You and Your Rights

Several thousand children are adopted in South Africa each year. Because the interests of the child are paramount, adoption is governed by legislation.

The adoption of a child can be effected only by the children's courts of the district in which the child is resident, presided over by a commissioner of child welfare (who is a magistrate).

An informal agreement between the parents of a child and another person that the latter will have custody of a child does not have the effect of a legal adoption.

The law regarding adoption was set out in the Child Care Act, 1983, which contains the following provisions:

WHO MAY ADOPT; WHO MAY BE ADOPTED A child who is to be adopted must be under 18 years of age and may be adopted:

• Jointly by a husband and wife;

• By a widower or widow, or an unmarried or a divorced person; 

• By a person who has married the natural parent of the child.

Applying to court

If you wish to adopt a child, you must first complete and sign an application form - obtainable from the offices of the local commissioner of child welfare - and lodge it with the clerk of the children's court of the district where the child resides, together with your identity document or birth certificate and that of the child, the written consent of the child's foster parents (if there are any) and, if you have received counselling from a social worker, the report of that social worker.

You must state your name, date of birth, address, identity number, marital status, nationality, religion, home language, any relationship that you may bear to the child and whether you are receiving any allowance from the state in respect of the child you wish to adopt. The child's particulars must also be furnished.

Consent forms signed by the child, where applicable (see below), and his or her natural parents, as detailed below, must also be lodged.

The commissioner must take into account the religious and cultural background of the child and its natural parents, as against that of the applicant or applicants for adoption. These considerations are only guidelines, however, and there is nothing of an absolutely binding quality in them. A commissioner will not grant the application for adopting a child unless he or she is satisfied that:

• The applicant is, or applicants are, qualified to adopt the child in question, are in possession of adequate means to maintain and educate the child, are of good repute and are fit and proper to be entrusted with the custody of the child; 

• The adoption will serve the child's interests and contribute to his or her welfare; 

• Consent has been given by both of the child's parents or, if the child was born out of wedlock, by the mother (whether or not she is a minor or married and whether or not she is assisted by her parent, guardian or husband). Consent must be in writing and signed by the person or persons giving it in the presence of a commissioner of child welfare or, if given outside South Africa, signed in the manner prescribed by regulation. The consent must state the names of the proposed adoptive parents unless the court is satisfied that it is in the interest of the child that they not be given.

Parental consent is not required in the following cases:

• When the child's parents are dead and no guardian has been appointed. 

• When any parent, through mental incapacity, is incompetent to give consent; has deserted the child and whose whereabouts are unknown; has assaulted or ill-treated the child or has allowed the child to be assaulted or ill-treated; has caused or contributed to the seduction, abduction or prostitution of the child, or the commission of immoral acts by the child; whose child is in the custody of a foster parent following a ministerial extension of the period of a court order placing the child in the foster parent's care, or is in a children's home or school of industries; or is withholding consent unreasonably. 

• When the child, if over 10 years of age, consents to the adoption and understands the nature and meaning of his or her consent. The consent must be in writing and signed in the way previously mentioned. The names of the proposed adoptive parents must always be set out in the consent, except when the consent is given abroad and the appropriate minister of state dispenses with disclosure of the names. 

• When the child's natural parent is a South African citizen and the applicant (unless married to the child's natural parent) or one of the applicants is a South African citizen resident in the Republic, or otherwise has residential qualifications and has applied for naturalisation. 

• When the application is for the adoption of a foster child by a person other than the foster parent and the foster parent has consented in writing to the adoption. Such consent is not required if the foster parent fails or refuses to give or deny consent within a month after being called upon to do so by an assistant of the court. (A foster parent is any person, other than a natural parent or legal guardian, in whose custody a child has been placed in terms of (1) the Child Care Act, 1983, as having no parent or legal guardian, or being in the custody of a person unable or unfit to have custody; or (2) Section 290 of the Criminal Procedure Act, 1977, as a result of the child having been convicted of an offence.)

The adoption hearing

Few people are present at adoption hearings before the local children's court, which is presided over by a commissioner of child welfare. The court does not normally sit in a courtroom, but in an ordinary office. The proceedings, which are private and more informal than normal proceedings in court, are recorded. A person called the children's court assistant will assist the commissioner in leading evidence and cross-examining witnesses.

Usually the only others present will be the prospective adoptive parents, their legal representative (if they have one) and possibly a social worker. If the identity of the applicants is not to be disclosed to the child's natural parents, the parents are not allowed to be present at the same time as the applicants.

In satisfying itself that the statutory requirements have been met, the court will rely to a large extent on a report by a social worker who has thoroughly investigated the situation of the proposed adoptive parents and of the child. The ultimate decision, however, is made by the court.

