Following our articles on children and parents’ rights and responsibilities, we take a closer look at the rights and responsibilities that come with adoption of children in South Africa as referred to Chapter 15 of the Children’s Act.
When a child is adopted it means that the court agrees to give the child permanently to other parent/s who are able to take care of the child. The child who is adopted may be regarded as the natural child of the adoptive parent/s. The purpose of adoption is to protect and nurture children by giving them a safe and healthy living place. Because adoption is permanent, it aims to connect the adopted child to his or her adoptive family. The adoptive parents become the child’s legal guardians.
When can a child be adopted? (refers to Chapter 15, Section 230 of the Children’s Act)
The court will only allow a child to be adopted if the adoption is in the best interests of the child. A social worker must make sure that the child can be adopted and that the adoption will be in the child’s best interests.
Who can adopt? (refers to Chapter 15, Section 231 of the Children’s Act)
Social workers are tasked with assessing whether or not applicants will make good adoptive parents according to the guidelines of the court: parents who are fit and proper parents, over 18 years of age and who are willing and able to be parents. Potential parents cannot be discriminated against for financial reasons and they may apply for a social grant.
Consent to adoption (refers to Chapter 15, Section 233 of the Children’s Act)
Everyone involved must agree to the adoption.
When consent is not required (refers to Chapter 15, Section 236 of the Children’s Act)
Sometimes it is not possible to get everyone’s consent. The law has therefore said that there are some exceptions to the rule that ‘everyone must consent’.
The consent of a parent or guardian will not be required if:
- the parent is mentally ill,
- the parent has abandoned the child, or it is impossible to find the parent/s,
- the identity of the parent or guardian is not known,
- the parent deliberately neglected or abused the child or allowed the abuse to happen,
- the parent has failed to exercise any parental duties for one year,
- the parent has not responded to a notice of the proposed adoption within 30 days, or
- the parent has received a court order that they may not consent.
If the parent referred to above is the biological father then his consent is not necessary if:
- he is or was not married to the mother and he has not claimed paternity of the child,
- the child was born because of an incestuous relationship, or
- the court believes that the child was conceived as a result of rape.
If a child is an orphan, the court will need proof that the child has no parents and their death certificates must be shown.
Consideration of adoption application (refers to Chapter 15, Section 240 of the Children’s Act)
Adoption is a very serious decision that affects everyone. The court must be careful and has to look at a lot of important factors, including:
- the religious and cultural background of all the parties involved (the child, the child’s parent/s and the prospective adoptive parents),
- any reasonable preferences that the parent/s may have included in their consent, and
- the social worker’s report on the ability of the child to be adopted,
- the child’s best interests and the child’s medical information.
Effect of an adoption order (refers to Chapter 15, Section 242 of the Children’s Act)
It is a serious decision to adopt a child or give one up for adoption. If a child is adopted, all ties with the biological family must be cut. This means the biological parents and their family members have absolutely no rights or responsibilities over the adopted child. The adoptive parents will have full parental rights and responsibilities over the adopted child.
Contact with the biological child cannot be made a condition of the adoption by the biological parent. If the child would like to stay in contact with their natural parents after being adopted, and it will be in the child’s best interests, then the child can keep in touch with the parents. The same can go for the parents.
“If a child is adopted, all ties with the biological family must be cut. This means the biological parents and their family members have absolutely no rights or responsibilities over the adopted child.”
The adoption order does not terminate any property rights the child had before the adoption and the adopted child cannot marry anyone related from the biological or the adoptive family.
Cancellation of adoption order (refers to Chapter 15, Section 243 of the Children’s Act)
The court can cancel an adoption order if an application is brought to the court by the adopted child, a biological parent or a person who was the guardian of the child before the adoption not more than two years from the date of the adoption. The effects of cancelling the adoption order are that everything goes back to the way it was before the adoption.
An adoption order can only be cancelled if:
- it will be in the child’s best interests,
- the applicant is a parent whose consent was required but not obtained, or
- at the time of the adoption order, the adoptive parent did not qualify to be an adoptive parent.
Because adoption is a complicated process, the law must be followed. This means that it is illegal to abuse the system by trying to ‘speed up’ the adoption process by offering monetary compensation. Adoptive parents may contribute to the care of the pregnant person and the medical costs, but it will not allow bribery.
Intercountry adoption (refers to Chapter 16 of the Children’s Act)
Intercountry adoption involves parents who want to adopt living in a different country to the child. The Act tries to regulate and recognise intercountry adoptions to ensure that international standards for fit and proper adoptive parents are kept.
The Hague Convention is a very important document because South Africa has agreed to follow it and make it into law in South Africa. This means that if South Africa makes a law about intercountry adoption that is not in line with the Hague Convention, then the South African law will be thrown out and the Convention will apply.
The Act sets out a number of strict procedures and requirements that must be followed in intercountry adoptions. This is also not a decision that the court will take lightly, and the best interests of the child will always be the most important factor.