Adoption Of Children

The law has long recognized adoption as a lawful way for persons who are not the biological parents to gain legal parental rights with respect to an “infant”. The Adoption Act of Anguilla defines an infant as a person under 18 years of age who has never been married.

The effect of an adoption order by the Court is that the biological parents are permanently deprived of their parental rights. As from the date of the order, all rights, duties, obligations and liabilities of the parents or guardians of the adopted child are transferred solely to the adoptor. The relationship between the adopted child and the adoptor is that of a child born in legal wedlock.

Before the order is made, it is therefore absolutely necessary to ensure that everyone involved understands its implications. The consent of the parents or guardians must be obtained, and due consideration must also be given to the wishes of the infant, if the infant is old enough to understand what is happening. The adoption order must be shown to be in the best interests of the adopted child.

A child can be adopted by a single person or by two spouses jointly. However, the law places some restrictions on who can adopt a child. Firstly, the adoptor must be over the age of 25 years, unless the adoptor is the mother of the infant.

Secondly, the adoptor must be more than 21 years older than the infant. However, an exception is made where the adoptor is a close family relative of the infant; eg, aunt, uncle, brother, sister, grandparent. Another exception is made where two spouses are making the application for adoption and they are the mother and father of the child (who presumably was born before they were married).

Thirdly, the law does not allow a sole male adoptor to adopt a female infant, unless there are exceptional circumstances that justify making an adoption order. The law’s desire to protect young females in this situation is obvious, but raises the question whether a sole make adoptor can adopt a male infant. It would seem so. In today’s sometimes bizarre world, should young males be afforded similar protection?

Fourthly, as indicated previously, the consent of all parents or guardians must be obtained. However, the Court can dispense with consent where the parents or guardians have abandoned or deserted the child; cannot be found; are incapable of giving consent; or have not supported the child. Also, an application for adoption which is made jointly by two spouses must be made with the consent of both, unless the Court dispenses with this requirement.

Finally, an adoption order cannot be made unless the adoptor is resident and domiciled in Anguilla, or unless the child is a British Subject and is resident in Anguilla. To my mind this can rise to unjust results. I will give a practical example.

Some years ago I was approached by an Anguillian who has been living in the United States for many years. Her young Anguillian niece had been living with her on vacation for a few months, and she wanted to adopt her, with the consent of the parents. Because it would take a long time under US law, she wanted the adoption to take place in Anguilla.

However, there were some obvious legal hurdles. The fact that she had been living in the US for many years meant that she was no longer “resident or domiciled” in Anguilla. As a result she was unable to apply for an adoption order in Anguilla.

This is clearly an unsatisfactory situation. It means that Anguillians who live abroad cannot adopt Anguillian children under Anguillian law, but anyone who is resident and domiciled in Anguilla may do so. This is an area of the law which appears to be in need of reform.

Alex Richardson is Managing Partner of the law firm Alex Richardson & Associates, P O Box 371, The Babrow Building, The Valley, Anguilla, Tel: 264 498 4224, Fax: 264 498 4220, email: arichardson@anguillanet.com. He is also Managing Director of Paragon Corporate Services Ltd.