An Article: Inter-country adoptions in South Africa and the impact thereupon of covid-19.
By S Mnisi 010592 2321
Inter-country adoption entails placing a child habitually resident in one country in a permanent care of another person residing in another country in which the parental rights and responsibilities are transferred from a birth parent or parents to the adoptive parents across international borders. 1
COVID-19 has affected everyone’s lives one way or another and as a result South Africa is faced with a number of challenges, such as the prohibition of inter-country adoptions during lockdown. According to paragraph 6 of the Social Development Regulations Inter-country adoptions are suspended during the state of national disaster. 2
Law regulating inter-country adoption:
Article 21 of the Convention on the Rights of the Child 1989 governs inter-country adoption between countries. Section 21 provides that countries shall ensure that the adoption of a child is authorised only by competent authorities who by applicable law and procedures, and on the basis of all pertinent and reliable information determine that the adoption is allowed in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary. 3
Countries have to “recognise that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.” 4
It must be ensured that a child who is considered for inter-country adoption enjoys protection and standards equivalent to those existing in the case of domestic adoption. 5
Furthermore, countries need to take proper measures to make certain that inter-country adoption placements do not result in improper financial gain for those involved. 6
Article 24 of the African Charter on the Rights and Welfare of the Child 1990 provides that, countries need to recognise that inter-country adoption in those countries who have ratified or adhered to the International Convention on the Rights of the Child or this Charter, may, as the last resort, be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.7
The countries have to make sure that a child affected by inter-country adoption is protected and benefits from the standards equivalent to those existing in the case of domestic adoption. 8
In addition, they have to take all suitable measures to make certain that the placement of a child in inter-country adoption does not result in trafficking or improper financial gain for those who try to adopt a child. 9
Article 4 of the Hague Inter-country Adoption on the Protection of Children and Co-operation in respect of Inter-country Adoption 1993 provides that “an adoption should take place if determined by the competent authorities in the State of origin that it is in the best interests of the child.” 10
In terms of Section 230 (1) (a) of the Children’s Act 38 of 2005, a child may be adopted if it is in the best interests of the child. 11
Section 230 (3) of the Children’s Act provides that a child is adoptable if : 12
a) The child is an orphan and has no guardian or caregiver who is willing to adopt the child.
b) The whereabouts of the child’s parent or guardian cannot be established.
c) The child has been abandoned.
d) The child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected.
e) The child is in need of a permanent alternative placement.
Section 231(1) of the Children’s Act states that a child may be adopted jointly
by:
(i) A husband and wife;
(ii) Partners in a permanent domestic life-partnership; or
(iii) Other persons sharing a common household and forming a permanent family unit;
b) By a widower, widow, divorced or unmarried person.
c) 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.
d) By the biological father of a child born out of wedlock; or
e) by the foster parent of the child.
In terms of Section 67 (1) of the Children’s Act the age requirements in respect of persons who are eligible to adopt, applicants should be 25 years of age and at least 21 years older than the child. 13
Process of adoption:
The Children’s Act embodies the similar adoption procedure contained in the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption 1993. A person habitually resident in a convention country who intends to adopt a child habitually resident in the Republic, the person needs to apply to the Central Authority in their country. 14
Thereafter, the Central Authority of the Convention country will prepare a report on that person only if it is content that the applicant is fit and eligible to adopt, and that report is sent to the Central Authority of the Republic. 15
However, where there is no competent authority in the potential adoptive parent or parent’s country, they can contact International Social Services in their country to facilitate the adoption. 16
The ISS is an international non-profit organisation established to focus on vulnerable expatriate children, with a network of national branches, social workers, affiliated bureaus and correspondents across 140 countries.
In the event that South Africa is a receiving State from a Convention Country a prospective adoptive parent or parents wishing to adopt a child must apply to the Central Authority in the Republic for the matter to be referred to an accredited child protection organisation. If the prospective parent or parents are eligible once the screening and assessment process has been done, the child protection organisation will compile a comprehensive report and send it to the Central or Competent authority of the sending state in order to match the child with the prospective adoptive parents. 17
Thereafter, the foreign Central Authority “will, in turn, investigate and compile a child study report and send it to South Africa.” 18
The adoption process is as follows: 19
1. Contact the Central Authority in the country where you live.
2. The Central Authority will refer you to an adoption organisation in your country for assessment and screening to determine if you are suitable to adopt a child.
