In the matter of an Application to be appointed as Legal Guardian by Robert Glenn Smith & Kristi Lynn Smith (Family Cause 266 of 2010) [2011] UGHCFD 1 (7 February 2011)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (FAMILY DIVISION) FAMILY CAUSE NO FC-0266 OF 2010 IN THE MATTER OF ALEX WANDERA AND FIONA MIREMBE (CHILDREN)**

**AND**

## **IN THE MATTER OF AN APPLICATION FOR APPOINTMENT AS THE LEGAL GUARDIANS OF ALEX WANDERA (AGED SIX YEARS) AND FIONA MIREMBE (AGED FOUR YEARS) BY ROBERT GLENN SMITH AND KRISTI LYNN SMITH**

## **BEFORE: HON. JUSTICE LAMECK N. MUKASA**

#### **RULING**

I I i i t

> This is an application brought by Notice of Motion under article 139 (vi) of the Constitution of the Republic of Uganda, Sections 14, 33 and 39 of the Judicature Act and Section 3 of the Children's Act. The Applicants, Robert Glenn Smith and Kristi Lynn Smith are seeking orders that:

- 1. The applicants be appointed legal guardians of **ALEX WANDERA** and **FIONA MIREMBE.** - 2. The said children be allowed to immigrate to United States of America (USA) to live with the Applicants. - 3. Costs of this application be provided for.

The grounds for the application are as follows:-

- 1. That the mother of the children has no source of income to look after them. - 2. That the children are single orphans, their father having died. - 3. That the paternal uncle of the children is a peasant with no source of income hence could not provide for the children. - 4. That the Applicants wish to provide the children with a house, parental love and care. - 5. That the application is for the benefit and welfare of the children.

In applications of this nature court must inter alia consider the following:-

- (i) That the child is below the age of eighteen years. - (ii) That the welfare of the child is paramount. - (iii) The child's right to education and guidance; immunization; adequate diet; clothing; shelter and medical attention and protection from discrimination, violence, abuse and neglect. - (iv) That the child shall not be employed or engaged in any activity that may be harmful to his or her health, adventure or mental, physical or moral development.

See Article 34 of the Constitution, Sections 2 to 7 of the Children's Act.

This application is supported by two Statutory Declarations deponed by Robert Glenn Smith and Kristi Lynn Smith, respectively, the applicants. It is also supported by the affidavits deponed to, respectively by:-

- Prosy Namulindwa Hamire, the Administrator of M/S Noah's Ark Children's Home. - Nandera Sylvia, biological mother of the children; - Moses Bhatalingayah, the paternal uncle to the children; - Florence Nakokha, the LC1 Chairperson of Namayingo East village, Buyinga Sub-County, Bugiri District. - Julius Ogalo, the Senior Probation Officer, Busia District.

Before me at the hearing were the Applicants, the two children, their mother, Ms. Prosy Namulindwa Hamire and their paternal uncle, Moses Bhatalingayah.

Before proceeding with the merits of the application I must comment about Nandera Sylvia's affidavit. Before me she appeared not to understand English. Her affidavit was thumb printed before Chris C. K. Ndozireho, a Commissioner for oaths. There was an endorsement to show that the affidavit had been read back to her and translated in the language she understood properly. Alive to the provisions of Article 126 of the Constitution, that substantive justice shall be administered without undue regard to technicalities, with the help of a translation into Lusoga; the language she understood; by Ms Prosy Namulindwa Hamire, I read and explained the contents of the affidavit to Nandera Sylvia. She appeared to understand its contents and confirmed that what it contained was truthful.

Nandera Sylvia, in her affidavit avers that she is the biological mother of Alex Wandera and Fiona Mirembe, both her and Balikowa Patrick, now deceased.

The Birth Certificate, annexure A and B show that the children were born on the 14th day of July 2004 and 14th day of December 2005 respectively. Both Moses Bhatalingayah and Florence Nakokha, in their respective affidavits, confirm that Nandera Sylvia is the mother of the two children. I visibly saw and find that the children are respective, persons below 18 years of age.

