ADOPTION IN SOUTH AFRICA

A recent decision of the High Court, KwaZulu-Natal shed some much needed light and structure on the process required to enable prospective adoptive parents to adopt children in need.

Prior to the granting of the relief, the Court acknowledged that “there is a growing crisis in the Country concerning an ever increasing number of children who are being cared for in alternative care settings, thus growing up without permanency and support of a family unit. The destinies of orphaned or abandoned children are divergent. Some are cared for by their extended families, others are fortunate enough to find adoptive or foster parents who are able to provide them with a home and family life. But sadly there are many who are bound to spend their days in institutions of care.”

It has unfortunately been the position in South Africa, and even worse in KwaZulu-Natal, that the turn around time for adoptions can take months if not years.

This necessitated an application having been brought to the Durban High Court for an order streamlining the processes so that children in need can find their forever homes and start their lives with loving families.

It was emphasised by the Court that; “Too many children in South Africa are abandoned, abused, neglected and left with no hope of experiencing the love, joy and stability of their own family. Adoption is a time immemorial custom embedded in human society. It is also entrenched in our law and gives a child a right to grow up in a family and to experience the positive impact developmentally and psychologically as opposed to growing up in an institution. Bureaucratic and unnecessary delays in the adoption procedure should play no part in impeding a child’s rights to his or her own forever family.”

The heart of the application before the Court stemmed from the delays caused by the Department of Social Development (“the DSD”) to issue the Section 239(1)(d) letter, which is required in terms of the Children Act 38 of 2005 (“the Act”), in order for the Children’s Court to grant the final order for adoption.

In terms of the Act, the DSD is required to create an adoption panel which is to convene on a monthly basis to review and decide on all applications for adoption prior to the final application being made at Court. The Head of the Department is then required to issue a letter setting out whether it endorses the application for adoption before it, or whether it does not.

Only once the original letter from the DSD has been received, can the Court make a final ruling.

The Court was accordingly vested with the application before it, calling on measures to be laid out to curb the delays experienced by adoptive parents, so that adoptable children can, without unnecessary delays, be adopted.

The court accordingly granted, amongst other orders, the following:

The DSD had violated the rights articulated in section 28 of the Constitution, especially insofar that in all matters regarding children, the best interest of the child are of paramount importance.
The rights to dignity, to freedom and security and to equality of the children who are adoptable, have been violated by the failure of the DSD to make a decision, alternatively the failure to make a decision within a reasonable time, relating to their prospective adoptions.
The rights to dignity, to freedom and security and to equality of the children who are adoptable, have been violated by irrelevant considerations and delays caused by such irrelevant considerations of the DSD, relating to prospective adoptions.
A period of 30 days from the date of submission of the adoption application to the appointed and appropriate persons at the DSD, KwaZulu-Natal, to the date of the letter being received by the adoption social worker is a reasonable time for the purposes of section 239(1)(d) of the Act.
The DSD must issue the requisite letter within 7 days of meeting.
In the event that the letter is a letter not recommending the adoption, alternatively where the letter has been outstanding for more than 30 days, the social worker must set the matter down in the children’s court for consideration.
The children’s court may then waive the requirement of the letter, on a case by case basis, where the letter has been outstanding for more than 45 days, as to do so would be in the interests of justice for the children who are awaiting adoption.
A member of the panel can be called upon to attend at court at the time of the hearing of the adoption.
The Court, having considered all of the evidence of the adoption social worker and the member of the panel, may make a decision that it deems fit in the adoption application before it.

The above order will hopefully enable more adoptions to be finalised, thus allowing more needy and deserving children to be adopted in a more expeditious manner.

Contributor: JENNA FREEGUARD (Senior Associate) (Litigation & Matrimonial Departments) (PMB Office)

Tel: 033 341 9100

E-mail: jennaf@tmj.co.za