NGA200339.E - Nigeria: Requirements and procedures for a child to leave the country with one parent

Nigeria: Requirements and procedures for a child to leave the country with one

parent (2018–November 2020)

1. Legislation

In correspondence with the Research Directorate, a partner at a Lagos-based

Nigerian law firm with regional offices in the Akwa Ibom state and the US, whose

practice areas include family law, indicated that "[l]egally speaking, there is no

specific law or regulation that establishes what procedure … must be followed by a

parent leaving Nigeria with his/her child without the other parent" (Nigerian law

firm 28 Sept. 2020). The same source further stated that there are "legal instances

which give rise to the need of such travel consent," stemming from the Child's

Rights Act, 2003 and the Matrimonial Causes Act (Nigerian law firm 28 Sept.

2020). Section 277 of the Child's Rights Act, 2003 defines a child as a person under

18 (Nigeria 2003). Section 27 of the same law provides the following:

27. –

1. No person shall remove or take a child out of the custody or protection of his

father or mother, guardian or such other person having lawful care or charge

of the child against the will of the father, mother, guardian or other person.

2. A person who contravenes the provisions of subsection (1) of this section

commits an offence and is liable on conviction–

1. where the child is unlawfully removed or taken out of Federal Republic

of Nigeria–

1. with intention to return the child to Nigeria, to imprisonment for a

term of fifteen years, or

2. with no intention to return the child to Nigeria, to imprisonment

for a term of twenty years.

2. where the child is unlawfully removed or taken out of the State in which

the father, mother, guardian or such other person who has lawful care of

the child is ordinarily resident, to imprisonment for a term of ten years,

3. in any case, to imprisonment for a term of seven years. (Nigeria 2003)

Sources note that various states in Nigeria have adopted the Child's Rights Act,

2003 (Nigerian law firm 28 Sept. 2020; Etomi and Asia 1 May 2019, 2), including

Lagos, Enugu, Plateau and Rivers states, while "[m]ost" states in the north have not

adopted it (Etomi and Asia 1 May 2019, 2).

2. Requirements and Procedures

In correspondence with the Research Directorate, a partner of a Lagos-based law

firm, whose practice areas include immigration law, indicated that the parent would

need a "letter of consent and authority from the absent parent giving consent to

travel with the child" (Partner 30 Sept. 2020). Since there is no "legally-stipulated

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procedure," the Partner of the Nigerian law firm practicing family law stated that

their law firm "can only make" the following recommendations:

1. It is generally recommended that a parent intending to travel out of the

country with a child in absence of the other parent should have a document

evidencing consent from the other parent. This would forestall any consequent

delay that might arise from the departure from Nigeria or entry into the arrival

country.

2. The document should be signed by the non-accompanying parent and should

include:

1. Statement of consent of the non-accompanying parent to the travelling

parent;

2. Relevant details of the travelling parent and bio details of the child;

3. Full contact details of the parent not travelling, and copy of government

issued ID;

4. Travel details, i.e., travel dates, airline and country of destination.

3. May be notarised for authentication purposes, especially for presentation in

the arrival country. (Nigerian law firm 28 Sept. 2020)

2.1 Divorced Parents

The Partner who practices immigration law stated that the divorce document would

explain which parent has custody and the terms of such a custody arrangement, and

in cases where the divorce is pending or a claim for custody has been filed, neither

party can travel with a child from that relationship except by mutual agreement

(Partner 30 Sept. 2020). In correspondence with the Research Directorate, a doctor

who lectures at the Faculty of Law at Nnamdi Azikiwe University in Awka, Nigeria

and who has conducted research on children's rights in divorce and custody matters,

indicated that

in a divorce case where joint custody or custody to one parent with access or visiting

rights to the other parent is ordered by the court, consent of the other parent is

required for the request of issuance of [a] visa; in a case where sole custody is

awarded, consent will not be required since custody is awarded in the best interest

and welfare of the child, but the other parent will be notified. Documents to

establish divorce and custody, which are Order of Decree Nisi [1] and for custody of

the child, will be required. Where divorce is pending, or custody has been filed,

consent of the other parent is required, because both parents still have equal

custody and parental rights of the child. (Doctor of Law 29 Sept. 2020)

An overview of family law in Nigeria, prepared by members of a Nigerian law firm

[2] and published by Thomas Reuters Practical Law [3], states that if a parent with a

child custody agreement wishes to take a child "out of the jurisdiction,"

the permission of the other parent is required because custody is based on certain

established facts. Relocation will always change the dynamics of the facts, including:

Accommodation and education for the child.

Earning capacity of the custodial parent

Visitation Rights for the other parent.

The other parent can therefore challenge removal without permission. (Etomi and

Asia 1 May 2019, 18)

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In contrast, the partner of the Nigerian law firm practicing family law indicated that

[r]equirements are basically circumstantial, since the immigration officials at the

point of exit will not know the relationship status of the intending traveller. They

would not normally enquire into whether the travelling party is divorced or legally

separated except where they become privy to an existing situation. However, for

matters of judicial hearing, it would be expedient for the party to provide certified

evidence of the divorce decree and order for custody. (Nigerian law firm 28 Sept.