The father of the children is dead. Nandera Sylvia, in her affidavit avers that she has no source of income to look after the children. Moses Bhatalingayah avers that he is the only surviving brother of the late Patrick Balikowa following Balikowa's death he became the guardian of his children. He confirms that the mother of the children has no reliable source of income to look after the children. Consequently he, together with the children's mother appeared to Noah's Ark Children's Home and surrendered them with the care of the said home. Julius Ogalo, the Senior Probation Welfare Officer, Busia District avers that he recommended that Noah's Ark Children's

Home be granted a Court Order to take care of the children. In the respective recommendations to Court he stated:

*"...... The caretakers happen to be in a very pathetic financial situation andas result ofbeing unable to cater for even the most basic needs, they approached Noah's Ark Children's Home requesting for the boy (girl) to be taken up so as to have a better chance of survival, growth and development........".*

Both Julius Ogalo's and Prosy Namulindwa Hamire's affidavits show that on 19th August, 2010 the family and Children's Court at Busia granted M/S Noah's Ark Children's Home Care Orders in respect of each of the two children. The children have since been committed to the said home. In their respective Statutory Declaration, the Applicants stated that they intend to live with the children in the United States of America (USA). They aver and undertake to provide the children with a home, parental love and care. Mr. Peter Nyombi submitted that the applicants had been notified and appreciated the rule against discrimination, violence, abuse and neglect. Before me, Nandera Sylvia expressed the love she has for her children. She however stated that for the interest she has for her children to be properly provided for and for their welfare she was prepared to part with her children far away from home. Considering all the above I find that it is in the best interest of the children to separate them

from their biological mother and the application is for the welfare of the children

The Applicants are husband and wife who married on 11th August 1999 as per the attached marriage license.

The couple has three biological children namely: Shelbi Lynn Smith (aged 14 years), Baili Rose Smith (aged 11 years) Malloni Shamblin Smith (aged 8 years). Alex Wandera is above 6 years while Fiona Mirembe is above 5 years. Both applicants are American citizens. Robert Glenn Smith is aged 40 years while Kristi Lynn Smith is aged 41 years. Robert Glenn Smith is a Research Engineer employed by Lexmark International of Lexington, Kentucky, USA. He also serves as a Pastor at Harmony Christian Church. Kristi Lynn Smith is a stay at home mother.

Attached to the Applicant's Statutory Declaration is the Applicants Home Study Report prepared by Promise Kids a future Inc, an agency licensed by the Commonwealth of Kentucky, United States of America (USA) to provide home studies, post adoption and finalization services in accordance with Kentucky regulations KRS 199-940-KRS 199-670 and KAR 9051:310. The report shows the visits made to the Applicants' home, the interviews conducted with both applicants and the children and the pre-adoption and parenting training and preparation conducted. The report considers the applicants home

and community environment, finances, health, criminal background and any others. The Report recommends the Applicants as excellent parents and very able to adopt children into their home with sound financial and community resources. The report recommended and approved the Applicants to adopt up to three children of either gender, arising from the ages of zero to ten years of age. The Criminal Records Reports attached to their respective Statutory Declaration show that the Applicants have a clean criminal record.

In consideration of all the above I find the Applicants suitable for appointment as guardians for the children.

The application is allowed in the following terms and conditions:-

- 1. The applicants **ROBERT GLENN SMITH** and **KRISTI LYNN SMITH** are hereby jointly appointed Legal Guardians of the Children **ALEX WANDERA** and **FIONA MIREMBE.** - 2. The applicants are to register this Order of Legal Guardianship with the Ministry of Gender, Labour and Social Development. - 3. The Applicants are to obtain a Ugandan passport for each of the children and renew it from time to time as the law requires.

- 4. The applicants are, with clearance from the United States Embassy in Uganda, permitted to travel out of Uganda with the said children. - 5. The Applicants are directed to register the Order of Legal Guardianship and the presence of the said children in the United States of America (USA) with the Ugandan Embassy in the United States of America (USA). - 6. The Applicants are to keep in contact with Nandera Sylvia, the biological mother of the children, and yearly file a report regarding the state of health, education, welfare and development of the children with the Registrar, Family Division Court, High Court of Uganda, copied to the Children's biological mother, until each of the children is 18 years of age or until this court directs otherwise. - 7. The court makes no order as to costs.

**LAMECK N. MUKASA JUDGE 7/02/2011**

## **7/02/2011: at 11.20 a.m,**

Ms. Agnes Naziwa for Applicants. Applicants present. The Infant present. Ms. Rose Akullu Court Clerk.

#### **Court:**

Ruling delivered.

**LAMECK N. MUKASA JUDGE 7/02/2011**