International adoptions of Ugandan children rose by 400 percent from 2010 to 2011, many under irregular and suspicious circumstances (Lumu 2014) due to a ‘legal guardianship loophole’ that allows prospective adoptive parents to take children under their guardianship out of the country even before a child’s adoptability has been determined. Ugandan courts then lose jurisdiction because such adoptions are finalized in the adoptive country.
This article highlights the emerging social justice issues associated with these trends, as well as the irreversible damage of such actions on children’s growth and development. The courts play a critical role in adoption and legal guardianship cases, using their discretionary power to promote the best interests of children and ensure their safety, survival and development. Because judicial officers are more empowered than any other authority, we argue that they must exercise this discretion with social justice in mind; a fair and transparent process of judicial decision-making that recognizes human value, children’s capabilities, and wellbeing as well as treats all parties equally – regardless of their social status – is essential if children are to be protected from adoption abuses and trafficking. A watertight adoption procedure is the only means of ensuring the appropriate identification of adoptable children and guaranteeing that children are regarded as individual rights holders rather than the property of adults.