05 February 2019
403
I am considering
adoption, but I am not sure what the procedure is or whether I may apply for the
adoption of a child. What would I need to know before initiating the procedure?
Adoption
is quite a long and complex procedure. The courts consider various factors when
determining whether parties are suitable or not. Amongst other things, the best
interest of the child is generally the main factor courts consider when hearing
an adoption application. Once parties have satisfied the court with the
necessary and the adoption is granted and finalised, the adoptive parents are
deemed to be the parents of the child for all purposes.
The legal
definition of adoption is the legal performance of permanently placing a child
with a parent or a couple other than the child’s biological parents. When one
engages in a legal adoption it terminates the parental rights and
responsibilities of the biological parents and the adopted child is for all
purposes deemed to be the child of the adoptive parents. The notion of the best
interest of the child is also of paramount importance in cases of adoption.
Section
230(1) read together with section 231 of the Children’s Act provides for the
eligibility of adoption, namely who may be adopted and who may apply for
adoption. A child may be adopted by life partners, same-sex partners or
otherwise, in a joint adoption. A person who is married to the biological
parent of the child can also adopt the child.
Parties
to the adoption agreement must provide their consent. Each parent of the child
and/ or where applicable every legal guardian of the child must consent to the
agreement. In that regard, an adoption agreement is like a surrogate agreement
in the sense that all the parties to the agreement must provide their consent.
A party
who consented to the adoption can withdraw such consent within sixty days after
the consent has been given. In the instance of adoption, a contract is entered
into with an intention, however, the parties to this agreement are given the
option to withdraw their consent to terminate the agreement. Biological
parents, adoptive parents and the Minister of Social Development can apply to
the Children’s Court to cancel an adoption two years after the adoption took
place, for example, where the adoption is not in the best interest of the child
or the adoption process was fraudulent.
There is
a specific procedure followed in respect of adoption, for an adoption to
qualify as a valid adoption. One cannot pay for a child, that would amount to
an illegal adoption. One would apply for adoption at an agency. The agency will
then after an investigation deem the parties suitable or not. Once deemed
suitable, the agency should bring an application to the district court in the
area in which the child resides. This will then result in a formal court
hearing in which the parties will have to convince the court that they are
suitable. The court will look at certain factors, for example, religion and
culture of the child’s natural parents. Even though this is not the determining
factor on whether the parties are suitable to adopt, the best interest of the
child is of utmost importance. The natural parents will sign a consent form,
but in some cases where the biological parent of the child wants to remain private,
they do not need to inform the adoptive parents of their identity.
Once a
valid adoption agreement is concluded the child is regarded as the biological
child of the adoptive parent(s). All the parental rights and responsibilities
the biological parent(s) or previous legal guardian(s) had will terminate. Regardless
of there being no genetic link between the adoptive parents and the adopted
child, the adoptive parents are recognised as being the adopted child’s
biological parents. It must be noted that in most cases children who are
adopted have no genetic link with their adoptive parents. Thus, the law
recognises parental rights and responsibilities of the adoptive parents
regardless of them having no genetic link to the child.