Adoption in South Africa: Understanding the Legal Process
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 explain the process as simply as possible so that you have a clear understanding of how adoption works.
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 qualifies to adopt, and the factors the Court considers when determining whether a child may be adopted.
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 to determine whether a child is adoptable. In terms of the Act, a child is adoptable if:
- the child is an orphan and has no guardian or caregiver 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 a parent or guardian for at least three months;
- the child’s parent or guardian has abused or deliberately neglected the child, or allowed the child to be exposed to such behaviour; or
- the child is in need of a permanent alternative placement.
Once it is determined that a child is adoptable, their name and identifying 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 certain parties to consent to the adoption. However, consent is not required in all circumstances.
A child may only be adopted if written consent has been given by:
- both parents, regardless of marital status, provided that if the parent is a minor, they are assisted by their 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 10, is sufficiently mature to understand the implications of consent.
A person who has given consent may withdraw it within 60 days from the date consent was given. An adoption may not be finalised until this period has expired.
If an adoption order is granted without the consent of a biological parent or guardian, they may apply to the Court to rescind the adoption order. This application must be made within a reasonable time after becoming aware of the adoption and no later than two years after the adoption order was granted.
Consent may not always be obtainable, for example where both parents have passed away and no guardian or caregiver is willing to adopt the child.
The Act also allows the Court to dispense with consent where the parent or guardian:
- is incompetent to give consent due to mental illness;
- has abandoned the child or their whereabouts cannot be established;
- has abused or deliberately neglected the child;
- has failed to fulfil parental responsibilities during the previous 12 months;
- has been deprived by a Court order of the right to consent to the adoption; or
- fails to respond to a notice of the proposed adoption within 30 days.
There are also circumstances where the consent of the biological father is not required, including where:
- the father was never married to the child’s mother and has not acknowledged paternity;
- the child was conceived through an incestuous relationship; or
- a court finds that the child was conceived as a result of rape.
A court may also exclude a parent or guardian from giving consent where there are valid legal grounds to do so.
Who is Eligible to Adopt a Child?
Once a child is available for adoption, prospective adoptive parents must also qualify in terms of the Act.
The Act states that the following persons may adopt a child:
- a husband and wife or partners in a permanent domestic life partnership forming a family unit;
- a widower, widow, divorced or unmarried person;
- a married person whose spouse is the parent of the child (a step-parent);
- the biological father of a child who does not have guardianship;
- a foster parent of the child; or
- a family member who has expressed interest in adopting the child.
An adoption social worker assesses prospective parents and may consider the cultural and community background of both the child and adoptive parents. However, financial status alone cannot disqualify someone from adopting.
Eligible adoptive parents are entered into the Register on Adoptable Children and Prospective Adoptive Parents. The individual must be a South African citizen or permanent resident, and registration remains valid for three years.
Who Can Provide Adoption Services?
Adoption services must be provided by authorised persons in terms of the Act.
The following may provide adoption services:
- an accredited child protection organisation authorised to provide adoption services;
- an adoption social worker;
- the central authority for inter-country adoptions; or
- an accredited organisation authorised to provide inter-country adoption services.
This does not prevent lawyers, psychologists, or other professionals from assisting with aspects of the adoption process.
What Factors Does the Court Consider?
An application for adoption is made to the Children’s Court. The Court considers several factors when deciding whether to grant an adoption order.
The prospective adoptive parent must be:
- fit and proper to hold parental responsibilities and rights;
- willing and able to exercise parental responsibilities;
- over the age of 18; and
- assessed by an adoption social worker.
The Court also considers:
- the religious and cultural background of the child and adoptive parents;
- any preferences expressed by a biological parent in the consent;
- the social worker’s report, which addresses whether the child is adoptable, whether adoption is in the child’s best interests, and the child’s medical information; and
- whether the adoption is in the child’s best interests.
If no one opposes the application and the Court is satisfied that the requirements have been met, an adoption order may be granted without a formal hearing. A hearing will be required where the application is opposed or where the Court requires additional information.
What Are the Effects of an Adoption?
Once the adoption is finalised, the child is regarded in law as the child of the adoptive parent. The adoptive parent receives full parental rights and responsibilities, and the child usually assumes the surname of the adoptive parent unless the Court orders otherwise.
An adoption order does not affect any property rights the child acquired before the adoption.
Biological parents and adoptive parents may also enter into a post-adoption agreement, allowing continued contact or communication between the child and certain individuals. Such an agreement requires the child’s consent if the child is sufficiently mature.
Except where otherwise provided in an adoption order or post-adoption agreement, adoption terminates all parental rights and responsibilities of biological parents and their relatives.
What Should You Do if You Want to Adopt a Child?
If you would like to begin the process of adopting a child, you should contact an accredited adoption agency. The agency will guide you through the screening process and assist in identifying a child who is available for adoption.
A family law attorney can also assist you in finding an accredited adoption agency and navigating the legal process.
For more information on adoption in South Africa, contact Dolata & Co. for assistance on +27 68 164 8928 or via email at info@dcco.law.