3 April 2009
A Malawian judge today denied Madonna permission to take three-year-old Chifundo ‘Mercy’ James back home.
Esmie Chombo’s dramatic ruling was announced on the steps of Lilongwe’s High Court in a rainstorm shortly before 11am local time.
The court turned down the singer’s request for an interim adoption of a second child because she has not satisfied a requirement that prospective parents be resident in the country for 18 to 24 months. Madonna’s lawyer has said she would lodge an appeal.
The judge noted that Madonna had jetted in just days prior to Monday’s hearing.
Madonna seen today visiting the village of Salaza near Lilongwe. It was in Lilongwe that a judge blocked the singer’s adoption bid
Madonna also visited a development project in Gumulira, Malawi today. The singer has several charity projects in the African country
Judge Esmie Chombo who today rejected Madonna’s petition to adopt three-year-old Mercy James.
This means the 50-year-old singer cannot take custody of Chifundo – whose name translates into English as Mercy – or leave the country with the child, usually the first formal step to granting a full adoption.
Judge Chombo said: ‘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.
‘As wisely put by G K Chesterton: ‘Don’t ever take a fence down until you know the reason why it was put up.’
Madonna was not in court to hear the ruling, though her lawyer did attend – until he left through a back entrance after learning the news.
Key to the judgment, said Judge Chombo, was the meaning of the word ‘residence’.
‘Residence denotes some degree of permanence. It does not necessarily mean the applicant has a settled headquarters in this country,’ said Mrs Chombo, quoting previous legal precedents.
‘It seems dangerous to try to define what is meant by residence. In the present case, I can only answer that question in the case of [Madonna] by holding that she is not resident in this country; she is merely a sojourner here during a period of leave.’
Four-year-old Mercy James can be seen here holding the hand of the singer’s daughter Lourdes
She added: ‘Consequently, a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit.
‘Some expectation of continuity is a vital factor, which turns simple occupation into residence.
‘Ms Madonna may not be the only international person interested in adopting the so-called poor children of Malawi.
‘By removing the very safeguard that is supposed to protect our children, the courts by their pronouncements could actually facilitate trafficking of children by some unscrupulous individuals who would take advantage of the weakness of the law of the land.
Lilongwe High Court, pictured, where the closed door adoption hearing was held
Mercy, the child at the centre of it all. Her 18-year-old mother died five days after giving birth to her
‘Anyone could come to Malawi and quickly arrange for an adoption that might have grave consequences on the very children the law seeks to protect.’
Judge Chombo, who did not announce the ruling in person but handed it to the court registrar to make public, added: ‘As I make the order I am acutely aware of the high expectations that the family of CJ (Chifundo (Mercy) James) and possibly other independent well-wishers, had about the unlimited opportunities that the proposed adoption would avail CJ.
‘I have no doubt that all hope is not lost with the petitioner’s noble and immediate ideas of investing in the improvement of more children’s lives in Malawi.
‘It is my prayer that CJ would be among the first children to benefit from that project.
‘Having said all this then, at the end of the day I must decline to grant the application for the adoption of the infant CJ.’
The controversy over Madonna’s adoption of David Banda form Malawi in 2006 centred around the issue of residency.
That time around a different judge, Andrew Nyirenda, ruled in Madonna’s favour.
He stated: ‘It might well be that the definition of ‘residence’ is at large and might be equated, in the circumstances of the case, to mere physical presence in the country at the time of the petition so that the court can make its own assessment of the applicants and how committed they are in the undertaking.’
Court RegistrarThom Ligowe, left, stands by as the verdict of Madonna’s adoption application result is read out by a journalist at Lilongwe High Court today
Judge Chombo, it seems, chose to interpret the word more literally.
Madonna reacted to the judgment by going to the gym and hitting the treadmill she has had flown in especially to Malawi.
Her lawyer, Alan Chinula, has said she would lodge an appeal with the Supreme Court.
Her London spokeswoman was not immediately available for comment.
Madonna leaves the high court in Lilongwe on Monday. She is expected to appeal the decision
Mercy is in the same orphanage that previously housed David.
A statement which confirmed the verdict of Madonna’s adoption application result was read out by a Malawian journalist at Lilongwe High Court as Court Registrar Thom Ligowe stood by.
The residency rule was waived in 2006, when Madonna was allowed to take her adopted son, David, to London before his adoption was finalised in 2008.
However, when Madonna adopted David, she was still married to British film director Guy Ritchie.
Their divorce became finalised earlier this year, and she was adopting Mercy as a single mother.
The 50-year-old singer flew into the southern African state on Sunday and applied to adopt Chifundo James, the following day.
In court papers made public today, Madonna said Mercy’s grandmother was unable to care for her.
She promised to make Mercy a permanent part of her family and spare her the ‘hardship and emotional trauma’ of life as an orphan.
The girl’s mother, according to the affidavit, died at age 14 just days after her baby was born on January 22, 2006. There was no mention of the father in the affidavit.
The mother’s brother is listed as having consented to the adoption.
‘I am able and willing to securely provide for Chifundo (Mercy) James and make her a permanent and established member of my family,” Madonna said.
‘To deny Chifundo James the opportunity to be adopted by me could expose her to hardship and emotional trauma which is otherwise avoidable.’
A legal source told MailOnline that it appeared that Madonna had tried to circumvent Malawi’s adoption law.
‘But thankfully the judge has rightly denied her permission to do so.
‘While Madonna’s bid to adopt an African child is worthy, one would ask why she would choose to pursue so vigorously a child who although orphaned, actually has relatives prepared to look after her, but without the financial means to do so.’
Madonna with adopted son David Banda.The singer arrived in the country with children David, Lourdes and Rocco to lodge the application for custody
The singer arrived in the country with children Lourdes and Rocco to lodge the application for custody.
And she expected to fly back to the US with the daughter she wants to adopt as an African sister for son David.
But controversy has dogged her bid to adopt a second Malawian child with human rights groups accusing Malawian authorities of giving her special treatment.
The news has come as a shock as her bid has received backing from some Malawian officials.
Information minister Patricia Kaliati said the singer who has poured thousands of dollars into building a day care centre in the impoverished country, had helped Malawi and was a worthy mother.
But Malawian civil society groups have opposed the adoption and a local human rights activist said it would amount to child trafficking.
Reunited: Madonna with adopted son David as they meet with the boy’s biological father, Yohane Banda – David did not recognise him
The government came under fire after Madonna adopted 13-month-old Malawian child, David Banda, in 2006, with critics accusing it of giving her special treatment by skirting laws that ban non-residents from adopting children.
But Mrs Kaliati said: ‘Madonna has been good to us. She is supporting over 25,000 orphans here and she has proved she can take care of David.
‘Very few rich and famous people can take time to fly all the way to Malawi to support our children. We support her adoption process.’
However, her latest bid has been blocked and it remains to be seen whether the singer who has faced charges that she has ‘bullied’ her way through Malawi’s adoption law, will continue with the process.
An estimated 1million children have been orphaned by Aids in Malawi.
A spokesman for the recently divorced star said: ‘She is not skirting any legal issues and is looking to provide a loving family environment and the best education and health care for a child who has been in an orphanage since birth.’
Madonna, accompanied by David, arrived in Malawi on Sunday ahead of the court examination of her application.
The star, who was divorced last year from British film director Guy Ritchie, is one of the most successful singers of all time, with album sales of more than 200million.