Legal Beagle

In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.

Section 150 – Child in need of care and protection

1. A child is in need of care and protection if, the child –
   1. has been abandoned or orphaned and is without any visible means of support;
   2. displays behaviour which cannot be controlled by the parent or care-giver;
   3. lives or works on the streets or begs for a living;
   4. is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency;
   5. has been exploited or lives in circumstances that expose the child to exploitation;
   6. lives in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well-being;
   7. may be at risk if returned to the custody of the parent, guardian or care-giver of the child as there is reason to believe that he or she will live in or be exposed to circumstances which may seriously harm the physical, mental or social well-being of the child;
   8. is in a state of physical or mental neglect; or
   9. is being maltreated, abused, deliberately neglected or degraded by a parent, a care-giver, a person who has parental responsibilities and rights or a family member of the child or by a person under whose control the child is.
2. A child found to be in the following circumstances may be a child in need of care and protection and must be referred for investigation by a designated social worker:
   1. a child who is a victim of child labour; and
   2. a child in a child-headed household.

The purposes of adoption are to –

1. protect and nurture children by providing a safe, healthy environment with positive support; and
2. promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime.

Section 230 – Child who may be adopted

1. Any child may be adopted if –
   1. the adoption is in the best interests of the child;
   2. the child is adoptable; and
   3. the provisions of this Chapter are complied with.
2. An adoption social worker must make an assessment to determine whether a child is adoptable.
3. A child is adoptable if –
   1. the child is an orphan and has no guardian or caregiver who is willing to adopt the child;
   2. the whereabouts of the child’s parent or guardian cannot be established;
   3. the child has been abandoned;
   4. the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; or
   5. the child is in need of a permanent alternative placement.

1. A child may be adopted –
   1. jointly by –
      1. a husband and wife
      2. partners in a permanent domestic life-partnership; or
      3. other persons sharing a common household and forming a permanent family unit
   2. by a widower, widow, divorced or unmarried person;
   3. by a married person whose permanent domestic life partner is the parent of the child;
   4. by the biological father of a child born out of wedlock; or
   5. by the foster parent of the child.
2. A prospective adoptive parent must be –
   1. fit and proper to be entrusted with full parental responsibilities and rights in respect of the child;
   2. willing and able to undertake, exercise and maintain those responsibilities and rights;
   3. over the age of 18 years; and
   4. properly assessed by an adoption social worker for compliance with paragraphs (a) and (b).
3. In the assessment of a prospective adoptive parent, an adoption social worker may take the cultural and community diversity of the adoptable child and prospective adoptive parent into consideration.
4. A person may not be disqualified from adopting a child by virtue of his or her financial status.
5. Any person who adopts a child may apply for means-tested social assistance where applicable.
6. A person unsuitable to work with children is not a fit and proper person to adopt a child.
7. (a) The biological father of a child who does not have guardianship in respect of the child in terms of Chapter 3 or the foster parent of a child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption.(b)  A person referred to in paragraph (a) must be regarded as having elected not to apply for the adoption of the child if that person fails to apply for the adoption of the child within 30 days after a notice calling on that person to do so has been served on him or her by the sheriff.
8. A family member of a child who, prior to the adoption, has given notice to the clerk of the children’s court that he or she is interested in adopting the child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption.

1. The Director-General must keep and maintain a register to be called the Register of Adoptable Children and Prospective Adoptive Parents for the purpose of –
   1. keeping a record of adoptable children; and
   2. keeping a record of fit and proper adoptive parents.
2. The name and other identifying information of a child may be entered into RACAP if the child is adoptable as contemplated in section 230(3).
3. The name and other identifying information of a child must be removed from RACAP if the child has been adopted.
4. A person may be registered in the prescribed manner as a prospective adoptive parent if –
   1. section 231(2) has been complied with; and
   2. the person is a citizen or permanent resident of the Republic.

