05 November 2018
271
The adoption process is regulated in South Africa by
the Children’s Act 38 of 2005 (“the Act”). Adoption is one of the ways to help give
abandoned minors a permanent or stable family life, which they would
otherwise not have had. The Act provides that a child is adopted if
the child has been placed in the permanent care of a person in terms of a Court
order. Section 28(2) of the Constitution of the Republic of South Africa
provides that every matter concerning a child, is of paramount importance.
Who can adopt?
A child
may be adopted 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. The Act goes further to say that a child may be adopted
by a widower, widow, divorced or unmarried person, by a married person whose
spouse is the parent of the child or by a person whose permanent domestic
life-partner is the parent of the child, by the biological father of a child
born out of wedlock, or by the foster parent of the child.
In terms
of the Act, a prospective adoptive parent must be a fit person to be entrusted
with full parental responsibilities and rights in respect of the child, willing
and able to undertake, exercise and maintain those responsibilities and rights,
over the age of 18 years old, and properly assessed by an adoption social
worker.
What does the process entail?
A child
may be adopted only if consent for adoption has been given by each parent of
the child, regardless of whether they are married or not, or by the guardian of
the child, the child – if the child is 10 years or older, or if the child is
under the age of 10 years old but at an age to understand the implications of
such consent.
If the
parent of a child wishes the child to be adopted by a particular person, the
parent must state the name of that person in the consent. Before consent for
the adoption of the child is granted, the adoption social worker facilitating
the adoption of the child must counsel the parents of the child and, where
applicable, the child, on the decision to make the child available for
adoption. The eligibility of the prospective adoptive parent must be determined
by the Children’s Court.
The
consent to adopt must be signed by the person consenting in the presence of a
presiding officer of the Children’s Court, and signed by the child in the
presence of the presiding officer (if consent of the child is required). The
consent to adopt must then be verified by the presiding officer and filed by
the clerk of the Children’s Court pending an application for the adoption of
the child.
In certain
circumstances, consent of the parent or guardian of the child to the adoption
is not required, for example, where the parent or guardian is incompetent to
give consent due to a mental illness, has abandoned the child, or if the
whereabouts of the parents cannot be established, or if the identity of the
parents are unknown, if the parents abused or neglected the child, failed to
fulfil his or her parental responsibilities towards the child during the last
12 months, has been divested by an order of Court of the right to consent to
the adoption of the child, and/or has failed to respond to a notice of the
proposed adoption within 30 days of service of the notice. The Act lists
further exceptions where consent is not required.
In terms
of the Act, notice must be given by the presiding officer to each person whose
consent to the adoption is required. If such person fails to comply with the
request contained in the notice within 30 days, the person will be regarded as
having consented to the adoption.
The application
An application
for the adoption of a child must be made to the Children’s Court, and
accompanied by a report by the social worker. The report must contain
information on whether the child is adoptable, whether the adoption is in the
best interest of the child, and medical information in relation to the child.
The application must also be accompanied by an assessment referred to in
Section 231 of the Act and a letter by the provincial head of social
development recommending the adoption of the child.
A Court
considering the adoption of a child must be satisfied that all the requirements,
as set out above, have been met and that the adoption of the child is in the
best interest of the child.
All prospective
adoptive parents are required to comply with the requirements as set out in the
Act to ensure a successful application.