14 February 2017

Malawi: How Madonna Managed to Beat the Law of Adoption

Photo: Raising Malawi
Madonna in Malawi (file photo).
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Perhaps you are a bit uneasy about high profile adoptions of African children by international celebrities? Perhaps you’ve read about their generous donations to special causes that seem to smooth the way for adoptions and wonder whether the welfare of the children involved is a serious consideration.

Certainly I have felt misgivings along these lines and so, when news broke that singer Madonna had adopted twin girls from Malawi earlier this month, it seemed a good time to find out what those courts say about inter-country adoptions.

Madonna, who has two biological children now aged 20 and 15, has starred in several landmark Malawian adoption judgments. In fact I found five such decisions.

Her first adoption involved a two-stage process. In 2006 the court granted an 18-month interim order during which the child, David Banda, was allowed to stay with the adoptive parents (Madonna being married at that time). However, a social welfare agency was to ‘oversee the settlement of the infant’ and report to Malawi’s Ministry of Women and Child Development and to the court ‘at least twice’ during that period.

In 2008, at the end of the trial period, it was back to court where Judge Kenyatta Nyirenda (then a High Court judge but now the Chief Justice) gave a detailed decision explaining why the adoption should be made permanent.

It might have seemed from his judgment that the vexed question of inter-country adoptions of Malawian children had been resolved. But not so. In 2009, when Madonna applied to adopt a second child, Mercy James, High Court judge Esme Chombo turned her down, basing her decision on two main grounds. First, the definition of ‘residence’: the legislation said no-one who ‘is not resident in Malawi’ could adopt a Malawian child. Clearly, said the judge, the ‘petitioner’ (Madonna), who had ‘jetted into the country during the weekend just days prior to the hearing of this application’ could not be said to be ‘resident’.

The judge also expressed concern that without the ‘residence’ check, uncontrolled inter-country adoptions could ‘actually facilitate trafficking of children’: ‘Anyone could come to Malawi and quickly arrange for an adoption that might have grave consequences on the very children that the law seeks to protect’.

‘The issue of residence, I find, is the key upon which the question of adoption rests and it is the very bedrock of protection that our children need; it must therefore not be tampered with.’

The second problem was the child’s welfare. Clearly there were ‘irreconcilable differences’ between Malawi and ‘what the petitioner can provide for the infant’. But inter-country adoptions should be the last resort, and the child had already been rescued from the poverty of her home circumstances and placed at an orphanage that was willing to go on looking after her.

Naturally, Madonna appealed. Just two months later three judges of the Supreme Court of Appeal approved the adoption. In doing so the court displayed what looks to me like some fancy footwork to deal with the ‘resident’ question. Madonna was ‘present’ in Malawi ‘not by chance but by design’. She ‘has plans to travel to Malawi frequently with her adopted children’. She has a ‘targeted long term presence’ in connection with her charity work in Malawi. ‘It is clear that the evidence in the court record establishes that (Madonna) was at the time of this application resident in Malawi.’ She was ‘not in the country by chance or as a mere sojourner.’

The appeal judges also disagreed with the High Court that inter-country adoption should be a last resort. Since no-one had come forward to adopt her, the child could stay on the orphanage ‘and have no family life at all’, or grow up with the family life that this adoption promised.

The judgment might have delivered a fairy-tale ending but it was less satisfactory at a legal level: after this decision the law’s ‘residence’ requirement no longer represented any serious threshold test for adoption and could hardly be said to provide any measure of protection against dubious adoptions.

Fast forward some seven years, to the latest adoption, this time of twin girls whose mother died within a week of their birth, and whose father left their village to re-marry, without making arrangements for the maintenance of the twins or their five siblings.