1. A child may be adopted only if consent for the adoption has been given by –
   1. each parent of the child. regardless of whether the parents are married or not: Provided that, if the parent is a child, that parent is assisted his or her guardian;
   2. any other person who holds guardianship in respect of the child; and
   3. the child, if the child is –
      1. 10 years of age or older; or
      2. under the age of 10 years, but is of an age, maturity and stage of development to understand the implications of such consent.
2. Subsection (1) excludes a parent or person referred to in section 236 and a child may be adopted without the consent of such parent or person.
3. If the parent of a child wishes the child to be adopted by a particular person the parent must state the name of that person in the consent.
4. Before consent for the adoption of the child is granted in terms of subsection (1), the adoption social worker facilitating the adoption of the child must counsel the parents of the child and, where applicable, the child on the decision to make the child available for adoption.
5. The eligibility of the person contemplated in subsection (3) as an adoptive parent must be determined by a children’s court in terms of section 231(2).
6. Consent referred to in subsection (1) and given –
   1. in the Republic, must be –
      1. signed by the person consenting in the presence of a presiding officer of the children’s court;
      2. signed by the child in the presence of a presiding officer of the children’s court if the consent of the child is required in terms of subsection (1)(c)
      3. verified by the presiding officer of the children’s court in the prescribed manner; and
      4. filed by the clerk of the children’s court pending an application for the adoption of the child; or
   2. outside the Republic, must be –
      1. signed by the person consenting in the presence of the prescribed person;
      2. verified in the prescribed manner and by the prescribed person; and
      3. submitted to and filed by the clerk of the children’s court pending the application for the adoption of the child.
7. The court may on good cause shown condone any deficiency in the provision of a consent given outside the Republic in that the consent –
   1. was not signed in the presence of the prescribed person; or
   2. was not verified in the prescribed manner or by the prescribed person.
8. A person referred to in subsection (1) who has consented to the adoption of the child may withdraw the consent within 60 days after having signed the consent, after which the consent is final.

1. The parent or guardian of the child may, before an application for the adoption of a child is make in terms of section 239, enter into a post-adoption agreement with a prospective adoptive parent of that child to provide for –
   1. communication, including visitation between the child and the parent or guardian concerned and such other person as may be stipulated in the agreement; and
   2. the provision of information, including medical information, about the child, after the application for adoption is granted.
2. An agreement contemplated in subsection (1) may not be entered into without the consent of the child if the child is of an age, maturity and stage of development to understand the implication of such an agreement.
3. The adoption social worker facilitating the adoption of the child must assist the parties in preparing a post-adoption agreement and counsel them on the implications of such an agreement.
4. A court may, when granting an application in terms of section 239 for the adoptoin of the child, confirm a post-adoption agreement if it is in the best interests of the child.
5. A post-adoption agreement must be in the the prescribed format.
6. A post-adoption agreement –
   1. takes effect only if made an order of court;
   2. may be amended or terminated only by an order of court on application –
      1. by a party to the agreement; or
      2. by the adopted child.

1. The consent of a parent of guardian of the child to the adoption of the child, is not necessary if that parent or guardian –
   1. is incompetent to give consent due to mental illness;
   2. has abandoned the child, or if the whereabouts of that parent or guardian cannot be established, or if the identity of that parent or guardian is unknown;
   3. has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected;
   4. has consistently failed to fulfil his or her parental responsibilities towards the child during the last 12 months;
   5. has been divested by an order of court of the right to consent to the adoption of the child; or
   6. has failed to respond to a notice of the proposed adoption referred to in section 238 within 30 days of service of the notice.
2. Consent to the adoption of a child is not required if –
   1. the child is an orphan and has no guardian or caregiver who is willing and able to adopt the child; and
   2. the court is provided with certified copies of the child’s parent’s or guardian’s death certificate or such other documentation as may be required by the court.
3. If the parent referred to in subsection (1) is the biological father of the child, the consent of that parent to the adoption is not necessary if –
   1. that biological father is not married to the child’s mother or was not married to her at the time of conception or at any time thereafter, and has not acknowledged in a manner set out in subsection (4) that he is the biological father of the child;
   2. the child was conceived from an incestuous relationship between that biological father and the mother; or
   3. the court, following an allegation by the mother of the child, finds on a balance of probabilities that the child was conceived as a result of the rape of the mother: provided that such a finding shall not constitute a conviction for the crime of rape.
4. A person referred to in subsection (3)(a) can for the purposes of that subsection acknowledge that he is the biological father of a child –
   1. by giving a written acknowledgement that he is the biological father of the child either to the mother or the clerk of the children’s court before the child reaches the age of six months;
   2. by voluntarily paying maintenance in respect of the child;
   3. by paying damages in terms of customary law; or
   4. by causing particulars of himself to be entered in the registration of birth of the child in terms of section 10(1)(b) or section (11)(4) of the Births and Deaths Registration Act, 1992 (Act 51 of 1992).
5. A children’s court may on a balance of probabilities make a finding as to the existence of a ground on which a parent or person is excluded in terms of this section from giving consent to the adoption of a child.

