31.12.20

‘Adopting’ a Different Approach to Having Children

James-Erle Kirkland
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‘Adopting’ a Different Approach to Having Children

The option to adopt a child is a principal means of expanding one’s family. Many are unsure, however, of the legal framework that underpins adoption. In this article, we will look at the legal landscape in Jamaica surrounding adoption.

Adoption is the process whereby the parental rights and responsibilities with respect to a child are transferred from biological parents, or the state, to adoptive parents. In Jamaica, the process is governed by the Children (Adoption of) Act (the Act). The statute requires that any person who wishes to adopt obtain either an Order or a License from the Court.

The statute also established the Adoption Board for the purpose of processing adoption applications. The application is made through the Child Protection and Family Services Agency (CPFSA), who will then conduct interviews and investigations to determine whether the applicant is suitable to adopt. An applicant may be required to provide affidavits to swear to the suitability of their home environment for the adoption of a child.

Requirements to Adopt

A person who wishes to adopt must be:

  • A citizen of Jamaica or one of the commonwealth countries listed in the Schedule of the Act; and
  • At least 25 years old, except where the applicant is a relative of the child, in which case, at least 18 years old;

The Act further imposes restrictions on a single male adopting a female child. The Court will not grant an order for this type of adoption unless the applicant is able to satisfy the Court that there are special circumstances which justify it.

Generally, adoption requires the written consent of the child’s biological parents. The Court will, however, forego the need for consent where:

  1. Both parents are dead;
  2. The child is a ward of the state;
  3. Despite reasonable attempts, the parents cannot be found;
  4. The parents are incapable of giving consent due to mental illness or other disability; or
  5. The parents are withholding consent unreasonably.

Once the application has been processed and approved by the Adoption Board, the law requires that an Application be put before the Court for an adoption Order to be made. Where the adoptive parents are citizens of one of the prescribed foreign countries, the Act also allows for them to obtain a license from the Court to take the child abroad in order to have the adoption finalized.

Importantly, if the Adoption Board refuses an application, the Act allows the Applicant to appeal the decision of the Board before a Judge in Chambers. An Applicant may retain an Attorney-at-Law for this purpose.

Legal Effects of Adoption 

Once adopted, the law views the child as though he was born to the adoptive parents. This has certain legal implications. For example, where an adoptive parent dies without leaving a Will, the adopted child is entitled to inherit from the adoptive parent’s estate. Where the adoptive parent dies having left a Will, any reference to “child” or “children” will be interpreted to include the adopted child or children, unless there is clear evidence to the contrary. Conversely, an adopted child is not, without more, able to inherit from the estate of his biological parents. Because the biological parents’ legal parental rights were terminated, the child has no automatic legal rights to inherit from their estate. However, a birth parent can choose to include any named person as a beneficiary in their Will, including a biological child who was adopted into another family. 

Another implication is the adoptive parent’s duty to provide maintenance. The Maintenance Act expressly defines “parent” to include adoptive parents; therefore, a party may institute legal proceedings to obtain an order requiring adoptive parents to provide maintenance for adopted children.
Adoption is an important means of family expansion. The process is largely administrative and is handled by the Board and the CPFSA as the Act expressly prohibits any person or body of persons from taking part in arranging an adoption for gain or reward. Provided they do not accept gain or reward, lawyers are able to assist, where necessary.

James-Erle Kirkland is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. James-Erle may be contacted via james-erle.kirkland@mfg.com.jm or you can visit the firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.