ADOPTION ACT
Arrangement of Sections
Section
PART I
PRELIMINARY
1. Short title
2. Interpretation
PART II
MAKING OF ADOPTION ORDERS
3. Power to make adoption orders
4. Restrictions on making adoption orders
5. Consent to adoption
6. Evidence of consent of parent or guardian
7. Functions of court as to adoption orders
8. Interim orders
9. Adoption orders in respect of children previously adopted
10. Jurisdiction and procedure
PART III
REGISTRATION OF ADOPTION ORDERS
11. Adopted Children Register
12. Registrations of adoptions
13. Amendment of orders and rectification of Registers
PART IV
EFFECT OF ADOPTION ORDERS
14. Rights and duties of parents and capacity to marry
15. Intestacies, wills and settlements
16. Industrial insurance, etc.
17. Affiliation orders, etc.
PART V
ADOPTION SOCIETIES
18. Restriction on making arrangements for adoption
19. Registration of adoption societies
20. Procedure and right of appeal
21. Inspection of books, etc.
22. Arrangements by adoption societies for adoption
PART VI
SUPERVISION OF THE COMMISSIONER
23. Application of Part VI
24. Exemptions from Part VI
25. Duration of application of Part VI
26. Notification of taking possession of an infant
27. Notification of change of residence, etc.
28. Summary order for removal of infant
29. Removal of infant in respect of offences
PART VII
MISCELLANEOUS AND GENERAL
30. Prohibition of certain payments
31. Restriction upon advertisements
32. Restriction on sending infants abroad
33. License to send infant abroad for adoption
34. Service of notices
35. Offences by bodies corporate
36. Penalties
37. Regulations
38. Rules
AN ACT
to provide for the making and registration of adoption orders; to provide for the registration and control of adoption societies; to regulate the making of arrangements by adoption societies and other persons in connection with the adoption of children; to provide for the supervision of adopted children by the Commissioner for Juvenile Welfare in certain cases; to restrict the making and receipt of payments in connection with the adoption of children; and to provide for matters incidental to or connected with the foregoing.
[1st August, 1956]
Act 5 of 1956,
Act 32 of 1958,
Act 13 of 1994,
Act 24 of 1997,
GN 276 of 1964,
GN 497 of 1964,
SI 53 of 1965.
PART I
PRELIMINARY
This Act may be cited as the Adoption Act.
(1) In this Act, unless the context otherwise requires—
"abroad" means in any country outside Zambia;
"adoption order" has the meaning assigned to it by section 3;
"adoption society" means a body of persons whose functions consist of or include the making of arrangements for the adoption of children;
"body of persons" means any body of persons, whether incorporated or unincorporated;
"Commissioner" means the Commissioner for Juvenile Welfare appointed under the provisions of section 5 of the Juveniles Act;
"court" means a court having jurisdiction to make adoption orders under the provisions of section 10;
"custodian" means the person in whose care and possession an infant is or is to be placed in pursuance of any arrangements made under the provisions of this Act;
"father", in relation to an illegitimate infant, means the natural father of such infant;
"foreign infant" means a person who is below the age of 18 years and is not a citizen of Zambia, but shall not include a person who is or has been married;
[Ins by s 2 of Act 24 of 1997.]
"infant" means a person who has not attained the age of 21 years, but does not include a person who is or has been married;
"interim order" means an order made under the provisions of section 8;
"juveniles inspector" means a person appointed as such under the provisions of section 6 of the Juveniles Act;
"place of safety" has the same meaning as in the Juveniles Act;
"registered adoption society" means an adoption society registered under the provisions of Part V;
"Registrar-General" means the Registrar-General of Births and Deaths appointed under the provisions of section 3 of the Births and Deaths Registration Act;
"relative", in relation to an infant, means a grandparent, brother, sister, uncle or aunt, whether of the full blood, of the half-blood or by affinity, and includes—
(a) where an adoption order has been made in respect of the infant or any other person under the provisions of this Act, or of the repealed Act, any person who would be a relative of the infant within the meaning of this definition if the adopted person were the child of the adopter born in lawful wedlock;
(b) where the infant is illegitimate, the father of the infant and any person who would be a relative of the infant within the meaning of this definition if the infant were the legitimate child of his mother and father;
"the repealed Act" means the Adoption of Children Act, Chapter 136 of the 1948 Edition of the Laws;
"subordinate court" means a subordinate court of the first or second class as defined in the Subordinate Courts Act.
