Law of Adoption In Sri Lanka

2018/L/8237

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 Question

Assume that second year students of the Faculty of Law are organising a legal awareness program to educate
public on the law governing adoption within Sri Lanka. You have been assigned to prepare a booklet to be
distributed among the public on the following.

• Legal requirements to be fulfilled for a valid adoption of a child under General Law and Kandyan
Law in Sri Lanka.

• Any other frequently asked questions (FAQs) on child adoption.

• Legal procedure of adopting a child in Sri Lanka.

• Improvements that Law students propose to the existing law governing adoption in Sri Lanka.

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 Table of Content

01. Introduction

02. Legal formalities to be fulfilled for a valid adoption of a child under General Law

03. Adoption by foreigners

04. Legal formalities to be fulfilled for a valid adoption of a child under Kandyan Law

05. Frequently asked FAQs on Child Adoption

06. Improvements

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Introduction

Adoption is the process by which an adult formally becomes the guardian of a child and incurs all the rights,
responsibilities, duties and obligations of a parent. As well as Adoption is a process that affects the artificial
relationship between non-biologically-connected parents and children. This is meant to bring about a lasting
change of status and thus requires social recognition by either legal or religious sanction. This process
permanently transfers from the biological parents all privileges and duties along with connections of
filiation. Nevertheless, this law of Adoption has embraced from English Law. Although earlier adoption is
only designed to foster the child. The essence and purpose of adoption has been changed after the enactment
of the adoption of children act of 1926. Sri Lanka has also enacted the Adoption of Children Ordinance of
1941, which raises concern of legal adoption procedures. This text will be discussed the legal formalities
to be fulfilled when adopt a child under General and Kandyan law, , legal process of adopting a child in Sri
Lanka and improvements to the existing law which is utterly should be improved.

Legal formalities to be fulfilled for a valid adoption of a child under General Law

In Sri Lanka, the Adoption of Children Ordinance of

1941 governs the procedures for adoption. During the
adoption process, each provision of the Ordinance
must be followed by adopters and each provision has
the valuable rationale and reference to it and also
complies with international standards. It has the
influence of the English Adoption Act of 1926. This Ordinance ( Adoption of Children of 1941) applies in
addition to any provisions of any written or other law relating to the adoption of children by persons subject
to the Thesawalamai Law or the Kandyan Law. i

By making an application in the District Court where the adopter resides, any person in Sri Lanka may
adopt a child. While in this section there is an uncertainty, the District Court, which has jurisdiction over
this matter, specifically uses this section in the best interests of the child. The uncertainty is thus eliminated.
However there are some restrictions can be seen in this law related to Adoption in Sri Lanka. Those
restrictions as follows,

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1. Applicant should be 25 years or older and at least 21 years older than the adoptee. However, the court
may make an adoption order even if applicant is less than 21 years older than adoptee provided the adoptee
is
• a direct descendant of applicant or
• a brother or sister of applicant (full or half blood) or a descendant of any such brother or sister or
• the child of the wife or husband, as the case may be, of the applicant by another father or motherii

There for the age gap between the applicant and the child to be adopted will not be applicable when a
brother, sister or aunt or uncle or a step parent make an application to adopt their relative.

2. If the sole applicant is male and the adoptee female, no adoption order shall be made unless there are
special circumstances justifying such an order.iii
Nevertheless the court can make such an order if the court is satisfied that there are special circumstances
which justify the making of an adoption order. Although a court exercising its discretion granted to it may
permit a putative father. iv

i.e. an unmarried natural father of a child born outside lawful marriage who accepts the paternity of the
child, to adopt his daughter as the sole adopter.

3. An adoption order shall not be made upon the application of one of two spouses without the consent of
the otherv.
Therefore married couple will not be able to adopt a child without
the consent of either of parties. However the marriage has dissolved
or either of the spouse can not be found or in the condition of
unsound mind the court will held to dispense with the requirement
of the consent. Joint adoption can be made only if applicants are in
a lawful wedlock. If the marriage between adoptive parents have
been recognised as null and void consequently the adoption order will also be invalid. vi

4. An adoption order shall not be made without the consent of the parent or guardian of the adoptee and in
respect of a child over the age of 10 years without the consent of such child.vii
The consent of the child who is over the age of 10 years has to record by the court before the adoption
order is made. However this may be argued that

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5. An adoption order shall be made in favour of any applicant who is not a citizen of Sri Lanka and not
domiciled or resident in Sri Lanka only if no other person who is a citizen of Sri Lanka and is domiciled
and resident in Sri Lanka has applied to adopt the child.viii
Even if the adoptive child has given his/ her consent to the adoptive parents, court as the upper guardian
may find that the adoption order is not in the welfare of the child it will not be granted to the applicants.

