Family Law

What Is The Adoption Process In South Africa?

Whether you are a hopeful parent wanting the opportunity to raise a child you otherwise wouldn’t have been able to, or you are a couple struggling with infertility, the ability to adopt a child in South Africa is an endlessly rewarding and meaningful way to build your family.

In South Africa particularly, the need for qualifying parents to adopt children in need is at an all-time high and it can be a daunting process. Certain strict requirements must be met to make it to the proverbial finish line in the adoption process, and to be able to welcome a new beautiful child into your family. In this article, we will explain the process as simply as possible so that you have a relatively good understanding of the process.

Be warned, it can be a long process, but deciding to adopt is ultimately one of the most rewarding decisions you will ever make! After reading this article, perhaps you will be motivated to give all the love you can to a child who so desperately needs such love!

What is the legal framework?

Chapter 15 of the Children’s Act 38 of 2005 (“the Act”), regulates the requirements surrounding adoption in South Africa. It includes who may be adopted, who are the qualifying persons to adopt and the factors the Court looks at when determining if a child may be adopted, to name a few.

Who may be adopted?

Any child may be adopted if the adoption is in the best interests of the child, the child is adoptable and the provisions of Chapter 15 of the Act have been complied with.

An assessment by an adoption social worker is required in order to determine whether a child is adoptable, however, in terms of the Act, a child is adoptable if:

  • the child is an orphan and has no guardian or caregiver who is willing to adopt the child;
  • the whereabouts of the child’s parent or guardian cannot be established;
  • the child has been abandoned and has had no contact with his or her parent or guardian for at least three months;
  • the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be exposed to such behavior; or
  • the child is in need of a permanent alternative placement.

Once it is determined that a child is adoptable, his or her name and other identification details are entered into the Register on Adoptable Children and Prospective Adoptive Parents.

Is consent always required?

In order for a child to be adopted, the Act requires that certain parties consent to the adoption, but consent is not required in all instances.

According to the Act, a child may only be adopted if written consent for the adoption has been given by:

  • both parents, regardless of whether the parents are married, but provided that, if the parent is a child, he or she is assisted by his or her guardian;
  • any other person who holds guardianship in respect of the child; and
  • the child, if the child is over the age of 10 or, if under the age of 10, is of an age, maturity and stage of development to understand the implications of such consent.

An individual who has given consent to the adoption is entitled, within a period of 60 days from the date on which such consent is given, to withdraw his or her consent and the adoption may not be finalised until this period has expired.

Where an adoption order is granted in the absence of consent by the biological parents or guardian, they are able to apply to the Court to have the adoption order rescinded. An application of this kind must be made within a reasonable time of the biological parent or guardian becoming aware of the adoption and no later than two years from the date of the adoption order.

However, it is clear that consent may not always be obtainable in certain instances, such as when both parents have passed away and the child has no guardian or caregiver who is willing to adopt him or her.

The Act also provides for further circumstances in which the consent of the child’s parents or guardian is not required. These circumstances include those where the parent or guardian:

  • is incompetent to give consent due to mental illness;
  • has abandoned the child or if their whereabouts cannot be established or their identity is unknown;
  • has abused or deliberately neglected the child or has allowed the child to be abused or deliberately neglected by someone else;
  • has failed to fulfil their parental rights and responsibilities in the past 12 months;
  • has been deprived by an Order of Court of the right to consent to the adoption;
  • has not responded to a notice of the proposed adoption within a period of 30 days after receiving such notice.

There are also circumstances in which the consent of the biological father of the child, in particular, is not required. These include those where the:

  • biological father of the child is not, and has never been, married to the child’s mother and has not acknowledged that he is the biological father of the child;
  • child was conceived by way of an incestuous relationship with the child’s mother;
  • Court has found, following an allegation by the mother of the child, that the child was conceived as a result of the rape of the child’s mother.

Finally, a Court is also entitled to exclude a parent or guardian from giving consent to the adoption of a child where the exists a ground upon which to do so.

Who is eligible to adopt a child?

Once a child is available for adoption, the parents wishing to adopt such child also need to qualify in terms of the Act and they need to be eligible to adopt a child.