2020)

3. Parental Consent to Obtain a Nigerian Passport for a Minor

For information on procedures and requirements to obtain a passport for minors in

Nigeria and abroad, see Response to Information Request NGA200337 of

November 2020.

Article 40(4) and 40(5) of the Immigration Regulation, 2017 provides the

following:

(4) All requests for issuance of passports in respect of a minor shall be supported

with a consent letter from either parent.

(5) In the case of minors who are orphans, a letter of consent under sub-regulation

(4) of this regulation shall be required from a lawful guardian, a person having

lawful custody of the minor, an Orphanage Home or the appropriate Government

Institution. (Nigeria 2017)

The website of the Nigeria Immigration Service (NIS) indicates that a letter of

consent "from either parent" is required (Nigeria n.d.).

In contrast, a handbook on the rules and requirements of the Immigration Act 2015

and Immigration Regulations 2017 published by the NIS in June 2017 provides the

following requirements for a minor aged 17 and under to apply for a standard

passport:

1. Completed passport application form attached with 1 passport sized

photograph of minor to be endorsed on the reverse side by the consenting

parent/s;

2. Evidence of Nigerian citizenship of parent/s;

3. Birth certificate (certificate must be issued by the National Population

Commission for minors born within Nigeria);

4. Letter of consent from both parents ([or a c]ourt [o]rder to support a parent's

unavailability);

5. Acknowledgement slip and evidence of payment;

6. In the case of [a]dopted [c]hildren, [c]ourt [o]rder and [l]etter of approval

from appropriate State Ministry are required in addition to the above stated

requirements. It shall be processed within 20 working days. (Nigeria June

2017, 23)

The Partner whose practice areas include immigration law similarly indicated that

the consent of both parents, regardless of marital status, is required to apply for a

passport for a minor (Partner 30 Sept. 2020). The US Department of State's

reciprocity schedule for Nigeria notes that, for passport applications, "parents' letter

of consent for minors under 16 years" is required (US n.d.). Australia's Department

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of Foreign Affairs and Trade (DFAT) reports that a "father's letter of consent for

minors under 16 years signed by both parents" is required (Australia 9 Mar. 2018,

para. 5.36). The Doctor who lectures in law indicated that consent of both parents is

required for married parents when applying for a Nigerian passport for a child

(Doctor of Law 29 Sept. 2020). Where there is no marriage, such as in cases where

the father is unknown, consent of the other parent is not required; "however, a court

order or affidavit to establish single parenthood" is required (Doctor of Law 29 Sept.

2020). The same source further stated that for cases

where there is no marriage, but paternity is acknowledged or established,

notification of the other parent will be required, [and] if legal steps for custody were

taken, and the court has granted joint parental responsibility to the parents upon

application to the court, consent of the other parent will be required. (Doctor of Law

29 Sept. 2020)

4. Child Custody and Parental Abduction

Section 69 of the Child's Rights Act, 2003 provides the following:

69. –

1. The Court may–

1. on the application of the father or mother of a child make such order as it

may deem fit with respect to the custody of the child and the right of

access to the child of either parent, having regard to‐

1. the welfare of the child and the conduct of the parent; and

2. the wishes of the mother and father of the child;

2. alter, vary or discharge an order made under paragraph (a) of this

subsection on the application of–

1. the father or mother of the child, or

2. the guardian of the child, after the death of the father or mother of

the child; and

3. in every case, make such order with respect to costs as it may think just.

(Nigeria 2003)

Section 71 of the Matrimonial Causes Act of 1970 provides the following:

(1) In proceedings with respect to the custody, guardianship, welfare, advancement

or education of children of a marriage, the court shall regard the interests of those

children as the paramount consideration; and subject thereto, the court may make

such order in respect of those matters as it thinks proper.

…

(4) Where the court makes an order placing a child of a marriage in the custody of

a party to the marriage, or of a person other than a party to the marriage, it may

include in the order such provision as it thinks proper for access to the child by the

other party to the marriage, or by the parties or a party to the marriage, as the case

may be. (Nigeria 1970)

According to the overview of family law in Nigeria,

[t]here is no express provision on applications to remove a child from the

jurisdiction [against the wishes of the other parent]. However, a custodial parent

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can apply to remove a child from the jurisdiction if it is in the interest of the child

under the Child's Rights Act. The court will take into consideration similar factors

for the grant of custody and the visitation rights of the other party (if any). (Etomi

and Asia 1 May 2019, 18)

For additional information on child custody, including whether a parent can legally

relocate with a child to another jurisdiction and the ability to track the child after

relocation, see Response to Information Request NGA200143 of April 2020.

