You and Your Rights: Adoption
- Adoption is a permanent arrangement in which a child’s biological parents release all rights to and responsibilities for that child
- Unless a child is under the age of 10, he or she is required to comprehend and consent to the adoption
- Consent from both parents (if not mentally ill or guilty of abandonment, neglect, or abuse) is required before an adoption can take place
- Adoption agencies are not required to disclose a child’s HIV status
- A prospective parent must demonstrate the ability to support a child’s education before he or she is eligible to adopt
What is adoption?
Adoption is when a family or someone other than the child’s biological parents or legal guardian applies to become the legal guardians and parents of the child and to keep the child permanently. Adoption is a permanent situation and the child who is adopted becomes the legal responsibility of the adopting parents. The biological family then releases all rights to the adopted child. It must be remembered that adoption terminates all rights and responsibilities of the biological parents.
What if I am a minor and I want to give my child up for adoption?
Section 233(1)(a) of the Children’s Act provides that the guardian of a parent who is a minor must provide consent to the adoption. In other words the Guardian of the infant must give consent to the adoption.
Which law applies?
Adoption is governed by the Children’s Act 38 of 2005 and where the Children’s Act is silent on an issue pertaining to adoption, we should look to the common law.
When can a child be adopted?
Section 230(3) provides that a child may be adopted if:
- The adoption is in the best interests of the child;
- The child is orphaned or abandoned and has no guardian or caregiver who is willing to adopt the child;
- The parents or guardian cannot be found;
- Where the child has been abused or deliberately neglected by his or her parents or where the parents have allowed any other person to neglect or abuse their child – and where efforts to provide rehabilitative services to the parents have failed;
- The child needs a permanent alternative home.
Who can adopt a child?
Section 231 provides that a prospective adoptive parent must be of majority age (18 years old). They must also be assessed by an adoption social worker to establish if they are capable of exercising and maintaining parental responsibilities and rights in respect of the child.
A person may not be disqualified from adopting a child because of his or her financial status. However, it is important that prospective adoptive parents are able to provide for the adopted child. In this regard, any person who adopts a child can apply for means-tested social assistance such as the Child Support Grant where applicable.
The Children's Act provides a list of persons eligible to adopt a child:
- A married couple can jointly adopt a child;
- Partners in a life-partnership (including same-sex partners) can jointly adopt a child;
- A person who has married or is the permanent life-partner of the natural parent of a child, can adopt the child (adoption of a step-child);
- A single person (a widow or widower or an unmarried or divorced person) can adopt a child;
- A foster parent of a child can adopt him or her;
- And the biological father of a child born out of wedlock can adopt his child.
Who must consent to an adoption?
Many people need to agree to the adoption. Both parents (regardless of whether the parents are married or not) and any other guardian of the child must provide their consent to the adoption.
A social worker must explain everything carefully to the parents of the child. The law also says that the child needs to participate in, and agree to (unless he or she is younger than 10 years old or unable to fully understand the ramifications of adoption), the adoption process. A social worker must talk to the child to see how he or she feels about the adoption.
When is the consent of the parent guardian not required?
Section 236 of the Children’s Act provides that the consent of a parent or guardian is not required if:
- S/he is mentally ill;
- S/he has abandoned the child;
- S/he has neglected or abused the child
- S/he has failed to exercise any parental duties for a full year;
- S/he has failed to respond to a notice of the proposed adoption within 30 days
- And if the identity of the parent or guardian is not known.
If a child is an orphan, the court will need proof that the child has no parents. The death certificates must be shown.
How does the adoption process work?
The adoption process is long and complex. First, you must apply to an adoption agency. A social worker from the agency will assess your suitability as a prospective adoptive parent.
If you have made contact with a mother who wishes to give her child up for adoption without going through an agency, you need to contact a social worker to help ensure that the adoption is legal.
If an agency finds a child for you to adopt, you need to apply to the Children's Court in the district in which the child lives. The Children's Court will hold a formal court hearing that is closed to the public.
You need to satisfy the Commissioner of Child Welfare that you:
- Have a good reputation;
- Are fit to have custody of the child;
- Can support the child;
- And can educate the child.
If the Commissioner is satisfied, an adoption order will be issued. The adoption order might only be issued months after you first apply.
Post Adoption Agreements
In many cases, an agreement can be reached between the biological parent/s and prospective adoptive parents to allow contact with the child or to share information about the child. These types of agreements are called “post-adoption agreements”.
The social worker facilitating the adoption must assist the parties in preparing a post-adoption agreement. Such agreements may not be entered into without the consent of the child if the child is of an age where they can understand the agreement. The agreement should then be made an order of court so that it can be enforced.
Can an adoption order be cancelled?
Section 243 provides that the court, in limited circumstances, can cancel an adoption order if an application is made by the adopted child, a biological parent, or a person who was the guardian of the child before the adoption. This application must be submitted within two years of the date of the adoption.
An adoption order can only be cancelled if:
- It is in the child’s best interests;
- The applicant is a parent whose consent was required but not reasonably obtained;
- At the time of the adoption, the adoptive parent didn’t qualify to be an adoptive parent.
HIV/AIDS and adoption
Prospective parents often want to know whether the child they are going to adopt is HIV positive. The law does not require the adoption agency to tell the parent this information as the child should be protected from discrimination. However, some agencies will disclose it.
There is no legal requirement for prospective parents to be tested for HIV. However, some adoption agencies will not consider prospective parents who are HIV positive and may demand that the applicants, child and birth mother be tested before they will proceed with an adoption. It is important to remember however that HIV testing is not something that the law demands when it comes to adoption.
The Children’s Act makes provision for inter country adoption. South Africa recognizes two kinds of adoptions by foreign nationals:
- Adoptions by foreign nationals who have been permanent residents of South Africa for 5 years or more. The adoptions must be handled by an accredited agency and finalised by the Department of Social Development.
- The second instance is when a foreign national, living outside of South Africa, adopts a South African child.
Since 2003, South African has subscribed to the Convention on the Protection of Children and Co-operation in respect of inter-country adoption. The Hague Convention regulates inter-country adoptions in order to prevent child trafficking and kidnapping.
According to the Hague Convention, only people from countries that subscribe to the convention can adopt South African children. Each country which subscribes to the Hague Convention must have a central authority regulating this kind of adoption and only reputable non-governmental organisations may set up and manage these adoptions.
If money changes hands, it must go to the organisation (not to individuals). Up to 5 years after the adoption, social workers in that country must submit regular reports to the South African body.