National Adoption Coalition 2014 Conference: Adoption and Culture Legal road bumps in adoption

1. National Adoption Coalition 2014 Conference: Adoption and Culture Legal road bumps in adoption Carina du Toit carina.dutoit@up.ac.za 012 420 4502

2. General trends • Highly regulated and technical • Requires a high level of administration and legal knowledge • Ancillary issues are complicating issues – unmarried fathers, extended family and immigration and births registration laws • Uneven application of adoption practice in different Children’s Courts • Adoption service providers v Department of Social Development

3. S v M 2008 (3) SA 323 (CC) at para 15 • The comprehensive and emphatic language of s 28 indicates that just as law enforcement must always be gender-sensitive, so must it always be child-sensitive; that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interests of children;  and that courts must function in a manner which at all times shows due respect for children's rights. AD and another v DW and others 2008 (3) SA 183 at para 55 • Child law is an area that abhors maximalist legal propositions that preclude or diminish the possibilities of looking at and evaluating the specific circumstances of the case.

4. New cases in adoption • Centre for Child Law and others v Minister of Social Development 2014 (1) SA 468 (GNP) • S230 does not preclude a child from being adoptable because a child whose parent has consented or where consent can be waived falls within the definition of abandoned. In any event 231 specifically recognises step-parent adoption • S242 clearly confers a discretion on the presiding officer in respect of the type of order it can make at the end of adoption. • The Children's Court is obliged to function in a manner which in each case promotes the best interests of the child and should, except where there are sound reasons not to do so, make an order that the granting of an adoption order in favour of a step-parent will not terminate the responsibilities and rights of the child's parent or other guardian

5. In re XN 2013 (6) SA 153 (GSJ)– section 239(1)(d) letter • Confusion because step-parent was from Trinidad but married to South African and living in South Africa • The presiding officer waived the requirement of s239(1)(d) and sent the matter on special review • High Court finds that it is important that DSD has oversight to make sure all procedures and requirements have been complied with as this ensures the child is protected against untoward practices • This must be balanced against the purpose of adoption to find a safe, secure and nurturing family environment for the child • The requirement must not be easily waived as that would defeat the purpose of the act and bring adoption practice into disrepute • DSD must exercise it’s duties reasonably and should not cause inordinate and unnecessary delay

6. Children’s Third Amendment Bill • In 2011 DSD asked for submissions on proposed amendments to the Children’s Act and held extensive consultation meetings • The submissions were consolidated last year • Consultation with NGO’s and all their submissions were considered • Draft Third Amendment Bill • No dramatic amendments, relatively small amendments to Adoption and Inter-country adoption but they were mostly aimed at streamlining, creating exceptions and clearing up ambiguity

7. S230 Child who is adoptable • Two additional grounds should be added: necessary consent has been given and step-parent adoptions with necessary consent • “Social worker must make an assessment to determine whether a child is adoptable” • Try and get a finding in terms of section 150 that child is orphaned or abandoned – especially before placement with prospective adoptive parents • In respect of abuse or deliberate neglect – very difficult for the social worker to motivate in the adoption application, rather get a s150 finding and s135 termination. • Maybe an order that a child is adoptable should be considered?

8. Prospective adoptive parents • Section 231 removes any form of discrimination, including based on financial status • Indicates clear preference • Biological father • 231(8) family member • An adoption social worker “may” take culture and community of child into consideration • The religious and cultural background of the child, biological parents and adoptive parents “must” be taken into account by the presiding officer when considering the adoption application – section 240(1)(a) • Disconnect there between court and practice requirements

9. Form 30 • A prospective adoptive parent must be fit and proper • Part of the fit and proper assessment is to check details against Part B of the Register of Persons unsuitable to work with children • 123(1)(c) – cannot become an adoptive parent if you are on Part B of the Register • Check your details with Form 30 to National DSD, they must respond within 21 days • Delays of up to 18 months, may be because the right information hasn’t been sent to DSD but still unreasonable delays • Coming up to registration of all facilities in April 2015 which will add all the Form 29’s

10. Register on adoptable children and prospective adoptive parents - RACAP • The purpose of RACAP: • “To facilitate the matching of adoptable children and prospective adoptive parents” • There is a difference between the principal Act and the Regulations • The Act says “may” in respect of placing prospective adoptive and adoptable children on the register • In addition, there is nothing in the Act that states registration on RACAP is a requirement to adopt • The Regulations say “must” - that stands as law unless it is challenged as ultra vires • It is also DSD policy

11. Only permanent residents and South African citizens can be registered on RACAP. • Foreign citizens who come to South Africa with the sole purposes of adopting – use the foster care system and apply for adoption after a few years, then they are stuck in legal limbo • Parents in the Fitzpatrick scenario can never apply to be prospective adoptive parents • Foreign citizens applying for inter-country adoption cannot legally go on RACAP – it is not a requirement • Proposed amendment makes it clear even the South African citizen must be residing in SA to be on RACAP • RACAP is aimed at facilitating domestic adoption • Great deal of uncertainty regarding the operation of RACAP – timeframes for registration, access etc - especially facilitating cross-culture adoption – 30 days in province?

