Institute of National

Public

Administration

2ND YEAR FIRST SEMESTER. ASSIGNMENT 2.

PROGRAM OF STUDY: BACHELOR OF LAWS

COURSE: FAMILY LAW

COURSE CODE: LLB2010.

LECTURER: Ms. E. CHAAMBWA.

STUDENT: EVARISTO PHIRI.

STUDENT NUMBER: 29005823.

DUE DATE: 19/05/2023.

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 THE EFFECTS OF ADOPTION ORDERS TO THE RIGHTS OF BIOLOGICAL AND
ADOPTIVE PARENTS: AND THE LAW THAT GOVERNS THE STATUS OF
CHILDREN BORN OUT OF WEDLOCK.

Table of Contents
Introduction. ................................................................................................................................................. 3
Effects Regarding Rights of Biological Parents.............................................................................................. 3
(i) Parental rights; .................................................................................................................................. 3
(ii) Rights to child custody; ................................................................................................................. 3
(iii) Legal rights; ................................................................................................................................... 4
(iv) Rights to child maintenance; ........................................................................................................ 4
(v) Rights to give consent; .................................................................................................................. 4
(vi) Rights with regard to inheritance of the child’s estate; ............................................................... 4
Effects regarding rights of Adoptive Parents. ............................................................................................... 4
(i) Parental rights; .................................................................................................................................. 4
(ii) Rights to child custody; ................................................................................................................. 4
(iii) Legal rights; ................................................................................................................................... 4
(iv) Rights to child maintenance; ........................................................................................................ 4
(v) Rights to inheritance; .................................................................................................................... 4
(vi) Right to give consent; in................................................................................................................ 5
The law that governs the status of children born out of wedlock................................................................ 5
The law regarding the right to child custody and guardianship. .............................................................. 5
The law regarding the right to succession and inheritance. ..................................................................... 7
The law regarding the right to child maintenance.................................................................................... 7
Conclusion ..................................................................................................................................................... 8
BIBLIOGRAPHY ………………………………………………………………………………………………………………………………………..9

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Introduction.
This paper aims to explain the effects of adoption orders to the rights of both Biological and
Adoptive Parents; and to discuss the Law that governs the status of children born out of wedlock.

Section 3 (1) of the Adoption Act 1956, Cap 54 of the Laws of Zambia, defines an adoption order
as, ‘the authority which the Court grants to an applicant to adopt an Infant.’ And Section 2 (1) of
the same Act defines an Infant as, ‘any person who has not yet attained the age of twenty-one
years, but not including those who are married.’1

Once the Court has given the applicant the authority to adopt an Infant, the relationship between
Biological Parents and an Infant changes. And the same applies to the relationship between the
applicant, who is the Adoptive Parent and the Infant. The changes with regard to the relationship
are provided for by Section 14 (1) of the Adoption Act. And it reads as follows:

“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.”

The effects of their respective rights are as stated below:

Effects Regarding Rights of Biological Parents.

As stated in Section 14 (1) of Adoption Act, all parental rights of biological Parents are terminated.
This means that biological parents relinquishes of the following rights:

(i) Parental rights; once an adoption order is made, Biological Parents ceases to be Parents
to an Infant who has been adopted.
(ii) Rights to child custody; once an adoption order has been made, biological parents stops
to be physically keeping the Infant. In other words, they cease to live together.

1
Adoption Act 1956, Cap 54 of the Laws of Zambia.

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 (iii) Legal rights; this simply means that birth Parents will no longer exercise legal rights
toward an Infant after an adoption order has been made. This entails that they stop to
sue on behalf of the child and cannot be sued on behalf of the child. In short, they
cannot make any legal decision on behalf of an Infant.
(iv) Rights to child maintenance; once an adoption order has been granted to an applicant,
biological parents cease to provide for the Infant.
(v) Rights to give consent; after and adoption order has been made, biological parents do
not have any right to give consent for the child. For example, when the child reaches
the age to marry, they cannot give consent for the child to enter into marriage contract.
(vi) Rights with regard to inheritance of the child’s estate; according to section 15 (1) of
Adoption Act, after the Court has granted an adoption order, biological parents cannot
inherit any of the properties of the Infant.

Effects regarding rights of Adoptive Parents.