(2) For the purposes of this Act, a person shall be deemed to make arrangements for the adoption of an infant if, not being a parent or guardian of the infant, he enters into or makes any agreement or arrangement for, or for facilitating, the adoption of the infant by any other person, whether the adoption is effected, or is intended to be effected, in pursuance of an adoption order or otherwise, or if he initiates or takes part in any negotiations of which the purpose or effect is the conclusion of any agreement or the making of any arrangement therefor, or if he causes another to do so.
PART II
MAKING OF ADOPTION ORDERS
3. Power to make adoption orders
(1) Subject to the provisions of this Act, the court may, upon an application made in the prescribed manner, make an order (in this Act referred to as an adoption order) authorising the applicant to adopt an infant.
(2) An adoption order may be made on the application of two spouses authorising them jointly to adopt an infant.
(3) An adoption order may be made authorising the adoption of an infant by the mother or father of the infant, either alone or jointly with her or his spouse.
4. Restrictions on making adoption orders
(1) An adoption order shall not be made in respect of an infant unless the applicant or, in the case of a joint application, one of the applicants—
(a) has attained the age of 25 years and is at least 21 years older than the infant; or
(b) has attained the age of 21 years and is a relative of the infant; or
(c) is the mother or father of the infant.
(2) An adoption order shall not be made in respect of an infant who is a female in favour of a sole applicant who is a male, unless the court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order.
(3) Except as provided by sub-section (2) of section 3, an adoption order shall not be made authorising more than one person to adopt an infant.
(4) Subject to the provisions of section 5, an adoption order shall not be made—
(a) in any case except with the consent of every person or body of persons who is a parent or guardian of the infant or who is liable by virtue of any order or agreement to contribute to the maintenance of such infant;
(b) on the application of one of two spouses, except with the consent of the other spouse.
(5) An adoption order shall not be made in respect of any infant unless—
(a) the applicant and the infant reside in Zambia; and
(b) the infant has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order; and
(c) the applicant has, at least three months before the date of the order, notified the Commissioner of his intention to apply for an adoption order in respect of the infant.
(6) Notwithstanding sub-section (5) an adoption order shall not made in respect of a foreign infant—
(a) unless the infant resides in Zambia and the applicant is ordinarily resident in Zambia;
(b) unless the foreign infant has been continuously in the care and possession of the applicant for at least 12 consecutive months immediately preceding the date of the order;
(c) unless the applicant has at least three months before the period referred to in paragraph (b) notified the Commissioner of his intention to apply for an adoption order in respect of the foreign infant; and
(d) if the foreign infant is in Zambia under a temporary or visiting permit issued under the Immigration and Deportation Act.
[S 4(6) ins by s 3 of Act 24 of 1997.]
(7) Sub-sections (1), (2), (3) and (4) shall apply with the necessary modifications to a foreign infant adopted under sub-section (6).
[S 4(7) ins by s 3 of Act 24 of 1997.]
(1) The court may dispense with any consent required by paragraph (a) of sub-section (4) of section 4 if it is satisfied—
(a) in the case of a parent or guardian of the infant, that he has abandoned, neglected or persistently ill-treated the infant;
(b) in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute;
(c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld.
(2) The court may dispense with the consent of the spouse of an applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving his consent or that the spouses are separated and are living apart and that the separation is likely to be permanent.
(3) The consent of any person to the making of an adoption order in pursuance of an application may be given, either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is to be brought up, without knowing the identity of the applicant for the order, and where consent so given by any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to be unreasonably withheld.
