Wednesday 25 April 2012

Notes on Adoption


Adoption:

In studying adoption students have to refer to:-
·        Children’s Act 38 of 2005;
·        Chapter 23 of the text book Family law, J Heaton, LexiNexis

The following should be noted:
*     Adoption is the formal process by which existing parental rights and responsibilities(PRR) are terminated and vested in another person.
*     The Children’s act governs adoption in RSA and inter-country adoptions.
*     The act provides that any person may adopt as long as the adoptive parent is above 18 years of age.
Adoption is therefore the legal act of permanently placing a child with a parent or parents other than the child’s birth/biological mother or father. A legal adoption order has the effect of terminating the parental rights of the birth mother and father, while transferring (i.e. ‘handing over to’) the parental rights and responsibilities to the adoptive parents.

Section 230(3) provides that a child is adoptable if:
a. the child is an orphan and has no guardian or caregiver who is willing to adopt the child;
b. the whereabouts of the child’s parent or guardian cannot be established;
c. the child has been abandoned;
d. the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; or
f. the child is in need of a permanent alternative placement.

Section 231 provides that a adoptable child may be adopted:  
a. jointly by
  • a husband and wife,
  • partners in a permanent domestic life-partnership, or
  • other persons sharing a common household and forming a permanent family unit;
b. by a widower, widow, divorced or unmarried person;
c. by a married person whose spouse is the parent of the child;
d. by the biological father of a child born out of wedlock; or
e. by the foster parent of the child.

 The adoption process

In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker functioning within the statutory accredited adoption system.
When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency.
All prospective adoptive parents are required to undergo a screening and preparation process.The screening process normally involves orientation meetings, interviews with a social worker, full medicals, marriage and psychological assessments, home visits, police clearance and references.
Once the screening process is complete, applicants are placed on a waiting list for a child.
There is usually a period of introduction to the child, the length of time varying according to the child’s age.


South African (RSA) Adoptions:

*     In RSA only a minor child can be adopted
*     The minor must also be adoptable (adoptability refers to a child that is a orphan, have been abandoned or abused or in need of a permanent alternative placement)
*     An adoption social welfare officer determines whether a child is adoptable
*     The Director General of Social Development has to keep a register namely the “register on adoptable children and prospective adoptive parents” (RACAP)

Adoptive parents

*     Any adoptive parent must be found to be fit and proper
*     The adoption application must be made in the prescribed manner at the children’s court.
*     The application must be accompanied by a report from the social welfare officer and a letter from the dept of social development recommending the adoption.
*     The consent of all guardians must be obtained, if the guardian is a minor she must be assisted by her guardian. 
*     Please refer to the section dealing with when consent is not required -page 293. (Sec 236 of Children’s act.)
*     If the adoptable child is 10 years of age and mature enough to understand the proceedings his/her consent must also be obtained.
*     Before consent is obtained the parties must be counseled by a social officer
*     Any party to the adoption may withdraw his/her consent within 60 days after signing the adoption application; hence an adoption order may only be finalized thereafter.
*     If the consent of a guardian is unreasonably withheld one can apply to the high court to dispense with such consent i.t.o. sec 241 of the Children’s act.

A freeing order: Sec 235 of the Children’s act
A parent or guardian may request to be freed from PRR pending the adoption application.
“a child protection organization accredited in terms of section 25 1 to
Provide adoption services or an adoption social worker may issue an order freeing a parent or person whose consent to the adoption of the child is required in terms of section 233 from parental responsibilities and rights in respect of the child pending the adoption of the child.”

Consideration of order: Sec 240 of Children’s act

*     The court must take all relevant circumstances into account (such as the religious and cultural background of the child, the prospective parent’s circumstances, the adoptive parent’s circumstances and nature as well as the report form the social welfare officer)
*     An adoption order may only be made if it is in the child’s best interest and the prospective parents have been properly assessed to be fit and proper parents and the consent of all parties have been obtained.