After the Court has made an adoption order, all Parental rights, duties, obligations and liabilities
are vested in the Adoptive Parents. This means that all rights of biological parents towards the
infant are conferred on the adopters. Below is the summary of parental rights conferred on adoptive
parents.

(i) Parental rights; the adoptive Parents becomes legal parents to the infant. The child start
to use the surname of adoptive Parents and the Registrar-General enters the names of
the infant in the Adopted Children Register.2
(ii) Rights to child custody; the adoptive parents begins to live together with the adopted
child.
(iii) Legal rights; adoptive parents assumes legal rights which allows them to sue or get
sued on behalf of the adopted child. This means that the adopters becomes responsible
for the liabilities of the child.
(iv) Rights to child maintenance; it becomes the responsibility of the adoptive parents to
provide all needs for the child.
(v) Rights to inheritance; adoptive parents have the right to inherit the estate of the adopted
child. And the adopted child also has the right to inherit the property of the adopters.

2
Sections 11 & 12 of Adoption Act.

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 (vi) Right to give consent; in events such as marriage where parents need to give consent
for the child to enter into marriage contract, it is the right of adoptive child to do so.

The law that governs the status of children born out of wedlock.
The law that governs the status of Children born out of wedlock is discussed based on the legal
rights of these children. Children born out of wedlock are those whose parents were not married
at the time of conception, birth and thereafter. Such children are also known as illegitimate Infants.

The moral and physical wellbeing of these children is governed by law such as the Legitimacy
Act, Cap 52 of the Laws of Zambia, Affiliation and Maintenance Act, Cap 64 of the Laws of
Zambia, Customary law and International Statutory Instruments such as the United Nation
Convention on Rights of Children and Universal Declaration of Human Rights.

Illegitimate children have rights just like any other child or legitimate children. Their Parents has
the duty of care for the moral and physical wellbeing.3 For example, illegitimate children have the
right to inheritance or succession, the right to custody and guardianship, the right to maintenance,
among others. These rights are considered in details below.

The law regarding the right to child custody and guardianship.

The legal dictionary defines child custody as, “child custody refers to the legal and hands-on
relationship between a Parent and his or her child. It includes the Parent’s right to raise, care for,
and make decision for the child.”4

According to common law, custody and guardianship of illegitimate children was granted to the
Mother. But denied to the Father. In the case of Sadiki v Muteswa HH-249 (2020). HC 3971 of
2019. [2020].5 the court held that it was discriminatory for the child to be denied association with
the Natural Father. The Father was responsible for maintenance and could visit the child once in a
while. Custody would only be given to the father in circumstances were he could prove that the
Mother was not fit to be in custody of the child. This was illustrated in the case of Lafun v Lafun

3
Abrahams and Gross, “children born out of wedlock: Rights of biological Father”, 2020, www.golegal.co.za
4
www.https://legaldictionary.net/child-custody/
5
Sadiki v Muteswa HH-249 (2020). HC 3971 of 2019. [2020].

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(1967) NMLR page 401.6 The court granted custody to the Father and refused the Mother to visit
the child due to her moral depravity.

But according to modern law, the decision to grant custody and guardianship is based in the best
interest of the child. The court may grant custody to mother, father or both as joint custody or to
any close relative. For example, Article 3 (1) of Convention on the rights of children provides that:
“In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.”7 And Article 25 of Universal Declaration of Human Rights
provides that all children born in or out of wedlock shall enjoy the same social protection. No child
should be discriminated based on birth, parents, race…” This principle of modern law was applied
in the case of Rohanna Myra Debrah Peterson v Roland Homan (HPF of 2019) ZMHC 325
[2020].8 The Petitioner and Respondent had an illegitimate child together. The Mother (Petitioner)
was in custody of the child and took care of him and provided education till he was seventeen
years. The respondent (Father) was not in touch with the child and did not provide anything for
him. The Mother applied for child custody and for the son to start using her surname. The
respondent did not object. The Court applied Section 14 (1) & (2) of the Legitimacy Act 1965,
Cap 52 of the Laws of Zambia. For easy reference the Act provides that:

“ (1) The High Court may, upon the application of either parent of an illegitimate infant, make
such order as it may think fit relating to the custody of such infant and the right of access thereto
of either parent.

