Court cases highlight need to protect children during adoption
Two cases that have been heard by the North and South Gauteng High Courts in which adoptive parents have applied to the Courts for the rescission of adoption orders have highlighted the need for government to review the child adoption process.
This is why the Department of Social Development has proposed amendments to the Children’s Act (Act 38 of 2005) in order to allow social workers employed by the Department or Provincial Department of Social Development to process child adoption applications as opposed to these being done only by adoption agencies.
Social workers employed by the Department work directly with communities, households or families as well as individuals or children and, as such, have an intimate understanding of the circumstances of the children they work with. It is the view of the Department, therefore, that social workers must play a role in the adoption process to reduce the risk of failed adoptions.
In both cases the adoptive parents had been assessed and granted orders to adopt the children but had a few years later filed papers, for different reasons, requesting the Courts to reverse these orders.
Whilst there is legal provision under Section 243(1)(c) of the Children’s Act 38 of 2005 that “A High Court or Children’s Court may rescind an adoption order on application by the adoptive parent of the child”, Subsection 2 of the Act also provides that “the application must be lodged within a reasonable time but not exceeding two years from the date of the adoption.”
In both cases the two year period had lapsed at the time of lodging applications to rescind the adoption orders.
The Minister of Social Development, Ms Bathabile Dlamini, says whilst the rescission of adoption orders are legally provided for, it must be acknowledged that the instability created by this process is not good for the wellbeing of the adopted children.
“The Children’s Acts enjoins us always to do what is in the best interest of the child. It is obviously highly unfortunate when adoptive parents entrusted with the wellbeing of children request a court of law to set aside an adoption order that was meant to be for life after spending only a few years with the children,” said Minister Dlamini.
It is the requirement of the Children’s Act that the prospective adoptive parents must be assessed by an adoption social worker to determine if they can be entrusted with full parental responsibilities and rights in respect of the child; and if they are willing and able to undertake, exercise and maintain those responsibilities and rights.
The assessment of prospective adoptive parents also helps to ensure that the persons who are unsuitable to work with children are barred from adopting children as according to Section 231(5) of the Children’s Act they are not fit and proper to adopt a child.
“Children who are placed in the adoption system would have already been through difficult circumstances as orphaned and vulnerable children. For them to be uprooted again can have a detrimental effect on their psychological wellbeing. We urge South Africans who want to adopt children to carefully consider their decision before approaching a court,” Minister Dlamini said.
In October 2014, Minister Dlamini appointed the Ministerial Committee on foster care to determine the contributing factors to the challenges experienced within the foster care system and advise the Minister on measures that may be considered to improve the quality of foster care services. The work of the Committee is an important part of the Department’s efforts to respond more innovatively to challenges in society through Project Mikondzo.
Since 2003, 23 882 South African children have been adopted. 88% of these have been adopted by South Africans, whilst the rest were inter-country adoptions.
Over the past seven years, the Department of Social Development has also repatriated back to South Africa 13 children born to South African mothers in detention abroad.
South Africa commemorates Child Protection Week between 31 May and 1 June 2015. Child Protection Week ushers a period in which all South Africans could ensure that children are protected from all forms of abuse, neglect and exploitation.
Enquiries:
Lumka Oliphant
Cell: 083 484 8067
Email: lumkao@dsd.gov.za
