper parents to adopt the child.

* 'A matter of justice', Legalbrief, 7 February 2023

Carmel Rickard

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