(4) While an application for an adoption order in respect of an infant is pending in any court, any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application shall not be entitled, except with the leave of the court, to remove the infant from the care and possession of the applicant, and in considering whether to grant or refuse such leave the court shall have regard to the welfare of the infant.
6. Evidence of consent of parent or guardian
(1) Where any person whose consent to the making of an adoption order is required by paragraph (a) of sub-section (4) of section 4 does not attend in the proceedings for the purpose of giving such consent, then, subject to the provisions of sub-section (2), a document signifying his consent to the making of such an order shall, if the person in whose favour the order is to be made is named in the document or, where the identity of that person is not known to the consenting party, is distinguished therein in the prescribed manner, be admissible as evidence of such consent, whether executed before or after the commencement of the proceedings.
(2) Where any document mentioned in sub-section (1) is attested by a magistrate in the case of a document executed within Zambia, or is attested in accordance with the provisions of the Authentication of Documents Act in the case of a document executed outside Zambia, such document shall be admissible as provided in sub-section (1) without further proof of the signature of the person by whom it is executed, and for the purposes of this sub-section, a document purporting to be attested as aforesaid shall be deemed to be so attested, and to be executed and attested on the date and at the place specified therein, unless the contrary is proved.
(3) Any License issued under the provisions of section 40 of the Adoption Act, 1950, or section 23 of the Adoption of Children (Northern Ireland) Act, 1950, of the United Kingdom, authorising the care and possession of an infant to be transferred to any British subject resident in Zambia shall be admissible as evidence of the consent of the parent or guardian of the infant to an adoption order being made under the provisions of this Act in respect of such infant and such British subject.
(4) If the consent of the parent or guardian to an adoption has been dispensed with by the Licensing Authority under section 40(2) of the Adoption Act, 1950, or under section 23(3) of the Adoption of Children (Northern Ireland) Act, 1950, of the United Kingdom, such consent shall not be required by the court under this Act.
(5) A document signifying the consent of the mother of an infant shall not be admissible under the provisions of this section unless—
(a) the infant is at least six weeks old on the date of the execution of the document; and
(b) the document is attested on that date in accordance with the provisions of sub-section (2).
[S 6 am by Act 32 of 1958.]
7. Functions of court as to adoption orders
(1) The court before making an adoption order shall be satisfied—
(a) that every person whose consent is necessary under the provisions of this Act, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of such adoption order will be permanently to deprive him or her of his or her parental rights;
(b) that the adoption order, if made, will be for the welfare of the infant, due consideration being for this purpose given to the wishes of the infant, having regard to the age and understanding of the infant.
(2) The court in an adoption order may impose such terms and conditions as the court may think fit, and in particular may require the adopter by bond or otherwise to make for the infant such provision, if any, as in the opinion of the court is just and expedient.
(1) Subject to the provisions of this section, the court may, upon any application for an adoption order, postpone the determination of the application and make an interim order giving the custody of the infant to the applicant for a period not exceeding two years by way of a probationary period upon such terms as regards provision for the maintenance and education and supervision of the welfare of the infant and otherwise as the court may think fit.
(2) All such consents as are required to an adoption order shall be necessary to an interim order but subject to a like power on the part of the court to dispense with any such consent.
(3) An interim order shall not be made in any case where the making of an adoption order would be unlawful by virtue of sub-section (5) of section 4.
(4) An interim order shall not be deemed to be an adoption order within the meaning of this Act.
9. Adoption orders in respect of children previously adopted
An adoption order or an interim order may be made in respect of an infant who has already been the subject of an adoption order, whether such order was made under the provisions of this or any other enactment, and, upon any application for such further adoption order, the adopter or adopters under the adoption order last previously made shall, if living, be deemed to be the parent or parents of the infant for all the purposes of this Act.
10. Jurisdiction and procedure
(1) The court having jurisdiction to make adoption orders under this Act shall be the High Court or, at the option of the applicant, but subject to any rules which may be made in that behalf, any Subordinate Court of the first class within the jurisdiction of which either the applicant or the infant resides at the date of the application for the adoption order.