Adoption by foreigners

The Amendment which has made to the

Adoption of Children Ordinance No 24 of
1941 in 1992 enabled foreigners to adopt Sri
Lankan children. Accordingly foreigners
desiring to adopt Sri Lankan Children have to
forward their joint application to the Department of Probation and Child care Services. The application
must be included with Home Study Report which illustrates the mental health, social, financial and religious
environment of the applicants and their suitability to adopt a child. The application along with the Home
study Report will be sent to the Sri Lanka Overseas Mission for authentication and transmission to the
Department of Probation and Child Care Services in Sri Lank by the respective adoptive agencies of the
applicants. And it also should attach with a formal letter which explicit the preference of child to be adopted
by the applicants. ix

After commissioner assuring that the applicants are suitable to adopt a child, the commissioner will grant a
letter with intimating the decision to the adoption agency. Only after receiving the letter, applicants will
come to Sri Lanka for the interview which is held by Department of Probation and Child Care Services.

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Legal formalities to be fulfilled for a valid adoption of a child under Kandyan Law

Even though common law principles are remaining in

Sri Lanka, it may also have special adoption
regulations. During the process of adoption, certain
functional standards are satisfied under the Kandyan
Law. As the adopters and the child must be the same
caste ( Loku Banda v. Dehigama Kumarihami
(1904)), the adopter must be able to prove the child
as his own when beginning the process by ensuring
the right of succession, the adopter must publish his expectation, and the publication must not be ambiguous.

Adult adoption is also valid under Kandyan law for the full purpose of ensuring rights of succession. Under
the Kandyan Law Ordinance or under the Adoption of Children Ordinance, a Kandyan Sinhalese can adopt
a child. A duly adopted child will be treated as a legitimate child under Kandyan law.

For a valid adoption under Kandyan law it has to be evidenced by an instrument in written with the consent
of the person adopted expressed in the instrument and signed by both the adopter and the adopted in the
presence of a District Judge or a licensed notary and two witnesses. x If the person adopted is a minor the
consent for adoption may be given by the parent and failing him by and failing him by a person appointed
by the court to sign the instrument giving consent on behalf of the minor child. xi

Under the Kandyan Law, there is a special feature that distinguishes it from other Sri Lankan laws where
an adopted child can receive succession rights from adopted parents and natural parents as well. According
to the intestate succession right of the adopted child, however, adopted parents may not succeed. These are
the notable features in the area of adoption under the Kandyan Law.xii

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Frequently asked FAQs on Child Adoption

• Can an adult be legally adopted?

As to answer this question, according to the

General law only children up to the age of 14
can be adopted which means that adults are
incapable of being adopted. But in the Kandyan Law adults can be adopted since the Kandyan Law
Ordinance has mentioned that ‘person’ rather than ‘minor’

• Can single parent adopt a child

The unmarried person were not permitted to adopt a child in the past
as the male figure was always the primary earner of the household
while the unemployed female figure was taking care of all the
household related work. In this scenario it is essential to have two
parent guardianship for the vigorous rear of a child.

Nevertheless, in modern age both male and female are equally trained, educated and employed,
hitherto they are capable of bringing up a child independently without being married. On that
account the legislation must be amended in order to allow unmarried individual the right to adopt,
provided that they need the considerable requirements.

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 • Can foreign gay couple adopt a child ?

Although in theory of Sri Lankan law has not explicitly

prohibit a same sex couple ( foreign, as same sex-
union is not legal in Sri Lanka) from adopting a child,
however in practice such applicants would not accept
homosexuality and considered it as illegal. xiii

Legal procedure of adopting a Child in Sri Lanka

As the superior guardian, the District Court has the authority to

render an adoption decision. Upon receipt of an adoption
application by the District Court, the Court will appoint a
probation officer from the Department of Probation and Child Care
Service as a guardian to protect the interests of the child and the
Court will take the child's welfare into account. The Court can also
delay the order for adoption and make an interim order for the
applicant to be in custody of the child for a probationary period of
two years. For all calling and investigation dates, all parties to the adoption must be present in
court. The Court can assign the adopter's surname to the child with the adoption order.
A number of additional conditions must be satisfied by foreign citizens requesting adoption from
Sri Lanka.xiv
• A social report must be submitted to the District Court through the relevant embassy.
• Applicant must be married (no length stipulated).
• Applicants with up to two children may apply; however, preference will be given to couples
with no children.
• There is no specific income requirement; however, the financial position of the prospective
adoptive family will be assessed by the DPCSS.
• A criminal record check must be provided.