Sources report that Nigeria is not a signatory to the Hague Convention of 25

October 1980 on the Civil Aspects of International Child Abduction [4] (Nigerian

law firm 28 Sept. 2020; HCCH 19 July 2019; Etomi and Asia 1 May 2019, 17). The

overview of family law in Nigeria states that international abduction is dealt with

"mainly by pressing criminal charges. The other option is the use of diplomatic

channels between Nigeria and the other country involved" (Etomi and Asia 1 May

2019, 17). A guide to parental child abduction to Nigeria by reunite International

Child Abduction Centre (reunite), a UK-based charity specializing in international

parental child abduction (reunite n.d.), indicates that international parental child

abduction cases in Nigeria are heard by the High Court where the abducted child is

believed to be located (reunite 2020, 8).

This Response was prepared after researching publicly accessible information

currently available to the Research Directorate within time constraints. This

Response is not, and does not purport to be, conclusive as to the merit of any

particular claim for refugee protection. Please find below the list of sources

consulted in researching this Information Request.

Notes

[1] Section 56 of the Matrimonial Causes Act provides that a "decree of dissolution

of marriage or nullity of a voidable marriage under this Act shall, in the first

instance, be a decree nisi" (Nigeria 1970, emphasis in original).

[2] The overview of family law in Nigeria was prepared by Efe Etomi, a partner at

Chief Rotimi Williams' Chambers (FRA Law) whose areas of practice include civil

litigation relating to family law disputes, and Elvis Asia, an associate at FRA Law,

whose areas of practice also include civil litigation relating to family law disputes

(Etomi and Asia 1 May 2019, 22-23).

[3] Thomson Reuters Practical Law is an online legal service that provides peer-

reviewed resources (Thomson Reuters n.d.).

[4] The Hague Convention of 25 October 1980 on the Civil Aspects of International

Child Abduction is "a multilateral treaty, which seeks to protect children from the

harmful effects of abduction and retention across international boundaries by

providing a procedure to bring about their prompt return" (HCCH n.d.).

Australia. 9 March 2018. Department of Foreign Affairs and Trade (DFAT). DFAT

Country Information Report: Nigeria. [Accessed 16 Sept. 2020]

Doctor of Law, Nnamdi Azikiwe University. 29 September 2020. Correspondence

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with the Research Directorate.

Etomi, Efe, and Elvis Asia. 1 May 2019. "

Family Law in Nigeria: Overview."

Thomson Reuters Practical Law. [Accessed 28 Sept. 2020]

Hague Conference on Private International Law (HCCH). 19 July 2019. "

28:

Convention of 25 October 1980 on the Civil Aspects of International Child

Abduction." [Accessed 28 Sept. 2020]

Hague Conference on Private International Law (HCCH). N.d. "

Child Abduction

Section." [Accessed 28 Sept. 2020]

Nigeria. June 2017. Nigeria Immigration Service (NIS).

Operationalisation of the

Presidential Executive Order One (EO 1) in the Nigeria Immigration Service.

[Accessed 16 Sept. 2020]

Nigeria. 2017.

Immigration Regulations, 2017. [Accessed 16 Sept. 2020]

Nigeria. 2003.

Child's Right Act, 2003. [Accessed 28 Sept. 2020]

Nigeria. 1970.

Matrimonial Causes Act. [Accessed 28 Sept. 2020]

Nigeria. N.d. Nigeria Immigration Service (NIS). "

Standard Passport." [Accessed 16

Sept. 2020]

Nigerian law firm. 28 September 2020. Correspondence from a partner to the

Research Directorate.

Partner, Lagos-based Law Firm. 30 September 2020. Correspondence with the

Research Directorate.

reunite International Child Abduction Centre (reunite). 2020.

A Guide to

International Parental Child Abduction to Nigeria. [Accessed 28 Sept. 2020]

reunite International Child Abduction Centre (reunite). N.d. "About Us." [Accessed

28 Sept. 2020]

Thomson Reuters. N.d. Practical Law. "

About Us: About Practical Law." [Accessed

28 Sept. 2020]

United States (US). N.d. Department of State. "

Nigeria Reciprocity Schedule."

[Accessed 16 Sept. 2020]

Oral sources: Associate professor of law who has conducted research on family

law; four Nigeria-based law firms whose practice areas include family law; lecturer

of law who has provided pro-bono legal assistance for women in civil litigation

cases; Nigeria – Embassy of the Federal Republic of Nigeria in Washington, DC,

High Commission in Ottawa, Nigeria Immigration Service; professor of law who has

conducted research on family law; senior lecturer who has taught Nigerian family

law; UK-based lawyer who has worked on international child abduction cases in

Nigeria; Women's Consortium of Nigeria.

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Internet sites, including: Churchfields Solicitors; ecoi.net; Factiva; The

Guardian [Nigeria]; The Lawyers Chronicle; Mondaq; Nigeria – High Commission

in London; The Nigeria Lawyers; This Day; UN – Refworld.

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