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.
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, or 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.
Please note that the parent of a child who has given consent to the adoption of the child has the right to withdraw such consent for up to 60 days after the consent has been given. The Children’s Court will not make any order of adoption final before the period of 60 days has expired.
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.
For more information regarding adoptions, please contact:
Kobus Pieterse | Partner
Areas of Expertise: Litigation | Family Law | Curatorship Applications
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)