Court name
High Court of Uganda
Judgment date
28 October 2009

In Re: Hodgkins Olivia (An Infant) (Family Cause-2009/132) [2009] UGHC 172 (28 October 2009);

Cite this case
[2009] UGHC 172
Short summary:

HR, Parental care and protection

THE REPUBLIC OF UGANDA

IN THE HIGH COU
RT OF UGANDA HOLDEN AT KAMPALA

FAMILY CAUSE NO. 132 OF 2009

IN THE MATT
ER OF HODGKINS OLIVIA (INFANT)

AND

IN THE MATT
ER OF AN APPLICATION FOR APPOINTMENT OF FRANKLIN GUILLAUME AND

DENISE JO-ANNE GUILLAUME AS LEGAL GUARDIANS OF HODGKINS OLIVIA (AGED 1 YEAR)


FOR: HON. LADY JUSTICE MARGARET C. OGULI OUMO

RULING:

The applicants brings this application by Notice of Motion under Article 139(1) of the

Constitution of the Republic of Uganda, 1995, sections 14, 33 and 39 of the Judicature Act Cap

13 Laws of Uganda and section 3 of the Children Act cap 59 laws of Uganda in which they are

seeking for the following orders;
1. That they be appointed legal guardians of the infant, Hodgkins Olivia.

2. That the infant be allowed to migrate to Canada to live with the applicants in accordance with Canadian law.

3. That costs of the application be provided for.
The application is supported by the Statutory Declarations of the applicants dated 20/06/09; the affidavits of William Edema, the
Administrator of the Home where the infant has been staying dated 20/09/09 and that of Opio Ouma, the Senior Probation Officer, Jinja
District dated 20/09/09.

The grounds of the application are:
1. That the infant was abandoned by her mother.

2. That the whereabouts of the infant’s mother are not known.

3. That the applicants wish to provide the infant with a home, parental love and care.

4. That this application is for the welfare and benefit of the infant.
At the hearing of the application, the applicant was represented by Mr. Peter Nyombi, assisted by Rebecca Mugabi.

The High Court has original jurisdiction over all matters in Uganda.

See: Article 139(1) of the Constitution. 1995.

Section 14 of the Judicature Act, on similar terms grants the same jurisdiction to the court.

In the exercise of that jurisdiction, the High Court has powers to grant remedies absolutely or on such terms as it thinks fit.

See: Section 33 of the Judicature Act.

Similarly, under section 98 of the Civil Procedure Act, the High Court has powers to grant such remedies as are necessary in the interests
of justice and to prevent the abuse of court process.

A child has been defined as any person below the age of 18 years of age.

See: Section 2 of the Children Act Cap 59

The infant here is 1 year old — see her Birth Certificate attached as Annexture ‘E’ to Mr. Edema’s affidavit
on the court record.

In making any decision concerning a child, the welfare of the child is of paramount importance.

See: Section 3 and paragraph 1(b) of the First Schedule to the Children Act.

Issue
No. 1—whether the grant will be for the welfare of the child and in her best interest?

Mr. Nyombi learned Counsel for the applicants submitted that the child was born on about 12/06/08 and a copy of her Birth Certificate
is attached as Annexture ‘E’.

That according to paragraph 6 of Edema’s affidavit, he depones that the infant was abandoned

by her mother Nabirye Regina who has disappeared since then. That she was abandoned at

Bugembe, Budumbuli — see report of the Child and Family Protection Unit, Jinja attached to

Edema’s affidavit as Annexture “F”.

That upon receipt of the report that the child and been abandoned, the Officer in Charge, Child and Family Protection Unit, Jinja
Police station, referred the matter to the Probation office, Jinja A copy of the letter is attached as Annexture ‘G’.


That on 13/08/08 the Probation and Social Welfare Officer referred infant to the Home for custody —see paragraph 4 of Opio
Ouma’s affidavit.