(2) For the purpose of any application under this Act and subject to any rules which may be made in that behalf, the court shall appoint some person or body of persons to act as guardian ad litem of the infant upon the hearing of the application with the duty of safeguarding the interests of the infant before the court.
PART III
REGISTRATION OF ADOPTION ORDERS
(1) The Registrar-General shall maintain at the Office of the Registrar-General a register to be called the Adopted Children Register, in which shall be made such entries as may be directed to be made therein by adoption orders, but no other entries.
(2) A certified copy of any entry in the Adopted Children Register, if purporting to be sealed or stamped with the seal or stamp of the Office of the Registrar-General, shall, without any further or other proof of that entry, be received as evidence of the adoption to which it relates and, where the entry contains a record of the date of the birth or the country of the birth of the adopted person, shall also be received as aforesaid as evidence of that date or country in all respects as if the copy were a certified copy of an entry in the Register of Births.
(3) The Registrar-General shall cause an index of the Adopted Children Register to be made and kept in the Office of the Registrar-General and every person shall be entitled to search such index and to have a certified copy of any entry in such Register in all respects upon, and subject to the same terms, conditions and regulations as to payment of fees or otherwise as are applicable under the provisions of the Births and Deaths Registration Act in respect of searches in registers kept in the Office of the Registrar-General, and in respect of the supply from such office of certified copies of entries in the Registers of Births and Deaths.
(4) The Registrar-General shall, in addition to the Adopted Children Register and the index thereof, keep such other registers and books, and make such entries therein, as may be necessary to record and make traceable the connection between any entry in the Register of Births which has been marked "Adopted" in pursuance of the provisions of this Act, and any corresponding entry in the Adopted Children Register, but the registers and books kept under the provisions of this sub-section shall not be, nor shall any index thereof be, open to public inspection and search, nor, except under an order by the High Court, shall the Registrar-General furnish any person with any information contained in or with any copy or extract from such registers or books.
12. Registrations of adoptions
(1) Every adoption order shall contain a direction to the Registrar-General to make in the Adopted Children Register an entry in the form set out in the Schedule, and, subject to the provisions of sub-section (2), shall specify the particulars to be entered under the headings in columns 2 to 6 of the Schedule.
(2) For the purposes of compliance with the requirements of sub-section (1)—
(a) where the precise date of the infant’s birth is not proved to the satisfaction of the court, the court shall determine the probable date of the infant’s birth and the date so determined shall be specified in the order as the date of birth of the infant;
(b) where the name or surname which the infant is to bear after the adoption differs from his original name or surname, the new name or surname shall be specified in the order instead of the original;
(c) and where the country of birth of the infant is not proved to the satisfaction of the court, the particulars of that country may, notwithstanding anything in sub-section (1), be omitted from the order and from the entry in the Adopted Children Register.
(3) Where upon any application to a court for an adoption order in respect of an infant, not being an infant who has previously been the subject of an adoption order made under the provisions of this Act or of the repealed Act, there is proved to the satisfaction of the court the identity of the infant with a child to whom an entry in the Register of Births relates, any adoption order made in pursuance of such application shall contain a direction to the Registrar-General to cause the entry in the Register of Births to be marked with the word "Adopted".
(4) Where an adoption order is made by a court in respect of an infant who has previously been the subject of an adoption order made under the provisions of this Act or of the repealed Act, the order shall contain a direction to the Registrar-General to cause the previous entry in the Adopted Children Register to be marked with the word "Re-adopted".
(5) Where an adoption order is made by a court, the prescribed officer of the court shall cause the order to be communicated in the prescribed manner to the Registrar-General, and upon receipt of such communication the Registrar-General shall cause compliance to be made with the directions contained in the order both in regard to marking any entry in the Register of Births with the word "Adopted" and in regard to making the appropriate entry in the Adopted Children Register.
