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.