Notice to be given of proposed adoption: Sec 328 of the Children’s Act

238. “(1) when a child becomes available for adoption, the presiding officer must without delay cause the sheriff to serve a notice on each person whose consent to the adoption is required in terms of section 233.
(2) The notice must-
(a) Inform the person whose consent is sought of the proposed adoption of the child; and
(b) request that person either to consent to or to withhold consent for the adoption, or, if that person is the biological father of the child to whom the mother is not married, request him to consent to or withhold consent for the adoption, or to apply in terms of section 239 for the adoption of the child.
(3) if a person on whom a notice in terms of subsection (1) has been served fails to comply with a request contained in the notice within 30 days, that person must be regarded as having consented to the adoption.”

Advertisement & Payment:

*     Under no circumstances are one allowed to compensate or advertise for the adoption of a child. The only compensation that may be paid is in respect of the birth mother’s medical expenses.

Effect of order: Sec 234 & 242 of Children’s Act

*           Family members of the biological parents of the child also looses any PRR claim that may have in respect of the child, unless a post adoption agreement has been entered into in terms whereof the  court approves limited means to retain a link between the family members and the said child. The agreement must be drafted in a particular format.

*           Sec 234.( 1) The parent or guardian of a child may, before an application for the adoption of a child is made in terms of section 239, enter into a post-adoption agreement with a (a) communication, including visitation between the child and the parent or guardian concerned and such other person as may be stipulated in the agreement;…. 

Rescission: Sec 243 of Children’s Act

*     An adoption order may be rescinded on application by an interested party
*     The application must be made to the high court/children’s court within a reasonable period of time (not more than 2 years)
*     If the rescission order is granted, the PRR ceases from such date the rescission is made.


Inter-country adoption:

The purposes of this Chapter are give effect to the Hague Convention on Inter-country Adoption and to provide for the recognition of certain foreign adoptions. A convention country is therefore a country that forms part of the Hague convention.

Chapter 16 schedule 1 Children’s act governs inter-country adoptions. One must differentiate between the following forms of inter-country adoptions:

*           1. Adoption of a child that is habitually resident in RSA by an adoptive parent resident in a convention country. (Child in RSA, parent from Italy)

In this case the prospective adoptive parent must apply to the central authority of the convention country where she resides (Italy). The central authority of that country (Italy) must compile a report and submit same to the DG social development in RSA. If a suitable child is available in RSA, the DG prepares a report and submits same to the central authority of the country where the prospective adoptive parent resides (Italy). If the central authorities of the 2 countries agree on the adoption, the DG refers the matter to children’s court in RSA who will decide on the adoption.

Please refer to the requirements in your text books.

*           2. Adoption of a child that is habitually resident in RSA, by a parent from a non convention country: (Child in RSA, parent from Japan)

Must apply to competent authority of the country then follow the same procedure as above.  Japan is not a convention country; hence this situation will arise when a Japanese prospective parent wants to adopt a RSA child. The prospective parent must approach the Japanese authority and then follow the same procedure as in 1.

*           3. Adoption by a RSA resident of a child who is habitually resident in convention country: (Prospective parents in RSA – child in Italy)

Apply to central authority, as 1

*           4. Adoption by a RSA parent of a child in a non-convention country: (Parents in RSA –child in Japan)

Same as in 2.

Convention country adoptions are recognition as foreign adoptions; however in the case of non-convention countries a declaratory order may be requested to recognize the adoption. 

Notes on Domestic Violence


Domestic Violence:

In studying domestic violence students have to refer to:
·        -  Chapter 21 of the text book Family Law, J Heaton, LexisNexis;
·        -  The Domestic Violence Act 116 of 1998

Students can download a copy of the Domestic Violence Act as well as the application forms from http://www.info.gov.za.


Flow chart in respect of a domestic violence inquiry:  

1.            Client lodges a claim at the magistrate’s court that has jurisdiction to preside over the matter.

2.            Application is lodges by completing a standard form obtained from the clerk of the court at the court under oath.

3.            The clerk will peruse the application and open a file and allocate a reference/case number.

4.            The application will be taken to a magistrate in chambers where the magistrate will decide whether the application warrants the issuing of a interim protection order /should be dismissed or whether further evidence will be required to make a decision by issuing a Notice to Show Cause.