(2) Where, upon the hearing of an application under this section, the custody of an illegitimate
infant is in question, the Court, in deciding that question, shall regard the welfare of such infant as
the first and paramount consideration and shall not take into consideration whether from any other
point of view the claim of the father in respect of such custody is superior to that of the mother, or
the claim of the mother is superior to that of the father. ”

The applicant was granted formal sole child custody and parental responsibility of the Infant.

6
Lafun v Lafun (1967) NMLR page 401.
7
UN convention on the rights of children 1989.
8
Rohanna Myra Debrah Peterson v Roland Homan (HPF of 2019) ZMHC 325 [2020].

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The principle of best interest for the child was also applied in a similar case of Owuma v Ogbodo
(1976) 2 FNR page 208. 9The appellant and respondent had a child out of wedlock. The child was
in the custody of the appellant (father). The appellant had paid compensation to the parents of the
respondent according to their customary law; and he educated the infant up to secondary school.
The Area Court gave formal custody to the Father. The respondent appealed to upper court which
reversed the decision of the Area Court. The Father appealed and the Court of appeal held that in
the best interest of the child, the Father could not be denied custody he took was able to provide
for the child and he paid compensation in accordance with customary law.

The law regarding the right to succession and inheritance.

At common law, children born out of wedlock could only inherit property from their Mothers and
not from their Father. Modern law has abolished certain common law practices. For example, in
the United States of America. Section 12 of Illinois probate Act which only allowed illegitimate
to inherit their Mother’s property, but denied them from inheriting their Father’s property was
abolished. In the case of Trimble v Gordon 4430. U. S. 762. (1977).10 the petitioner was an
illegitimate child to Jessie Trimble and Sherman Gordon. The Father had entered a paternity order
as a natural Father to the child. The Father was murdered and he left no will. The child challenged
the provision of section 12 of Illinois Probate Act which prevented her from inheriting her Father’s
property. The Supreme Court of U. S. A held that the provision was unconstitutional and in
violation of the equal protection clause of the 14th amendment Act.

The law regarding the right to child maintenance.

Section 7 of the Affiliation and maintenance of children Act provides that the Mother to an
illegitimate child can make an application for the Father to make payment for child maintenance.
However, in Zambia, maintenance of illegitimate children is dominantly governed by customary
law. Tribes such as Bemba which belong to matrilineal cultural beliefs that children belong to
Mothers has contributed to the increasing number of natural Fathers who neglect their illegitimate
children in terms of financial support and custody.

9
Owuma v Ogbodo (1976) 2 FNR page 208.
10
Trimble v Gordon 4430. U. S. 762. (1977).

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Conclusion
The law that governs the status of children born out of wedlock is useful in Zambia. The challenge
is that most of it is in International Instruments and need to be domesticated so that it can have
more effect in domestic courts. Otherwise, the available law pays less attention on the welfare of
illegitimate children. For example, the provision of section 8 & 9 of the Affiliation and
Maintenance of Children Act, Cap 64 of the Laws of Zambia is concerned with the maintenance
of children after divorce, nullity or separation of the parties to a Marriage contract. And section 13
(1) & (2) of the Legitimacy Act provides that an illegitimate child can succeed the property of the
Mother and vice versa. It does not address the issue of the child inheriting the property of the
Father or the Father succeeding the property of the child. Most illegitimate children only inherit
the property of their Father at will or acceptance of the Father. Most Fathers deny responsibility
from conception or birth of the child.

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 BIBLIOGRAPHY.
Journal Articles

Abrahams and Gross, “children born out of wedlock: Rights of biological Father”, 2020,
www.golegal.co.za

www.https://legaldictionary.net/child-custody/

Cases

Lafun v Lafun (1967) NMLR page 401.

Owuma v Ogbodo (1976) 2 FNR page 208.

Rohanna Myra Debrah Peterson v Roland Homan (HPF of 2019) ZMHC 325 [2020].

Sadiki v Muteswa HH-249 (2020). HC 3971 of 2019. [2020].

Trimble v Gordon 4430. U. S. 762. (1977).

Statutes

Adoption Act 1956, Cap 54 of the Laws of Zambia.

Affiliation and Maintenance of Children Act, Cap 64 of the Laws of Zambia.

Legitimacy Act 1965, Cap 52 of the Laws of Zambia.

Universal Declaration of Human Rights 1948.

UN convention on the rights of children 1989.