12. Consent to adoption – S233 • Both parent must consent, even if they are both children, then both must have parent/guardian assistance – section 233(1)(a) applies to the mother and father • Any person who is a guardian • The child if over 10 • Be especially careful to respect the rights of unmarried fathers –Section 231(a) – biological father who does not have guardianship has a right to be considered • He does not have to adopt if he has guardianship • You have to know section 19 and 21 of Chapter 3, if he qualifies in terms of section 21, it is highly unlikely that he falls in the categories proposed in section 236(3) • FS v JJ

13. Unmarried fathers • It is not enough to simply state allegations in your report, it is increasingly not accepted as sufficient evidence • Section 236(3)(c) – allegation of rape, court finds on a balance of probabilities – this means there has to be sufficient evidence and information before a presiding officer. • A bald allegation will not be sufficient • There are four ways an unmarried father can acknowledge that he is the father: (section 236(4)) • Written acknowledgement to clerk of Children’s Court before child is 6 months old; or • Voluntary payment of maintenance; or • Voluntary payment of damages i.t.o. customary law • Causing his particulars to be entered on the child’s birth certificate • Court must make a determination on a balance of probabilities

14. Consent is not required if the parent or guardian: (s236(1) &(2)) • Has abandoned the child, whereabouts are unknown or identity cannot be established • Has or has allowed the child to be abused or deliberately neglected • Consistently failed to fulfil parental responsibilities for 12 months • If the right to consent has been terminated by a court • If there is no response to a notice of adoption within 30 days • If the child is an orphan and has no guardian • If the child is an orphan and has no caregiver willing to adopt • Court can also dispense with consent if it is being unreasonably withheld and adoption is in the child’s best interest, taking into account • The nature of the relationship between the child and person withholding consent and any findings by another court in this respect • The prospect of a sound relationship developing between the child and the person withholding consent in the immediate future

15. Issues in respect of maternal consent • Assistance by a parent or guardian of a child mother to give consent – can you dispense with the consent of the parent or guardian? • Draft amendments include a discretion that the presiding officer may waive the requirement of assistance by a parent or guardian • Maternal preference – mother must indicate her preference in the consent and it is given special weight during consideration of the adoption (section 240(1)(b)) • The preferred adoptive parents must still be found to be suitable by the Children’s Court • Biological father (231(7)) and family member (231(8)) has a right to be considered, so if the are the preferred adoptive parent it is adds more weight in their favour

16. Manner of giving consent • The act does not specify that consent must be given within the area of jurisdiction of the Children’s Court where the child resides • Both consent and withdrawal of consent can be given in any Children’s Court • There are regulations for giving consent outside the Republic: • South African consular or diplomatic officer; • Judge, magistrate or justice of the peace of the relevant country. • There is nothing in the Act that excludes a foreign person from giving consent to the adoption of his/her child in front of a South African presiding officer in the Children’ • The Act applies to all children within the Republic of South Africa, can implement protections for children against foreign and citizen parents

17. Other consent issues: • Identification of the consenting parent • No identification documents? • Other evidence • It is unlikely the 60 day period will change • Section 233(8) already states the consent becomes final but we have heard consent being required due to delays in concluding the adoption • Draft amendments will make it even more explicit that the consent becomes final after 60 days even if a first attempt at adoption falls through • It is very bad practice to place before the 60 days expire

18. Post-adoption agreements • Problems • Limited to parent or guardian of the child • Limited to “before an application” • Most contested adoptions between adoptive parents and extended family, post-adoption agreements may be the solution if the family cannot care for the child but don’t want to feel like they are “losing” the child • It should be possible to consider a post-adoption agreement during the proceedings, presiding officer can ask it be considered if it seems like a solution

19. Recording the adoption on birth certificate • Birth registered within the Republic • South African parents – get ID number and typed certificate • Foreign parents – no ID number and handwritten birth certificate, i.t.o. regulation 8(5) DoH must register the birth of the child • If the child is orphaned or abandoned, the social worker may apply after the conclusion of an enquiry in terms of the Children’s Act • Section 245 is very clear, if a child whose birth is registered in South Africa is adopted in South Africa then the adoptive parent must apply to Home Affairs in terms of the Births and Deaths Registration Act to record the adoption and amend the surname • If an adopted child is not able to exercise rights based on his or her status as a child of the adoptive parents, the rights accorded by the adoption order are meaningless.

20. Section 28(1)(a) of the Constitution – every child has the right to a name and nationality • Hadebe v Minister of Home Affairs 2007 [JOL] 18906 para 14: • It is clear that if a child has, as is provided in section 28(1)(a) of the Constitution “the right to a name from birth”, the official of the state who is charged with doing those things that enable his or her name to be recorded must have a correlative duty to facilitate the registration of that name in the records of the state: certainly it is no part of the function of that official to place technical difficulties in the way of such registration. • If it is a child born in the Republic to foreign parents, they are supposed to give a handwritten unabridged certificate

21. Inter-country adoption • 261(8) and 262(2) - Adoption of a child from the Republic to a convention or non-convention country • There is a exception for adoption of a child by a family member or step-parent but there have been serious problems with these adoptions in terms of other countries’ immigration laws • On-going problem in respect of the choice between inter-country adoption, domestic adoption and guardianship applications • Section 25 states an application for guardianship by a foreign citizen must be regarded as an inter-country adoption • Section 29 states any applicant for guardianship of a child must indicate why he/she is not adoption the child • Proposal is that it is dealt with as a inter-country in its basic form but with exceptions as required by the specific case

22. Section 261(6)(a) and 262(6)(a) • The 140 day period during which the Central Authority may withdraw consent • Problem with separation of powers and the independence of the judiciary since and adoption order would already have been granted • Essentially after the order is granted and the child leaves the country both the Central Authority and the Children’s Court is finished • Not part of the Hague Convention • Proposal is that the Central Authority may withdraw consent any time before the adoption order is granted