Gauteng High Court (Johannesburg) Judge Fiona Dippenaar has ruled the adoption guidelines used by the Department of Social Development and its social workers stigmatise and delay adoptions – apparently for cultural reasons – and are unconstitutional.

‘At best the attitude adopted by the department and social workers can be described as an obnoxious disregard to the pain and trauma caused by them. At worst, their attitude can be described as a deliberate stratagem to discriminate and punish women who seek to have their babies put up for adoption. In either event, their attitude is intolerable,’ said Dippenaar.

A GroundUp report says the case before her was brought by two single women, aged 23 and 27, who had both ‘made the difficult life choice’ to put their babies up for adoption.

The women had gone through the legal processes, as determined by the Children’s Act, but were being harassed and bullied by social workers who seemed intent, in spite of strong opposition, to rather place the babies with their grandparents to ‘maintain their cultural roots’. 

In the case of the child referred to as Baby B, four years have passed since he was placed with his potential adoptive parents and the department still refuses to issue a letter of recommendation, despite being ordered by the Children’s Court to do so.

While the department did issue a recommendation letter for Baby L, it subsequently launched review proceedings to set it aside.

In her 74-page ruling, Dippenaar said that the applicants had applied for confidentiality, which was opposed by the government respondents (the Minister, MEC and head of Social Development). This was on the basis that the children ‘may want to know their biological parents and extended families’ and that the application was rooted ‘in a fear of judgment and scandal that would occur if the application became public knowledge’.

This ‘cavalier attitude’ entirely disregarded the confidentiality obligations of the Act, Dippenaar said. 

‘Their stance is illogical and evidences a level of bias against mothers who put up their babies for adoption. That this stigma regrettably exists among social workers appears from research done into adoptions and the abandonment of children. At the hearing, the department wisely adopted a different stance,’ she said.

According to the GroundUp report, Dippenaar said at the heart of the issue was the department’s interpretation of the Act and the guidelines. Not only was the interpretation misconceived, but the guidelines went ‘beyond what is legislated and are inconsistent in significant ways with the Constitution and the Act’.

She said voluntary consent to adoption by the biological parents was all that was required. There was no provision for any ‘investigation’ or that family members must be consulted or give consent when the mothers were majors.

Dippenaar said there was no lawful basis for the department and social workers to interfere with the adoption process and to harass and stigmatise the biological mothers and try to influence their choices, notes the GroundUp report.

‘It was unconscionable for the social workers to harass them and cause them further trauma in what was already a very traumatic experience for them.’

She added: ‘The delays in the finalisation of the adoption proceedings in both matters are untenable. Their high handed approach entirely frustrated the essential need for adoptions to be completed swiftly and without bureaucratic delay and entirely negated that it could never be in a child’s best interests to have their futures left uncertain and in limbo while forming close bonds with their prospective adoptive parents.’

Dippenaar set aside the ‘non-recommendation’ letter concerning Baby B, permanently stayed the pending review of the issuing of a letter of recommendation for Baby L, and found the department and social workers to be in breach of the Constitution.

She ordered that the conduct of the social workers be brought to the attention of the SA Council for Social Service Professions.

Full GroundUp report

Judgment