The recognition of children’s entitlement to special care, protection, and assistance as proclaimed in the Universal Declaration of Human Rights is echoed in international instruments such as the United Nations Convention on the Rights of the Child (1989), in regional instruments such as the African Charter on the Rights and Welfare of the Child (1990), and included in the South Africa’s Children’s Act 38 of 2005.
The family as a social unit is viewed as the ideal environment to allow children to grow and flourish to their full potential. Many children, unfortunately, find themselves without adequate parental care or outside of a suitable family environment. Alternative care measures such as adoption afford children who cannot live with their parents an opportunity they would otherwise not have to grow up in a loving home setting. Whether or not adoption or an alternative care measure is in the best interests of a child, must be determined on a case by case basis.
In the evaluation of the suitability of adoption as an alternative care option, the principles of non-discrimination based on age, marital status, race, culture, sex, and sexual orientation as entrenched in the Constitution of South Africa apply. There are, however, certain requirements that must be met including that the potential adoptive parent(s):
- must be over the age of 18;
- must be South African citizens or permanent residents;
- be fit and proper to be entrusted with full parental responsibilities and rights in respect of the child and be willing to undertake, exercise, and maintain those responsibilities and rights;
- be properly assessed by an adoption social worker.
There are two main types of adoption in South Africa: Disclosed/open adoptions when the prospective adoptive parents know the birth parent(s), as in the case of family-related or step-parent adoptions; or Non-disclosed/closed adoptions in which case the identities of the biological parent(s) are not known to the prospective adoptive parents.
To legally adopt a child in South Africa, it is necessary to work through an accredited adoption agency or seek the assistance of an adoption social worker. The social worker is required to conduct an assessment to determine whether a child is adoptable as would be the case if a child is placed for adoption by the birth parents if the child has been abandoned if no guardian or caregiver is willing to adopt the child and/or they cannot be traced, the child has been abused or deliberately neglected by the parents or guardians or they have allowed the child to be abused or deliberately neglected, or the child requires a permanent alternative placement.
Potential adoptive parents often face a time-consuming and sometimes frustrating process, which starts with an application to the agency or social worker. The initial intake and screening of potential adoptive parents undertaken by the agency or social worker, which can take a few months, is comprehensive and includes orientation meetings, interviews and home visits to assess personal circumstances, full medicals, marriage and psychological evaluations, the obtaining of police clearance certificates, and checks through the National Sexual Offences Register. After the initial intake and screening process, the prospective adoptive parents are placed on a waiting list. They may express their wishes about the child they wish to adopt including the age or gender of the child and/or their willingness to adopt a special needs child. Once a child is matched with the prospective adoptive parents, arrangements are made for the introduction of the child to the prospective adoptive parents and the legal process to officially place the child with then follow. After the initial intake and screening process, it can take 1 to 2 years between the matching phase and the finalisation of the adoption order.
Adoptions have to be approved by the Department of Social Development and then formalized by a Magistrate in the Children’s Court by the granting of an adoption order once the entire process has been reviewed and the adoption has been approved. The social worker or agency and the Children’s Court must be satisfied that the adoption is in the child’s best interests. The adoption order severs the legal relationship between the child and the biological parents, the child’s surname is changed and the child is declared legally, to be the child of the adoptive parents. The final step is for the adoption order to be sent for registration to the Registrar of Adoptions.
Birth parents may not be compensated, in cash or kind, for placing their child for adoption. The Children’s Act makes provision for certain categories of costs relating to the adoption process which may vary depending on the different organisations facilitating the adoption, and whether the adoption is processed by child welfare, a government-subsidized agency, or a private social worker. The fees are generally monitored to ensure that they remain reasonable and commensurate with the services provided. These costs relate inter alia to medical and psychological assesments and police clearance certificates. The cost aspect may be subject to amendment as the Children’s Amendment Bill aims to amend the provisions to eliminate the charges for all services whether legal, social work, therapy, medical, and other costs associated with adoption.