13. Amendment of orders and rectification of Registers
(1) The court by which an adoption order has been made under this Act or under the repealed Act may, on the application of the adopter or of the adopted person, amend the order by the correction of any error in the particulars contained therein, and where an adoption order is so amended, the prescribed officer of the court shall cause the amendment to be communicated in the prescribed manner to the Registrar-General and any necessary correction of or addition to the Adopted Children Register shall be made accordingly.
(2) Where an adoption order was made before the commencement of this Act, the power of the court under sub-section (1) shall include power to amend the order—
(a) by the insertion of the country of the adopted person’s birth;
(b) where the order does not specify a precise date as the date of the adopted person’s birth, by the insertion of the date which appears to the court to be the date or probable date of his birth;
and the provisions of sub-section (1) shall have effect accordingly.
(3) The court by which an adoption order has been made under the repealed Act shall, on the application of the adopter or of the adopted person, request the Registrar-General to provide for the registration of the adoption in accordance with section 12, as if this Act had been in force at the time of the said adoption.
(4) Where an adoption order is quashed or an appeal against an adoption order allowed, the court which made the order shall give directions to the Registrar-General to cancel any marking of an entry in the Register of Births and any entry in the Adopted Children Register effected in pursuance of the order.
(5) A copy or extract of an entry in any register, being an entry the marking of which is cancelled under the provisions of this section, shall be deemed to be an accurate copy if and only if both the marking and the cancellation are omitted therefrom.
PART IV
EFFECT OF ADOPTION ORDERS
14. Rights and duties of parents and capacity to marry
(1) Upon an adoption order being made, all rights, duties, obligations and liabilities of the parents or guardians of the infant in relation to the future custody, maintenance and education of the infant, including all rights to appoint a guardian and to consent or give notice of dissent to marriage, shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as if the infant were a child born to the adopter in lawful wedlock, and in respect of the matters aforesaid the infant shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock.
(2) In any case where two spouses are the adopters, the spouses shall, in respect of the matters mentioned in sub-section (1) and for the purpose of the jurisdiction of any court to make orders as to the custody and maintenance of and right of access to children, stand to each other and to the infant in the same relation as they would have stood if they had been the lawful father and mother of the infant and the infant shall stand to them respectively in the same relation as to a lawful father and mother respectively.
(3) For the purpose of the law relating to marriage, an adopter and the person whom he has been authorised to adopt under an adoption order shall be deemed to be within the prohibited degrees of consanguinity, and the provisions of this sub-section shall continue to have effect notwithstanding that some other person other than the adopter is authorised by a subsequent order to adopt the same infant.
15. Intestacies, wills and settlements
(1) Where, at any time after the making of an adoption order, the adopter or the adopted person or any other person dies intestate in respect of any real or personal property other than property subject to an entailed interest under a disposition made before the date of the adoption order, that property shall devolve in all respects as if the adopted person were the child of the adopter born in lawful wedlock and were not the child of any other person.
(2) In any disposition of real or personal property made, whether by instrument inter vivos or by will, including codicil, after the date of an adoption order—
(a) any reference, whether express or implied, to the child or children of the adopter shall, unless the contrary intention appears, be construed as, or as including, a reference to the adopted person;
(b) any reference, whether express or implied, to the child or children of the adopted person’s natural parents or either of them shall, unless the contrary intention appears, be construed as not being, or as not including, a reference to the adopted person; and
(c) any reference, whether express or implied, to a person related to the adopted person in any degree shall, unless the contrary intention appears, be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other person.
(3) Where under any disposition any real or personal property or any interest in any such property is limited, whether subject to any preceding limitation or charge or not, in such a way that it would, apart from this section, devolve as nearly as the law permits, along with a dignity or title of honour, then, whether or not the disposition contains an express reference to the dignity or title of honour, and whether or not the property or some interest in the property may in some event become severed therefrom, nothing in this section shall operate to sever the property or any interest therein from the dignity or title of honour, but the property or interest shall devolve in all respects as if this section had not been enacted.
