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Adoption - Full article

The adoption process is regulated in South Africa by the Child Care Act. Adoption is the legal process whereby the existing parental authority a mother and/or father has over a child is terminated and awarded to the new adoptive parent/s. After the adoption process is complete, the adopted child is, for all legal purposes, the child of the adoptive parent.

Who may be adopted?

Any child (a person younger than 18 years of age) may be adopted, where:

  • s/he is an orphan and there is no legal guardian/s or caregiver/s willing to adopt him/her;
  • his/her parent/s or legal guardian/s cannot be established;
  • s/he was abandoned, for example, the child had no contact with his/her parent/s or legal guardian/s for at least 3 months;
  • s/he was abused or neglected by his/her parent/s, legal guardian/s or caregiver/s; or
  • s/he needs a permanent home.

Who can apply to adopt a child?

  • The following persons, older than 18 years of age, can adopt a child:
    • spouses, partners in a life-partnership (including same-sex partners), or other persons sharing and forming a permanent home;
    • a widower, widow, unmarried, or divorced person;
    • a person married to the parent of the child, for example, a stepparent; or
    • the father of a child born out of wedlock.
  • A person cannot be prevented to adopt a child due to his/her financial status.

Who must give consent to an adoption?

  • Each parent of the child (whether married to each other or not) and/or every legal guardian, where applicable.
  • If the child is older than 10 years of age, s/he must also give consent.
  • If the child is younger than 10 years of age, his/her consent will only be required if s/he has 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.

Can consent be withdrawn?

  • Yes, a person who gave consent to an adoption has up to 60 days after the consent has been given to withdraw his/her consent.
  • A Children’s Court must not allow the adoption before the period of 60 days has expired.

When is consent not required?

The consent of the parent/s and/or legal guardian/s of the child is not necessary if the parent/s or legal guardian/s:

  • has a mental illness;
  • abandoned the child and cannot be tracked down;
  • abused or neglected the child, or allowed abuse or neglect to the child;
  • failed to fulfill parental rights and responsibilities towards the child for 12 months;
  • failed to respond to the notice of the proposed adoption within 30 days of receiving it;
  • is the father of the child who did not marry the child’s mother and did not acknowledge that he is the father of the child;
  • the child was conceived from an incestuous relationship between his/her parents; and
  • the court found that the child was conceived as a result of the rape of his/her mother.

What is the adoption procedure?

  • When a child becomes available for adoption, a notice must be served by the sheriff on each parent and/or guardian to request his/her consent to the adoption.
  • An interview should be arranged with a social worker who will compile a report containing information on whether the child can be adopted; if the adoption is in the best interest of the child; medical information in relation to the child; and the eligibility of the prospective parent/s.
  • An application for the adoption of a child can be made in the Children’s Court and must:  
  • be accompanied by the report of the social worker;
  • be accompanied by a letter by the provincial head of Social Development recommending the adoption of the child; and
  • include the necessary consent forms, where applicable.
  • The Children’s Court must take these factors into account before considering whether to allow the adoption:
  • the community, religious and cultural background of the child, the child’s parent/s, and the prospective parent/s;
  • if the adoption will be in the best interest of the child; and
  • any other relevant information contained in the application.
  • Certain fees might be payable during the adoption process, such as professional fees for medical expenses or fees payable to the relevant child protection organisation who assisted with the adoption.
  • If an adoption order has been granted by the Children’s Court, the order, together with the birth certificate of the child, must be taken to the relevant Home Affairs office to record the adoption and any change in surname, where applicable.

What are the consequences of adoption?

  • An adopted child is regarded as the biological child of the adoptive parent/s and all parental rights and responsibilities his/her biological parent/s or previous legal guardian/s had will be terminated.
  • The adoptive child takes the surname of the adoptive parent/s (unless the Children’s Court states otherwise).
  • An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.

Legal adoptions can take many forms, as set out below:

  • Related Adoption: Adoption of a child by a person who is related to the child.  This includes step-parent adoptions where there are varying levels of openness between the parties in the adoption.
  • Disclosed Adoption: The identity of the biological parent/s and the identity of the adoptive parent/s are known by both parties. This form of  adoption may include a post-adoption agreement that provides for future contact or the exchange of information.
  • Closed Adoption: In such a case, no identifying details are available and/or exchanged between the adoptive parents and biological parent/s.
  • National Adoption: A legal adoption facilitated by an accredited adoption social worker and/or organisation where both the adoptive child and parent/s are South African citizens or have permanent residence in South Africa.
  • Same-race Adoption: The race of the adoptive parent/s and child is the same.
  • Inter-race Adoption: The race of the child and adoptive parent/s differ.
  • Intercountry Adoption: A legal adoption facilitated by an accredited adoption organisation where either the child or parents are not South African citizens. South Africa is party to the Hague Convention on Intercountry Adoptions and this practice is also regulated by Chapter 18 of the Children’s Act 38 of 2005.

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