A child’s best interests and the adoption procedure
‘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)
Is it truly in the best interest of the child?
Section 28(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) states that a child’s best interests are of paramount importance in every matter concerning a child. Courts are thus mandated by the Constitution, which is the highest law in the land, to always give effect to what would be best for the child. This article will briefly consider and analyse this right as contained in our Bill of Rights in order to establish how the best interests of a child are determined by the courts. Any attempt to define the constitutional right as enshrined in section 28(2) of the Constitution should commence with a discussion of the Children’s Act 38 of 2005 (“the Act”). The Act was specifically adopted to give effect to certain rights of children as contained in the Constitution and to set out principles relating to the care and protection of children. Section 7 of the Act sets out factors which must be considered when the best interests of the child standard are applied. These factors are: “(a) the nature of the personal relationship between— (i) the child and the parents, or any specific parent; and (ii) the child and any other care-giver or person relevant in those circumstances; (b) the attitude of the parents, or any specific parent, towards— (i) the child; and (ii) the exercise of parental responsibilities and rights in respect of the child; (c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs; (d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from— (i) both or either of the parents; or (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis; (f) the need for the child— (i) to remain in the care of his or her parent, family and extended family; and (ii) to maintain a connection with his or her family, extended family, culture or tradition; (g) the child’s— (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child; (h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (i) any disability that a child may have; (j) any chronic illness from which a child may suffer; (k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; (l) the need to protect the child from any physical or psychological harm that may be caused by— (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; (m) any family violence involving the child or a family member of the child; and (n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.” The High Court has, with reference to the factors set out above, stated that the list “constitutes a non-exhaustive checklist of criteria which serve as guides relevant to the application of the best interest standard”. 1 It is accordingly clear that courts can consider any relevant factor when determining what the best interests of a child are. Courts may accordingly have recourse to any source of information of whatsoever nature when determining what would be in a child’s best interest. The “child’s best interests should [accordingly] not be mechanically sacrificed on the altar of jurisdictional formalism”. 2 The High Court is the upper guardian of children in South Africa and should not let legal niceties frustrate it in ensuring that a child’s best interest is protected and advanced in any matter before it. 3 This means, in short, that a court should have regard for any evidence and factors placed before it, and should allow parties to a dispute concerning a child as much leeway as possible to introduce relevant evidence. Courts can allow this due to its extremely broad powers in establishing what is in the best interests of a child in any given matter. 4 This will place the court in the best possible position to protect children. There are also other legislative interventions aimed at protecting and advancing the best interest of children. One such example is the Mediation in Certain Divorce Matters Act 24 of 1987 (the Mediation and Divorce Act”). The Mediation and Divorce Act contributes to advancing the best interests of children in South Africa by making provision for the appointment of a Family Advocate by the Minister of Justice and Constitutional Development. The Family Advocate is, in terms of section 4 of the Mediation and Divorce Act, responsible for conducting an enquiry in divorce matters and thereafter furnish the court with a report and recommendations concerning the welfare of the minor children in any marriage about to be dissolved. This advances the best interests of children since the evidence is placed before the court by an independent third party who does not have a personal interest in the matter. In conclusion, the best interests of any child are always of paramount importance in any matter concerning the child and must be given effect to. The legislator has adopted various pieces of legislation, in line with international conventions, in order to advance this constitutional right. What would be in a child’s best interest is a factual inquiry and courts should consider as much evidence as possible, including expert evidence by trained professionals, when considering this constitutional right. Reference List: Constitutional of the Republic of South Africa, 1996. Children’s Act, 38 of 2005. Mediation in Certain Divorce Matters Act, 24 of 1987. AD and another v DW and others (Centre for Child Law as amicus curiae; Department for Social Development as intervening party) [2007] ZACC B v B (CA&R60/2017) [2018]