5.            In the event of an interim order / notice to show cause being ordered, the application as well as court order will be served on the Respondent via either the SAPS or the Sheriff.

6.            The Respondent may anticipate the interim order by filing the necessary notice at court and informing the applicant of his/her intention to address the application at an earlier date than the return date.

7.            The Respondent has to appear in court on the return date of the application. If he/she fails to attend court and prima facie proof exist that he/she had knowledge of the application – the interim order can be made a final order in his absence.

8.            If the respondent attends court on the return date the matter may be set down for a formal inquiry. At this stage the Respondent can file an opposing affidavit in either confirming or disputing the submissions made by the applicant in the application.

9.            Prior to the trial date the attorneys acting on behalf of the parties will prepare for a formal inquiry by having subpoenas issued i.r.o. witnesses they intend calling during the inquiry, as well as by indexing and paginating the bundle of documents they wish to use during the inquiry.

10.         The respective bundles of documents will be exchanged prior to the inquiry, whilst a copy will be made available to the court as well as for the witness/es.

11.         On the date of inquiry the applicant will firstly present viva voce evidence. After the applicant testified the respondent’s attorney will have an opportunity to cross-exam, thereafter re-examination by the applicant’s attorney.

12.         The applicant’s attorney may call further witnesses to support the application before court. Further witnesses must wait outside the court.

13.         Once the applicant has finalized his/her case – the applicant’s attorney will close its case.

14.         The respondent will thereafter present his/her case. Again the respondent will lead viva voce evidence and steps 11-13 are repeated.

15.         Once the respondent closes his/her case the attorneys of the parties will present arguments to the magistrate, where after the court will make a ruling.

16.         The final order may be rescinded or varied on application.

Notes on Maintenance



MAINTENANCE


In study Maintenance, students must refer to:

* Chapter 13 of the text book, Family Law, J Heaton, LexisNexis 
* the Maintenance Act 99 of 1998
* Maintenance of Surviving Spouses Act 27 of 1990
* the Divorce Act 70 of 1979 

(the aforesaid legislation as well as the forms relating to maintenance can be downloaded from http://www.info.gov.za).

In respect of the text the following is important:- 
 
·                     the difference in a section 7 (1) and section 7(2) of the Divorce Act order;


·                     the factors considered by the court in making a section 7(2) order;  in this regard students must take note of the case Grasso v   Grasso  Grasso;


·                     understand the purpose of rehabilitative, lump sum and token maintenance and take note of Botha v Botha,  Kooverjee v Kooverjee, Qoza v Qoza;

·                     the criteria for rescinding / amending an existing maintenance order in terms of section Sec 8(1) of the Divorce Act (Cohen v Cohen, Schutte v Schutte; Luttig v Luttig);

·                     the position when an ex contractu maintenance obligation in terms of a settlement agreement is silent on remarriage (Odgers v De Gersigny; Hodges v Coubrough) .

Divorce Act, 1979 (Act No 70 of 1979)
7. Division of assets and maintenance of parties

 
1)        A court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

2)        In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.

3)        A Court granting a decree of divorce in respect of marriage out of community of property-
a)        entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an ante nuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; or
b)        entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988,
                   may, subject to the provisions of subsection (4), (5) and (6), on application by  one  of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party.

4)        An order under subsection (3) shall not be granted unless the court is satisfied that it is equitable and just by reason of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or in any other manner.

5)        In the determination of the assets or part of the assets to be transferred as contemplated in subsection (3) the court shall, apart from any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party as contemplated in subsection (4), also take into account-
a)        the existing means and obligations of the parties, including any obligation that a husband to a marriage as contemplated in subsection (3) (b) of this section may have in terms of section 22 (7) of the Black Administration Act, 1927 (Act No. 38 of 1927);
b)        any donation made by one party to the other during the subsistence of the marriage, or which is owing and enforceable in terms of the ante nuptial contract concerned;
c)         any order which the court grants under section 9 of this Act or under any other law which affects the patrimonial position of the parties; and
d)        any other factor which should in the opinion of the court be taken into account.

