The interplay of public children and Nigerian law

Abimbola Badejo looks at the considerations that need to be made when applying Nigerian law to family law cases in the public sector.

In a world where moving between countries is more common than ever before, public children lawyers might need to look beyond the borders of England and Wales when considering and recommending a care plan for those with extended family abroad. There will be specific considerations to be taken into account depending on the other jurisdiction(s) involved.

The Family courts in England and Wales are dealing with an increasing number of cases involving children of Nigerian origin where the proposed care plan is for placement with relatives in Nigeria. Typically, special guardianship orders are granted by the court to the relatives. The issues of law that arise in these circumstances usually centre on the recognition of such orders in Nigeria – namely, what is the effect of any such order and any child arrangements order in Nigeria? There are also often considerations of Nigerian law on the citizenship of a child who is a British citizen. What if the child was born in England - what is their immigration status in Nigeria?

Nigeria operates a federal system of government. It operates under a written constitution which delegates legislative functions between the National Assembly and State Assemblies.

Questions of enforcement of foreign judgments are matters for the National Assembly. The combination of various old pieces of legislation means that foreign judgments on aspects of the welfare of a child are not automatically recognised in Nigeria and applications have to be made to the courts in the state where the child will reside for “mirror orders”.

Under the Nigerian constitution, the power to pass laws relating to the welfare of children is delegated to State Assemblies. Although there is a Child Rights Act which was passed by the National Assembly in 2003, the relevant child welfare law for each state is a matter for that state. Many (but not all) states in Nigeria have domesticated into state law the Child Rights Act.

In advising the parties on what orders should be sought in Nigeria it will therefore be necessary to consider the specific child rights law of the state where the child will reside. Whilst some states have domesticated the Child Rights Act, other states have legislated to suit their own unique needs. In every case it will be necessary to make any applications to the family court in the child’s state to regularise the placement.

Nigerian immigration issues for the child being placed in Nigeria also have to be considered. The Constitution of the Federal Republic of Nigeria recognises the concept of dual nationality, meaning that the fact that the child may be a British citizen will not prevent them from also being deemed a Nigerian citizen by birth subject to considerations of citizenship status of the child’s parents under the Nigerian constitution.

Typically, applications will have to be made for a Nigerian passport or a visa to enter Nigeria and further detailed advice will need to be sought on what is necessary in order to ensure a smooth transition to Nigeria.

The legal system in Nigeria can be fraught with legal technicalities and subject to delay, both of which are not in the child’s best interests. The various statements that will be used in the proceedings in England, will be inadmissible under Nigerian law as they are hearsay evidence. Consideration therefore has to be given to how such documents can be admitted into evidence in subsequent court proceedings in Nigeria. Further it is necessary to consider how to avoid the need to relitigate factual issues already decided here.

The Nigerian Evidence Act thankfully contains provisions which, if judiciously deployed, will help to avoid the need to relitigate factual issues which have already been determined, and ensure that documents used in care proceedings here can be admitted in evidence in subsequent proceedings in Nigeria. Specialist advice needs to be taken on this in order to ensure that any application complies with state laws, and is therefore likely to be successful.

Abimbola Badejo is dual qualified in England and Wales, and in Nigeria. He is frequently asked to provide expert reports relating to children being moved between England and Nigeria. He also has an active practice as a barrister specialising in public children law and therefore has a deep understanding of the legal issues as well as the practical questions which are likely to arise. To read more about Abimbola, please check his profile: www.5pumpcourt.com/people/barristers/abimbola-badejo