Van Zyl Retief

‘The best interests of a child’ is a concept deeply entrenched in our legal system – especially since the new constitutional dispensation. Section 28(2) of the Constitution provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The best interest of a child is similarly of paramount importance in the adoption procedure.

Adoption is the process whereby someone, over the age of 18, applies to court to be deemed as a child’s parent. The importance of recognizing the child’s best interests in the adoption procedure is acknowledged in the Children’s Act 38 of 2005 (“the Act”). The Children’s Act enunciates the purpose of adoption as to protect and nurture children by providing a safe, healthy environment with positive support, and to promote the goals of permanency planning by connecting children to safe and nurturing family relationships.

If you are considering adopting, your first port of call should be to approach an adoption agency. The agency will screen you and ascertain whether there are any children available for adoption. If the agency is satisfied with the screening results, they will put you on a Register of Adoptable Children and Adoptive Parents. The agency will then call you to come into their offices if there are any children up for adoption.

A social worker must conduct an interview with the purpose of compiling a report containing information on whether the child can be adopted, the eligibility of the prospective parents, medical information in relation to the child and whether the adoption is in the child’s best interest. The sheriff of the court must then serve a notice on the person(s) required to give consent to the adoption.

The following person(s) must give consent to the adoption:

  • Each parent of the child and/or every legal guardian must give their consent.
  • If the child is older than ten years, they must also give consent.
  • If the child is younger than 10 years of age, their consent will only be required if they have the maturity and understanding to consent to the adoption.
  • Consent must be reduced to writing, signed by the person giving the consent and verified by the Children’s Court.

A person who gave consent to an adoption, however, has up to sixty days to withdraw their consent after they have given it. There are certain circumstances when consent is not required.

The application for the adoption of a child can be made in the Children’s Court and must be accompanied by the social worker’s report, a letter from the provincial head of Social Development, and the applicable consent forms. The presiding officer of the Children’s Court must take certain factors into account before considering whether to allow the adoption. Importantly, the presiding officer must consider whether adoption is in the best interests of the child.

Section 242 of the Act states the following legal consequences of adoption:

  • Full parental responsibilities and rights in respect of the adopted child are conferred upon the adoptive parent;
  • The adoptive parent’s surname is conferred upon adopted child, except when otherwise provided in the adoption order;
  • Any marriage and/or sexual intercourse between the adopted child and any other person which would have been prohibited had the child been the adoptive parent’s biological child, is not permitted.
  • Any rights to property that the adopted child acquired before the adoption is not affected.
  • The parental responsibilities and rights of the parent of the adopted child is not automatically terminated when an adoption order is granted in favour of the spouse or permanent domestic life partner of that parent.

An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child. The legal consequences would therefore be the same as that between a biological parent and child.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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