In her decision on the adoptions, we find presiding judge Fiona Mwale reciting the standard for ‘residence’ established by the Appeal Court: it was defined ‘not by the length of stay in a country, but by establishing a presence by design and not by chance’. And, added the judge, if Madonna had satisfied the Supreme Court of Appeal that she was ‘resident’ in Malawi for the purpose of an earlier successful adoption, the High Court – faced with the same evidence and facts – was obliged to find that she satisfied the requirements in the 2017 case as well.

Mwale, who has presided in other unrelated adoption matters, has put together a list of nine ‘non-exhaustive factors’ that she consults in such cases to serve as guidelines on the question of the best interests of a child. In the latest Madonna adoption application she ran through the list, concluding that on each point the proposed adoption was in the best interests of the children.

Would staying on in the orphanage be in their best interests? Probably not. ‘Government has been unable to support the extended family in providing care for the infants.’ They had been in institutional care since birth and though they were thriving, ‘institutional care can never be a substitute for family care’.

Next question: their health and safety and an absence of domestic violence in the proposed home. No problem. The reports on Madonna’s household showed no ‘immediate risk of criminal elements jeopardising the care and welfare’ of the children. Their physical safety would also be ensured – there were no ‘hazardous water features on site, and all potential risks such as fire, electrical or chemical hazards are secured out of reach of children’.

The court wanted assurance that the children would be given ‘care and guidance’ to develop into self-sufficient adults. The judge said during the hearing she ‘examined the petitioner at length on her motives for adoption and her philosophy in child rearing’ in order to make sure she understood that ‘the needs of the infants must always be placed above her own’. Again, the court was impressed by the answers, with the petitioner ‘even thinking forward’ to a time when the children could contribute to the hospital facilities that she is constructing in Malawi, ‘should they be so minded’.

The judge noted, deadpan, that ‘one of her other adopted children has already expressed the desire to become President of Malawi someday’. The twins would keep their Malawian birth names and the adoptive mother would take a Malawian carer back to the US to ‘ease the transition into their new life’. The carer would also help the two older adopted children learn Chichewa.

The judge continued through her list, noting that she had asked the petitioner ‘some rather uncomfortable questions’ to which she had received ‘very candid answers’. Further, the petitioner’s finances seemed ‘more than adequate’ to ensure the children were adequately cared for ‘in all respects’. And, according to her doctor, she was in good health – ‘very important considering that (she) is above the age normally considered within the ranges of parenting’.

The judge decided against an interim order since the court had all the reports and evidence needed for a final decision. But there was a technical problem: Malawi was not a signatory to The Hague Convention on the protection of children and on adoptions, so the court could not easily order a further report on the progress of the twins a year down the line. ‘I am therefore entreating the petitioner’ to facilitate another home report within a year so that any problems that might arise in the meantime could be dealt with.

‘With her demonstrated co-operation during these proceedings and her commitment to proper parenting, I have no doubt that she will comply and provide this court with a copy of the sake of the completeness of record.’

The court made one final point in favour of the adoption. It was rare for twins to be adopted together, yet separation of twins negatively affected their development, and keeping them together was in their best interests. ‘In the matter before me an opportunity has arisen at an opportune point in the infants’ lives for the introduction of family integrity and permanence by a petitioner who has satisfied me that their adoption by her would be in their best interests.’

In the end I found Mwale’s approach rather more satisfying than the earlier Appeal Court decision. Her check-list and the apparently thorough way in which she examined the applicant seems to offer hope that in the High Courts at least, inter-country adoption of children from Malawi would be properly examined and overseen.

1. Interim order granted to the Petitioner re adoption of David Banda by the High Court: the order is not reported.

2. Confirmation of adoption order re David Banda. High Court. May 2008, Nyirenda J

3. Refusal of adoption order re Mercy James (referred to as "CJ"). High Court. 3 April 2009. Chombo J

4. Granting of appeal and approving adoption order re Mercy James. Supreme Court of Appeal. 12 June 2009. Three judges of appeal, decision written by the then CJ

5. Granting of adoption order re twin infants. High Court. Mwale J. 7 February 2017

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