Consent is not required when:

• The parents of the child have died and no guardian has been appointed for the child.
• The parent:
  • is not competent to give consent as a result of mental illness
  • has deserted the child and it is not known where the child is
  • has physically, emotionally or sexually assaulted, ill-treated or abused the child or allowed assaults or ill-treatment
  • has caused or assisted in the seduction, abduction or sexual exploitation of the child, or has caused or helped the child to commit immoral acts
  • withholds consent unreasonably
  • of a child born out of marriage has failed to acknowledge himself as the father of the child or, for no good reason, did not fulfill parental duties with regard to the child
  • is the father of a child who was born out of marriage and was conceived in an incestuous relationship with the child’s mother
  • is the father of a child who was born out of marriage, and was convicted of the crime of rape or assault of the mother of the child
  • after an enquiry by the Children’s Court following an allegation by the mother of the child, found (on a balance of probabilities) to have raped or assaulted the mother of the child: provided that such a finding does not constitute a conviction for the crime of rape or assault
  • of a child who was born out of marriage has failed to respond, within 14 days

NOTE: A parent of the child who has consented to the child’s adoption has the right to withdraw consent within 60 days of giving the consent.

Case Study: Frasier vs Children’s Court, Pretoria North

Lawrie Frasier had a child with his partner. They were not married. By the time the baby was born the couple had separated. The mother of the child arranged for the child to be adopted by people that the father did not know and without getting his consent to the adoption. She also didn’t ask him whether he wanted to look after the child.

In the case, Mr Frasier said he had rights as the father of the child even though they weren’t married. But the Child Care Act said it was not necessary for a mother to get permission from the father of an illegitimate child. If they had been married, then she would have to get his consent. It was as a result of Mr Frasier taking up this case with the Constitutional Court that the Child Care Act was changed and the Natural Fathers of Children Born out of Wedlock Act passed.

(See: Parental Responsibilities and Rights of Unmarried Fathers)

The law regards an adopted child exactly as if he or she is the legitimate natural child of the adoptive parents. So there are the same rights and duties, for example the duty of support. All rights and duties between the child and its natural parents end.

Illegal adoption, for example paying to adopt a child, is a criminal offence.
(See: Problem 3: Adopting a Child)