ADOPTION

Adoption is when a couple or a single person agrees to permanently take care of a child who is not their own. The law then treats the child as the child of the new parent or parents. The adoptive parents (the new parents) become the child’s legal guardians. (See Adoption of Children)

TESTING FOR HIV BEFORE ADOPTION

There is no legal requirement for prospective parents to be tested for HIV, however, some adoption agencies will not consider parents who are HIV positive and may demand that the applicants, child and birth mother be tested before they will proceed with an adoption. It is important to remember however, that HIV testing is not something that the law demands when it comes to adoption. The Children’s Act does not say whether or not HIV testing should take place before an adoption. This means that different welfare organisations may have different HIV testing policies. It is worth noting that the practice of compulsory HIV testing of parents and children before an adoption violates the right to privacy. (See Adoption of Children) (See Problem 3: Adopting a child)

FOSTER CARE

Fostering is usually for a short period so children are not tested for HIV before they are fostered. When a child’s HIV status is known and the child is under 12 years old, this may be told to the foster parents if it is in the child’s best interests, for example, the child needs special medical care. Adoption agencies are not required by law to disclose the child’s HIV status to the prospective parents. (See Foster care) (See Social grants for children below the age of 18 years) (See Exemption from school fees)

INSTITUTIONAL CARE

The Childrens Act allows a police officer to remove a child from a parent or any other person if he/she believes that the child is in need of care (eg if the child is neglected) and to take the child to a place of safety. After this, the Children’s Court will decide what is in the best interests of the child. Where no person can be found to take care of the child, the child may be sent to a children’s home until he/she is placed with a family or reaches the age of 18 years.

CAN A CHILDREN’S HOME REFUSE TO ADMIT A CHILD WHO HAS HIV?

A children’s home, place of safety, or any other institution (including schools and pre-schools) may not refuse to admit a child simply because of the child’s HIV status. This is unfair discrimination.

CAN A CHILDREN’S HOME OR PLACE OF SAFETY HAVE INFORMATION ON CHILD’S HIV STATUS?

A children’s home or place of safety does not have a right to have information on a child’s HIV status. Sometimes it may be in the best interests of the child if the caregiver knows a child’s HIV status. Children who are 12 years or older can decide whom to tell about their HIV status.