NOTE: The Children’s Act deals with adoption as well as inter-country adoptions. The sections in the Act on adoption came into force on 1 April 2010.

Adoption is a legal way for an adult single person or a married couple to become the legal parents of a child. The Constitutional Court has decided in Du Toit and Another v Minister of Welfare and Others 2003 (2) SA 198 (CC) that the Child Care Act was unconstitutional in not providing for partners in same-sex life partnerships to adopt children jointly.

Adoption usually takes a long time. Parties must apply to the Children’s Court for an order of adoption under the Child Care Act.

A child who is adopted must be under 18. A child can be adopted:

• Jointly by a husband and wife
• By a widow or widower or an unmarried or divorced person
• By a person who married the natural parent of the child
• By the natural father of a child born out of wedlock
• By a couple in a same-sex life partnership
• By the foster parent of the child

CONSENT TO ADOPTION

Proper consent (permission) is needed to make an adoption order legal. Consent is written permission that is given to people wanting to adopt a child. Consent can be given by the parents, the guardian of the child or the child. A child older than 10 years can consent to their own adoption.

LAWS ON ADOPTION

Adoption laws in South Africa are outlined by the Child Care Act of 1983, which requires social workers and adoption agencies to ‘give due consideration’ to language, religion and culture when matching prospective parents with children. A child who is to be adopted must be under the age of 18 years and must be legally free to be adopted. This means that the biological parents of the child must either consent to the adoption or have had their parental rights terminated by a court. In some cases, a child may be placed for adoption by a children’s home or other institution.

CONSENT TO ADOPT

A child whose parents are both dead is available for adoption. Where the parents are alive, they must both consent to the adoption.

CHILD BORN OUT OF MARRIAGE

In the case of the child born out of marriage, consent must be given by both the mother and the natural (birth) father provided that he has acknowledged himself in writing to be the father of the child and has made his identity known on the child’s birth certificate. Where only one parent has given consent the commissioner will issue a notice to be served on the natural father within 14 days informing them of the consent that has been given and allowing them to also give or withhold consent. The Children’s Court does not need to issue a notice of an intended adoption of a child born out of marriage if the commissioner is satisfied that the natural father:

• Deserted the child and/or no one knows where he is
• Did not acknowledge that he was the father of the child or has failed without good reason to carry out his parental duties with regard to the child
• Was in an incestuous relationship with the mother of the child and the child was conceived as a result of this
• Was convicted of the crime of rape or assault of the mother
• Was, after an inquiry 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.

WHO CAN ADOPT A CHILD?

A married couple can jointly adopt a child. Partners in a life partnership (including same-sex partners) can jointly adopt a child. A person who has married the natural parent of a child can adopt the child (adoption of a step-child). A single person (a widow or widower or an unmarried or divorced person) can adopt a child as a single person if they get the consent of the Minister.

WHEN IS CONSENT NOT REQUIRED?

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 about 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 a mother didn’t need 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)

THE ADOPTION PROCESS

The adoption process consists of an assessment by a social worker, a police clearance, and a court application. This will usually need the support of an adoption lawyer.