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 • Both the prospective adoptive parents must be present at the District Court of Sri Lanka
for court proceedings and to accept placement of the child.

Improvements

While many improvements were made to the Adoption of

Children Ordinance since its implementation, several gaps
and inconsistencies remain throughout the Ordinance. To
patch up the inconsistencies and keep up with the changes
and developments in the modern world, yet another reform might be required.

Article 7 of the Universal Declaration of Human Rights declares that "All are equal before the law
and are entitled to equal protection of the law without any discrimination." Article 12 of the Sri
Lankan Constitution is also assigned to the right to equality. However, the common law is
overridden by some special laws in force in Sri Lanka, ultimately disrupting.xv

For an instance, if both the petitioners and the adopted child are governed by the Kandyan law,
child can claim both the properties of birth and adoptive parents. Conversely, Muslims Law does
not allow an adopted child to claim their adoptive parents properties. At the same time under the
common law the adopted child loses the right to claim the properties if birth parents. So special
laws in Sri Lanka seems to be outdated and it is essential to amend those laws to prevent risks in
adopted children’s future. xvi

Sri Lankan law which was based on ancient European law has outdated and it should be amended
in order to allow adopt adult children. However England has amended their laws for several times
and Sri Lanka law seems to be stagnated. Since age of majority ordinance recognises that human
being under the age of 18 as a minor, also the adoptive age of a child should be adapted. xvii

As well as there is a principle that the laws of Sri Lanka do not allow couples with the capability
to conceive a child of their own to adopt a child by choice. In fact the law must allow adopt a child,

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to couples despite of ability to conceive a child of their own, who are with the pure intention to
bringing up of a helpless child.

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Endnotes

i Child Adoption In Sri Lanka, < https://roar.media/english/life/in-the-know/child-adoption-in-sri-lanka-a-

snapshot/amp> accessed on 11th November 2020
ii Adoption of Children Ordinance No. 24 of 1941
iii S.W.E.Goonesekere, Parent and Child, p.365
iv Ibid
v Ibid
vi Ibid
vii Ibid
viii Ibid
ix S.W.F.Goonersekere, Parent and Child,p.371
x Kandyan Law Ordinance
xi An Analysis of the Legal Parenthood Through Adoption In Sri Lanka

<ttp://www.lawmanlanka.com/blog/Private%20and%20Comparative%20Law/46>
xii Ibid
xiii The ins and out of Adoption : A Tribute To Adoptive Mothers, < http://www.pulse.lk/everythingelse/ins-outs-

adoption-tribute-adoptive-mothers/> accessed on 11th November 2020

xiv The Where and how of adoptions in Sri Lanka, < http://life.dailymirror.lk/article/parenting/The-where-and-how-

of-adoptions-in-Sri-Lanka/47/16510> accessed on 11th November 2020

xv Child Adoption In Sri Lanka, < https://www.google.com/amp/s/roar.media/english/life/in-the-know/child-

adoption-in-sri-lanka-a-snapshot/amp> accessed on 11th November 2020

xvi Ibid
xvii Ibid

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List of References

Case law

Milton v. Baby Nona (1985) 1 Sri L.R .212

Legislation

Adoption of Children Ordinance No. 24 of 1941

Adoption of Children Act 1926
Kandyan Law Ordinance No 25 of 1944

Books

Savitri Goonesekere, Sri Lanka Law of Parent and Child (first published in 1987)
Stephen Cretney, Elements of Family Law( first published in 1987)

Articles

Justice Saleem Marsoof P.C, ‘Insights into Sri Lankan Family Law’

Online articles and webistes

The where and how of adoptions in Sri Lanka

<http://life.dailymirror.lk/article/parenting/Thewhere-and-how-of-adoptions-in-
SriLanka/47/16510> Accessed on 24th November 2020
Child Adoption in Sri Lanka- A Snapshot,<https://roar.media/english/life/in-the-
know/childadoption-in-sri-lanka-a-snapshot> Accessed on 10th November 2020
An Analysis of the Legal Parenthood Through Adoption in Sri Lanka<
http://lawmanlanka.com/blog/Private%20and%20Comparative%20Law/46>Accessed on 25th
October 2020

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