The Act states that the following persons may adopt a child:

  • A husband and wife / partners in a permanent domestic life-partnership or other persons sharing a common household and forming a permanent family unit;
  • A widower, widow, divorced or unmarried person;
  • A married person whose spouse is the parent of the child (i.e. a step-parent);
  • The biological father of a child who does not have guardianship in respect of the child;
  • A foster parent of the child; or
  • A family member of the child who, prior to the adoption, has given notice that he or she is interested in adopting the child.

An adoption social worker, when conducting an assessment as to the eligibility of a prospective adoptive parent, is entitled to take the cultural and community diversity of the adoptable child and prospective adoptive parent into consideration, however, the financial status of the prospective adoptive parent cannot give rise to the disqualification of such person from adopting the child in question.

Once it is determined that an individual is eligible to be a prospective adoptive parent, their name and other identification details are entered into the Register on Adoptable Children and Prospective Adoptive Parents. However, the individual must be a citizen or permanent resident of South Africa registered and such registration is only valid for three years.

Who can provide adoption services?

One needs to make sure that adoption services are provided by persons who are authorised to do so in terms of the Act.

The following persons are authorised to provide such services:

  • An accredited child protection organization authorised to provide adoption services;
  • An adoption social worker;
  • The central authority in the case of an inter-country adoption; or
  • An accredited child protection organization authorised to provide inter-country adoption services.

However, the above does not prohibit a lawyer, psychologist or other similar professional from rendering services in connection with the adoption of a child.

What factors does the Court consider when deciding in favour of an adoption?

An application for the adoption of a child is made to the Children’s Court and, when considering the application, the Court will take into account various factors when deciding whether to grant an adoption order.

The Court requires the prospective adoptive parent to be:

  • fit and proper to be entrusted with full parental responsibilities and rights in respect of the child;
  • willing and able to understand, exercise and maintain the parental rights and responsibilities in respect of the child;
  • over the age of 18; and
  • properly assessed by an adoption social worker for compliance with point 1 and 2.

The Court will consider the following factors:

  • The religious and cultural background of the child, the child’s parents and the prospective adoptive parents;
  • All reasonable preferences expressed by a biological parent and stated in the consent (if applicable);
  • The report done by an adoption social worker containing information such as:
    • whetherthe child is adoptable;
    • whether the adoption is in the best interests of the child; and
    • medical information in relation to the child.
  • Whether or not the adoption is in the child’s best interests.

Where no one has opposed the adoption application and the Court is satisfied that the above requirements have been met, the Court will grant the adoption order in the absence of a formal court hearing. However, a formal hearing is required where the adoption application is met with opposition or where the social worker’s report is insufficient for the Court to make an informed decision.

What are the effects of an adoption once finalised?

 Once the adoption of a child is finalised, such child is considered, for all purposes, to be the child of the adoptive parent. An adoption order provides the adoptive parent with full parental rights and responsibilities in respect of the child and confers the surname of the adoptive parent on the adopted child, except where otherwise provided in the adoption order. Importantly, an adoption order does not affect any rights to property which the child may have acquired prior to the adoption.

The possibility exists, however, for the biological parent or guardian of a child to enter into a post-adoption agreement with the adoptive parent prior to the adoption application being made. The post-adoption agreement can provide for continued communication and visitation between the child and the biological parent or guardian and any other person as may be stipulated in the agreement. A post-adoption agreement may not be entered into without the consent of the child where the child is of an age, maturity and stage of development to understand the implications thereof.

Except where otherwise provided for in terms of the adoption order and/or a post-adoption agreement confirmed by the Court, an adoption order terminates all parental rights and responsibilities that any person, including a biological parent, step-parent or partner in a domestic life partnership, had in respect of the child prior to the adoption and, in addition, any family member to such person no longer has any claim to contact with the child.

What should you do if you want to adopt a child?

If you would like to begin the relatively long, but extremely rewarding, process of adopting a child, an accredited adoption agency should be contacted who will begin with the screening process and help you look for a child who is available for adoption.

A Family Law Attorney is also able to assist with the process of finding an accredited adoption agency if you do not know where to begin.

For more information on Adoption and the Adoption process in South Africa, contact JJB Attorneys for assistance on +27 68 164 8928 as well as via email at info@jjbattorneys.co.za.

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