Section 238 – Notice to be given of proposed adoption

1. When a child becomes available for adoption, the presiding officer must without delay cause the sheriff to serve a notice on each person whose consent to the adoption is required in terms of section 233.
2. The notice must –
   1. inform the person whose consent is sought of the proposed adoption of the child; and
   2. request that person either to consent to or to withhold consent for the adoption, or, if that person is the biological father of the child to whom the mother is not married, request him to consent to or withhold consent for the adoption, or to apply in terms of section 239 for the adoption of the child.
3. If a person on whom a notice in terms of subsection (1) has been served fails to comply with a request contained in the notice within 30 days, that person must be regarded as having consented to the adoption.

1. An application for the adoption of a child must –
   1. be made to a children’s court in the prescribed manner;
   2. be accompanied by a report, in the prescribed format, by an adoption social worker containing –
      1. information on whether the child is adoptable as contemplated in section 230(3);
      2. information on whether the adoption is in the best interests of the child; and
      3. prescribed medical information in relation to the child.
   3. be accompanied by an assessment referred to in section 231(2)(d);
   4. be accompanied by a letter by the provincial head of social development recommending the adoption of the child; and
   5. contain such prescribed particulars.
2. When an application for the adoption of a child is brought before the children’s court, the clerk of the children’s court must submit to the court –
   1. any consent for the adoption of the child filed with a clerk of the children’s court in terms of section 233(6);
   2. any information established by a clerk of the children’s court in terms of section 237(2);
   3. any written responses to requests in terms of section 237(2);
   4. a report on any failure to respond to those requests; and
   5. any other information that may assist the court of that may be prescribed.
3. An applicant has no access to any documents logged with the court by other parties except with the permission of the court.

1. When considering an application for the adoption of a child, the court must take into account all relevant factors, including –
   1. the religious and cultural background of –
      1. the child;
      2. the child’s parents; and
      3. the prospective adoptive parent;
   2. all reasonable preferences expressed by a parent and stated in the consent; and
   3. a report contemplated in section 239(1)(b)
2. A children’s court considering an application may make an order for the adoption of a child only if –
   1. the adoption is in the best interests of the child;
   2. the prospective adoptive parent complies with section 231(2);
   3. subject to section 241, consent for the adoption has been given in terms of section 233;
   4. consent had not been withdrawn in terms of section 233(8); and
   5. section 231(7) has been complied with, in the case of an application for the adoption of a child in foster care by a person other than the child’s foster parent.

1. If a parent referred to in section 233(1) withholds consent for the adoption of a child a children’s court may, despite the absence of such consent, grant an order for the adoption of the child if the court finds that –
   1. consent has been unreasonably withheld; and
   2. the adoption is in the best interests of the child.
2. In determining whether the consent is being withheld unreasonably, the court must take into account all relevant factors, including –
   1. the nature of the relationship during the last two years between the child and the person withholding consent and any findings by a court n this respect; and
   2. the prospects of a sound relationship developing between the child and the person withholding consent in the immediate future.

1. Except when provided otherwise in the order or in a post-adoption agreement confirmed by the court an adoption order terminates –
   1. all parental responsibilities and rights any person, including a parent, step-parent or partner in a domestic life partnership, had in respect of the child immediately before the adoption;
   2. all claims to contact with the child by any family member of a person referred to in paragraph (a);
   3. all rights and responsibilities the child had in respect of a person referred to in paragraph (a) or (b) immediately before the adoption; and
   4. any previous order made in respect of the placement of the child.
2. An adoption order –
   1. confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent;
   2. confers the surname of the adoptive parent on the adopted child, except when otherwise provided in the order;
   3. does not permit any marriage or sexual intercourse between the child and any other person which would have been prohibited had the child not been adopted; and
   4. does not affect any rights to property the child acquired before the adoption.
3. 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.