3. If the protection organisation finds you to be fit and proper to adopt, it will compile a comprehensive home study report and forward it to the South African Central Authority (Saca).
4. The Saca will forward the report to the child protection organisation which has an adoption working agreement with the foreign organisation to look for a child who is available for adoption.
5. If there is a child who is available for adoption, the child protection organisation will compile a child study report and forward it to the Saca for approval for inter-country adoption (Article 17).
6. The child protection organisation in South Africa will forward the report to the foreign organisation to match the child with the prospective parents.
7. If you are still interested in the adoption, the Central Authority in your country of residence, grant you permission to adopt in terms of Article 17.
8. The permission from your country’s Central Authority will be sent to the accredited child protection organisation in South Africa. The child protection organisation will inform you to travel to South Africa for the finalisation of the adoption in the children’s court.
9. The court will finalise the adoption and court documents will be forwarded to the Saca for verification and registration of the adoption.
10. The Saca will then issue the Certificate of Conformity.
11. The adoption organisation the country where you live will provide you with after-care services for five years.
The Children’s Court in the district where the child lives has the power to grant an adoption order. A prospective parent or parents who wish to adopt a child have to complete the relevant application form, which you can get from the clerk of the children’s court. 20
The application form must be accompanied by a certified copy of the child’s birth certificate or identity document, a copy of your ID, and a copy of the social worker’s report stating that you are eligible to adopt. 21
The nationwide lockdown has affected everyone’s lives, including all child protection organisations that work with abandoned babies and unplanned pregnancies.22
These organisations were faced with the challenge of raising funds. Further, “adoption processes are being delayed due to the limited functioning of the Department of Social Development and Justice, the lockdown of most homes and worldwide travel restrictions.” 23
This has been a real challenge because it usually takes several months for all the necessary legal requirements to make a baby adoptable and during this period, the babies and young children need to be cared for in temporary, safe, care facilities or child and youth care facilities. 24
Footnotes:1.Martin J “The Good, the Bad & the Ugly? A new way of looking at the intercountry debate” 2007 UCDJILP 176. 2.Disaster Management Act: Social development directives: Amendment NO. R. 517 09 MAY 2020.3. Section 21(a) of the Convention on the Rights of the Child 1989. 4. Section 21(b) of the Convention on the Rights of the Child 1989. 5. Section 21(c) of the Convention on the Rights of the Child 1989. 6. Section 21(d) of the Convention on the Rights of the Child 1989. 7. Article 24(b) of the African Charter on the Rights and Welfare of the Child 1990.8. Article 24(c) of the African Charter on the Rights and Welfare of the Child 1990.9. Article 24(d) of the African Charter on the Rights and Welfare of the Child 1990. 10. Article 4 (b) of the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption 1993. 11. Section 230 (1) (a) of the Children’s Act 38 of 2005. 12. Section 230 (3) of the Children’s Act 38 of 2005.13. Section 67 (1) of the Children’s Act 38 of 2005. 14. Section 261 (1) of the Children’s Act 38 of 2005. 15. Section 261 (2) of the Children’s Act 38 of 2005. 16. https://www.gov.za/services/adopt-child/intercountry-family-adoption 17. Section 264 of the Children’s Act 38 of 2005.18. https://www.gov.za/services/adopt-child/intercountry-family-adoption19. https://www.gov.za/services/adopt-child/adopt-child-convention-country20. Nagtegaal M “Adoption in South Africa” 2014. 21. Nagtegaal M “Adoption in South Africa” 2014. 22. Wilson P “Opinion: The impact of Covid-19 and the lockdown on child protection and adoption” 2020.23. Fairvale “Child protectors express adoption challenges during lockdown” 2020. 24. Fairvale “Child protectors express adoption challenges during lockdown” 2020.
Disclaimer: this article does not constitute, nor should it be construed as the, giving og legal advice and it is recommended that you contact one of our attorneys 010 592 2321