16. Industrial insurance, etc.
(1) For the purposes of any enactments for the time being in force relating to friendly societies, collecting societies and industrial insurance companies which enable such societies and companies to insure money to be paid for funeral expenses and which restrict the persons to whom money may be paid on the death of a child under the age of ten, an adopter shall be deemed to be the parent of the infant whom he is authorised to adopt under an adoption order.
(2) Where, before the making of an adoption order in respect of an infant, any such insurance as is mentioned in sub-section (1) has been effected by the natural parent of the infant, the rights and liabilities under the policy shall by virtue of the adoption order be transferred to the adopter, and the adopter shall, for the purposes of the enactments mentioned in sub-section (1), be treated as the person who took out the policy.
(1) Where an adoption order is made in respect of an infant who is illegitimate, then, subject to the provisions of this section, any affiliation order in force with respect to the infant, and any agreement whereby the father of the infant has undertaken to make payments specifically for the benefit of the infant, shall cease to have effect, but without prejudice to the recovery of any arrears which are due under the order or agreement at the date of the adoption order.
(2) Where an infant to whom any such order or agreement as is mentioned in sub-section (1) relates is adopted by his mother, and the mother is a single woman, the order or agreement shall not cease to have effect by virtue of sub-section (1) upon the making of the adoption order, but shall cease to have effect if she subsequently marries.
(3) Where an adoption order is made in respect of an infant committed to the care of a fit person by an order in force under the provisions of the Juveniles Act, such last-mentioned order shall cease to have effect.
PART V
ADOPTION SOCIETIES
18. Restriction on making arrangements for adoption
(1) It shall not be lawful for any body of persons to make any arrangements for the adoption of an infant unless that body is a registered adoption society.
(2) If any person takes part in the management or control of a body of persons which exists wholly or partly for the purpose of making arrangements for the adoption of infants, and which is not a registered adoption society, he shall be guilty of an offence.
(3) In any proceedings under this section proof of things done or of words written, spoken or published, whether or not in the presence of any party to the proceedings, by any person taking part in the management or control of a body of persons or in making arrangements for the adoption of infants on behalf of that body shall be admissible as evidence of the purpose for which such body of persons exists.
19. Registration of adoption societies
(1) Subject to the following provisions of this part, where application is made in the prescribed manner by or on behalf of an adoption society to the Commissioner and there is furnished therewith the prescribed information relating to the activities of the society, the Commissioner shall register the society under the provisions of this part.
(2) The Commissioner may refuse to register an adoption society under this part if it appears—
(a) that the activities of the society are not controlled by a committee of members of the society who are responsible to the members of the society;
(b) that any person proposed to be employed, or employed, by the society for the purpose of making any arrangements for the adoption of infants on behalf of the society is not a fit and proper person to be so employed;
(c) that the number of competent persons proposed to be employed, or employed, by the society for the purpose aforesaid is, in the opinion of the Commissioner, insufficient having regard to the extent of the activities of the society in connection with that purpose; or
(d) that any person taking part in the management or control of the society or any member of the society has been convicted of an offence under the provisions of this Act or under the provisions of section 49 of the Juveniles Act.
(3) The Commissioner may at any time cancel the registration of an adoption society on any grounds which would entitle him to refuse an application for the registration of the society.
20. Procedure and right of appeal
(1) Where the Commissioner proposes to refuse an application for registration made to him by or on behalf of an adoption society or to cancel the registration of an adoption society, the Commissioner shall give to the society not less than 14 days’ notice in writing of his intention so to do.
(2) Every notice mentioned in sub-section (1) shall state the grounds on which the Commissioner intends to refuse the application or to cancel the registration, as the case may be, and shall contain an intimation that, if within 14 days after the receipt of the notice the society inform the Commissioner in writing that they desire so to do, the Commissioner will, before refusing the application or cancelling the registration, as the case may be, give to the society an opportunity of causing representations to be made to the Commissioner by or on behalf of the society.
(3) If the Commissioner, after giving to the society an opportunity of causing such representations as are mentioned in sub-section (2) to be made, decides to refuse the application for registration or to cancel the registration, as the case may be, he shall give to the society notice in writing of his decision.
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