6)        A court granting an order under subsection (3) may, on application by the party against whom the order is granted, order that satisfaction of the order be deferred on such conditions, including conditions relating to the furnishing of security, the payment of interest, the payment of installments, and the delivery or transfer of specified assets, as the court may deem just.

7)        
a)        In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets.
b)        The amount so deemed to be part of a party’s assets, shall be reduced by any amount of his pension interest which, by virtue of paragraph (a), in a previous divorce-
i)          was paid over or awarded to another party; or
ii)         for the purposes of an agreement contemplated in subsection (1), was accounted in favour of another party.
c)         Paragraph (a) shall not apply to a divorce action in respect of a marriage out of community of property entered into on or after 1 November 1984 in terms of an ante nuptial contract by which community of property, community of profit and loss and the accrual system are excluded.

8)        Notwithstanding the provisions of any other law or of the rules of any pension fund-
a)        The court granting a decree of divorce in respect of a member of such a fund, may make an order that-
i)          any part of the pension interest of that member which, by virtue of subsection (7), is due or assigned to the other party to the divorce action concerned, shall be paid by that fund to that other party when any pension benefits accrue in respect of that member;
ii)         the registrar of the court in question forthwith notify the fund concerned that an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party and that the administrator of the pension fund furnish proof of such endorsement to the registrar, in writing, within one month of receipt of such notification;
b)        Any law which applies in relation to the reduction, assignment, transfer, cession, pledge, hypothecation or attachment of the pension benefits, or any right in respect thereof, in that fund, shall apply mutatis mutandis with regard to the right of that other party in respect of that part of pension interest concerned.

9)        When a court grants a decree of divorce in respect of a marriage the patrimonial consequences of which are according to the rules of the South African private international law governed by the law of a foreign state, the court shall have the same power as a competent court of the foreign state concerned would have had at that time to order that assets be transferred from one spouse to the other spouse.


In respect of the maintenance application process students should take note of the provisions of the Maintenance Act as well as the following flow chart : 
 
Flow chart in respect of a maintenance inquiry:


1.           Client lodges a claim at the magistrate’s court that has jurisdiction to preside over the matter.

2.           Application is lodges by completing a standard form obtained from the maintenance prosecutor at the court under oath.

3.           The maintenance prosecutor will peruse the application and if satisfied that there is a responsibility to maintain /good cause shown for the variation of an existing order exists, issue the application with a reference/case number.

4.           The application as well as a notice to appear in court for an inquiry will be served on the Respondent via either the SAPS or the Sheriff.

5.           The Respondent has to appear at court on the date of the application. If he/she fails to attend court and prima facie proof exist that he/she had knowledge of the application – the prosecutor/applicant’s attorney may request that judgement by default is granted.

6.           If the respondent attends court on the date of the inquiry the matter will firstly be dealt with informally with an attempt to settle.

7.           If the parties cannot settle the matter- the matter will be postponed by a magistrate for trial.

8.           Prior to the trial date, either party may approach the prosecutor/the prosecutor on own accord can instruct a maintenance investigator to secure certain information etc.

 9.           Prior to the trial date the attorneys acting on behalf of the parties will prepare for trial by having subpoenas issued iro witnesses they intend calling during the trial, as well as by indexing and paginating the bundle of documents they wish to use during the maintenance trial and by discovering same.

10.       The respective bundles of documents will be exchanged prior to trial, whilst a copy will be made available to the court, the maintenance prosecutor as well as for the witnesses.

11.       On the date of trial the applicant will firstly present oral evidence. After the applicant testified the respondent’s attorney will have an opportunity to cross-exam, thereafter re-examination by the applicant’s attorney.

12.       The applicant’s attorney may call further witnesses to support the application before court. Further witnesses must wait outside the court.

13.       Once the applicant has finalized his/her case – the applicant’s attorney will close its case.

14.       The respondent will thereafter present his/her case. Again the respondent will lead oral evidence and steps 11-13 are repeated.

15.       Once the respondent closes his/her case the attorneys of the parties will present arguments to the magistrate, where after the court will make a ruling.