Adoption of an adopted child

An adopted child may be adopted more than once. If so, all the legal consequences of the earlier adoption end, except in so far as the child has acquired any property through the prior adoption. The previous adoptive parents have the same rights and obligations for the new adoption proceedings as the child's natural parents.

Rescission of an adoption order

If an adoption order is granted, an application for its rescission (repeal) may be made to the children's court by a natural parent, the previous legal guardian, the adoptive parent or parents, or, with the consent of the appropriate minister of state, the children's court assistant.

If the applicant is the child's parent, the application must be made on the ground that the child's consent to the adoption was required but not given. The parent must apply within six months of becoming aware of the adoption order, but not later than two years after the order was made.

If the applicant is an adoptive parent, the application must be on the grounds that the adoption was induced by fraud, misrepresentation or reasonable error, or that the child at the time of adoption was, and still is, mentally ill, or that the child suffered from a congenital disorder or serious injury at the time the adoption order was granted. The applicant must apply within six months of becoming aware of the grounds for rescission and must have been ignorant at the time of adoption of the mental illness, congenital disorder or serious injury. However, the applicant's ignorance must not have been because of a failure to exercise reasonable care in examining the child or having it examined.

Application for the rescission of an adoption order can also be made, within two years of the granting of the order, on the ground that - for stated reasons - the adoption is not in the child's best interests, or that the adoptive parent or parents did not qualify for obtaining the adoption order when it was made.

The children's court gives interested persons an opportunity to be heard and considers the relevant evidence, either orally or in affidavit form. It then decides whether to rescind or confirm the order of adoption; it may not, however, rescind the order on the application of a natural parent if it is satisfied that he or she is unfit to have custody and that confirmation of the order will be in the interest of the child.

Rescission restores the child to the position it would have been in had no adoption order been made, but nothing that is lawfully done while the order was in force will be affected by the rescission.

Appeal

An adoption order, a rescission of an order or a refusal to rescind an order may be appealed against to the competent division of the Supreme Court as the upper guardian of all children as if the order, the rescission or the refusal were a judgment of a magistrate's court. The parent or previous guardian may appeal against an adoption order. A parent, guardian or adoptive parent who did not apply for rescission may appeal against a rescission.

An unsuccessful applicant for rescission may appeal against the refusal of rescission. (See appeals, civil.)

Registering an adoption

When the order of adoption has been granted, the appropriate director-general must, upon application by the adoptive parent, change the birth register to reflect the adoption and the change of the child's surname to that of its adoptive parent, if, as is usual, a change of surname has occurred. A birth certificate in the new surname may be applied for.

Finding a child to adopt

A couple seeking to adopt a child have several possible sources of assistance. There are voluntary charitable adoption agencies and societies, such as the local child welfare society. The appropriate department of most local authorities is also a good starting point. It is possible, too, that a local doctor, hospital matron or district nurse may have information - particularly about an unmarried mother seeking a home for her child.

The couple themselves may even know the parents of the child. The couple can be relatives or foster parents of the child they want to adopt. 'Buying' a child for adoption is in general undesirable. The Child Care Act, 1983, makes it a criminal offence for anyone, except with the consent of the appropriate minister of state, to give, undertake to give, receive or contract to receive any benefit, in cash or kind (goods or services), in respect of the adoption of a child. The penalty is a fine of up to R8000, imprisonment for up to two years, or both.

WARNING CHECKS The adoption agency or society first checks that the couple or person making the application is eligible to adopt. Then it enquires into their background in order to decide whether they would make suitable parents.

Many agencies have devised their own detailed and strict requirements for deciding whether to place prospective adoptive parents on their waiting lists. These are not necessarily the same as those used by the court in determining whether a person is suitable as an adoptive parent for a specific child. For example, the court will place some emphasis on the fact that the religious background of a newly born infant differs from that of a prospective parent, but a particular adoption agency may have stricter requirements by insisting on the matching of religions.

With many agencies, applications of couples are not normally considered until they have been married at least five years. In some cases there may be an upper age limit of 40 for a wife and 45 for a husband. Agencies often prefer couples to be about the same age as the natural parents of the child are or would be.

It is therefore advisable for prospective parents to consider applying to be placed on the waiting lists of two or more adoption agencies, and possibly, agencies in different cities.

PERSONAL QUESTIONS Couples must be prepared to answer personal questions about themselves and their marriage. If they are childless, they will probably be asked whether they have taken medical advice on infertility. But there is no legal requirement that they must be infertile before they can adopt.

Adoption agencies are wary about the possibility of a couple trying to adopt a child in order to save their marriage.