1. The information contained int he adoption register may not be disclosed to any person except –
   1. to an adopted child after the child has reached the age of 18 years;
   2. to the adoptive parent of an adopted child after the child has reached the age of 18 years;
   3. to the biological parent or a previous adoptive parent of an adopted child after the child has reached the age of 18 years;
   4. for any official purposes subject to conditions determined by the Director-General;
   5. by an order of court, if the court finds that such disclosure is in the best interests of the adopted child; or
   6. for purposes of research: provided that no information that would reveal the identity of an adopted child or his or her adoptive or biological parent is revealed.
2. The Director-General may require a person to receive counselling before disclosing any information contained in the adoption register to that person in terms of subsection (1)(a), (b), (c), or (e).
3. Notwithstanding subsection (1), an adopted child or an adoptive parent is entitled to have access to any medical information concerning –
   1. the adopted child; or
   2. the biological parents of the adopted child, if such information relates directly to the health of the adopted child.
4. Notwithstanding subsection (1), parties to a post-adoption agreement as contemplated in section 234 are entitled to have access to such information about the child as has been stipulated in the agreement.

Section 250 – Only certain persons allowed to provide adoption service

1. No person may provide adoption services except –
   1. a child protection organisation accredited in terms of section 251 to provide adoption services;
   2. an adoption social worker;
   3. the Central Authority in the case of intercountry adoptions; or
   4. a child protection organisation accredited in terms of section 259 to provide intercountry adoption services.
2. Subsection (1) does not prohibit the rendering of processional services in connection with the adoption of a child by a lawyer, psychologist or a member of any other profession.
3. A welfare organisation referred to in section 107 which was lawfully engaged in providing adoption services when this section took effect may, despite the provisions of subsection (1), continue with such services for a period of two years without being accredited in terms of section 251 to provide adoption services, but must within that period apply for such accreditation in terms of section 251.

1. The Director-General may in terms of a prescribed process accredit:
   1. a social worker in private practice as an adoption social worker to provide adoption services; and
   2. a child protection organisation to provide adoption services.
2. The Director-General must keep a register of all adoption social workers and child protection organisations accredited to perform adoption services.

Section 261 – Adoption of a child from the Republic by a person in convention country

1. A person habitually resident in a convention country who wishes to adopt a child habitually resident in the Republic must apply to the central authority of the convention country concerned.
2. If the central authority of the convention country concerned is satisfied that the applicant is fit and proper to adopt, it shall prepare a report on that person in accordance with the requirements of the Hague Convention in Intercountry Adoption and any prescribed requirements and transmit the report to the Central Authority of the Republic.
3. If an adoptable child is available for adoption, the Central Authority will prepare a report on the child in accordance with the requirements of the Hague Convention on Intercountry Adoption and any prescribed requirements and forward it to the central authority of the convention country concerned.
4. If the Central Authority and the central authority of the convention country concerned both agree on the adoption, the Central Authority will refer the application for the adoption together with all relevant documents and the reports contemplated in subsections (2) and (3) to the children’s court for consideration in terms of section 240.
5. The court may make an order for the adoption of the child if the requirements of section 231 regarding the persons who may adopt a child are complied with, the application has been considered in terms of section 240 and the court is satisfied that –
   1. the adoption is in the best interests of the child;
   2. the child is in the Republic;
   3. the child is not prevented from leaving the Republic –
      1. under a law of the Republic, or
      2. because of an order of a court of the Republic;
   4. the arrangements for the adoption of the child are in accordance with the requirements of the Hague Convention on Intercountry Adoption and any prescribed requirements;
   5. the central authority of the convention country has agreed to the adoption of the child;
   6. the Central Authority of the Republic has agreed to the adoption of the child; and
   7. the name of the child has been in the RACAP for at least 60 days and no fit and proper adoptive parent for the child is available in the Republic.
   8. This section does not apply to a child habitually resident in the Republic and who is to be placed for adoption outside the Republic with a family member of that child or with a person who will become an adoptive parent jointly with the child’s biological parent.
   9. The provisions of Chapter 15 apply to the adoption of a child referred to in subsection (8).