The application of Nigerian Law to public law children cases

The family courts in England and Wales are being asked to deal with an increasing number of cases involving children of Nigerian origin where the care plan is placement with relatives in Nigeria. Typically special guardianship orders are granted by the court in those circumstances. The questions that often arise are:

• What is the effect of any such order and any child arrangement order in Nigeria?
• What if the child was born in England what is their immigration status in Nigeria?

Nigerian law issues that arise in those circumstances are around  the recognition of those orders in Nigeria as well as considerations of the Nigerian Law on citizenship of a child who may be a British citizenship.

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 Nigerian law 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 passed by the National Assembly in 2003, the relevant child welfare law for each state is a matter for each state and states in Nigeria have domesticated into state law the National Child Rights Law.

In advising the parties on what orders should be sought in Nigeria it will therefore be necessary to consider the child right law of the state where the child will reside. Whilst some states have domesticated the Child Rights Act as passed by the federal government, other states have made variations 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 need to be considered.  The Constitution of the Federal Republic of Nigeria recognises the concept of dual nationality so the fact that the child may be a British citizen will not prevent them from being deemed a Nigerian citizen by birth, subject to considerations of citizenship status of the child parents under the Nigeria constitution.

Typically applications will have to be made for a Nigerian passport or a visa to enter Nigeria. Further detailed advice on the exact process to use is necessary to ensure 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 interest.  The various statements that will be used in the proceedings in England will be inadmissible under Nigerian law as they are hearsay evidence. Consideration has to be given to how such documents can be admissible in 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, would help to avoid the need to relitigate factual issues already determined and ensure that documents used in care proceedings here can be admitted in evidence in subsequent proceedings in Nigeria.

Abimbola Badejo is dual qualified in England and Wales and in Nigeria, and is greatly in demand as an expert witness in cases which touch on Nigerian law. He frequently opines on cases involving children, but is also available to provide opinions on cases involving Nigerian property, divorce or taxes. To instruct Abimbola, please contact Jay Dorton.