On 13/10/08, the infant was committed to the care of Welcome Home Ministries by the Family and Children Court — Jinja —
a copy of the Care Order is attached to Edema’s affidavit as Annexture ‘H’.

Counsel for the applicant submitted that in an attempt to locate the infant’s parents, her photograph was advertised in the
New Vision newspaper of 14/9/09 but nobody has turned up to claim the infant — see Annexture ‘J’ to Edema’s
affidavit.

The history of the child is confirmed by the Senior Probation and Social Welfare officer in his affidavit that he is the one who
referred the child to welcome Ministries.

Mr. Nyombi contended that the Home has had the custody of the child since then. That section 3 of the Children Act provides that
in determining issues concerning children, the paramount consideration is the welfare of the child. That the application is made
for the welfare of the infant for the following reasons:

1.      
The child was abandoned by his parents.

2.      
The whereabouts of the parents are not known.

3.      
That the applicants’ home has been recommended as suitable for adoptive purposes as per Annexture ‘D’ to the first
applicant’s Statutory Declaration.
In view of the above, court is of the view that the grant, if made, will be for the welfare of the child and in her best interests
as it will enable her to grow up in a home with loving parents and care instead of an institution.

The second issue is whether the applicants will be suitable guardians for the child?

The applicants are Canadian citizens — copies of their passports are attached as Annextures ‘A’ to their respective
Statutory Declarations on the court file.

The applicants are married and a certified copy of their Certificate of Marriage is attached to Franklin Guillaume’s Statutory
Declaration as Annexture “B”.

The applicants have 2 children;
1. Anika Sharon Guillaume, 5 years and;

2. Peace Franklin Guillaume, 3 years.
The applicants are gainfully employed. The first applicant is an Accountant at Delloitte and

Touch L.L.P as per the notarized copy of a letter from his employers attached to his Statutory

Declaration as Annexture ‘C’.

His wife, Denise is a home a maker but works part time at Edmonton Public Schools — a certified copy of the letter from the
Administrator of the school is attached to her Statutory Declaration as Annexture ‘B’.

The applicants have no criminal record and their criminal clearance Certificates are attached as Annextures ‘E’ and ‘D’
to their respective Statutory Declarations.
Counsel for the applicants submitted that they are willing to provide a home, parental love and care for this child. That the application
is being made for the welfare and benefit of the infant.

That the applicant’s home has been recommended as being suitable for adoptive purposes — see Annexture ‘D’
to Franklin’s Statutory Declaration.

In view of the above, court is of the opinion that the applicants are able to provide for the child and support her welfare and upbringing
and she will not have difficulty integrating into their family since they already have 2 other children.

Consequently, they are suitable guardians in the opinion of court.

In view of the above, the application is allowed in the following terms and conditions:

1.      
The applicants Franklin Guillaume and Denise Jo-Anne Guillaume are appointed legal guardians of the child, Olivia Hodgkins, with full parental rights and responsibilities.

2.      
The applicants are directed to register the order with the Registrar of Documents, Uganda Registration Services Bureau, Ministry of
Justice and Constitutional Affairs, Kampala.

3.      
The applicants are directed to register the order with the Canadian Embassy in Nairobi, Kenya and the Ugandan Embassy in Canada.

4.      
The applicants are directed to obtain a Ugandan passport for the child and to renew it from time to time as required by the law.

5.      
The applicants are permitted to travel out of Uganda and live with the child in Canada in accordance with Canadian law.

6.      
The applicants are directed to register the order with the authority responsible for children and family welfare in Alberta, Canada
and to file a report once every year, with the Registrar, Family Division, High Court, Kampala, regarding the development and state
of the welfare of the child and to continue to do so until the child is 18 years of age or until directed otherwise.

7.      
The court makes no order as to costs.



Margaret C. Oguli Oumo

JUDGE

29/10/09


Present:

1. Rebecca Mugabi, counsel for the applicants

2. The applicants

3. Nalongo Nandaula — Court Clerk.

4. Nyakwebara Elizabeth — Research Assistant.