CHAPTER 15 [16]
ADOPTION
Register on Adoptable Children and prospective Adoptive Parents
228. (1) The Director-General must keep and maintain a register to be called the Register on Adoptable Children and Prospective Adoptive Parents for the purpose of―
(a)
keeping a record of adoptable children; and(b) keeping a record of suitable adoptive parents.
(2) The name and other identifying information on a child may be entered into RACAP if the child is adoptable as contemplated in section 231(2).
(3) The name and other identifying information on a child must be removed from RACAP if the child has been adopted.
(2) A person my be registered as prescribed as a prospective adoptive parent if―
(a)
the provisions of section 232(2) has been complied with; and(b) the person is a citizen of or a permanent resident of the Republic.
(3) Registration of a person as a prospective adoptive parent―
(a)
has effect for a period of three years;(b) may be renewed as prescribed;
(c) ceases―
(i) on written notice of withdrawal being given to the Director-General;
(ii) on the death of the registered person;
(4) Only the Director-General and officers of the Department designa
ted by the Director-General have access to the Register on Adoptable Children and Prospective Adoptive Parents, but the Director-General may, on such conditions as the Director-General may determine, allow access to―(a)
a provincial head of social development, or an official of a provincial department of social development designated by the head of that department; or(b) a designated child protection organisation accredited in terms of section 251 to provide adoption services.
Adoption
229. [228.] A child is adopted if the child has been placed in the permanent care of a person who is not the parent or guardian of the child as a result of a court order that has the effects contemplated in section 241.
Purposes of adoption
230. [229.] The purposes of adoption are to—
(a) protect and nurture children by providing a safe, healthy environment with positive support; and
(b) promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime. [; and]
[(c) respect the individual and family by demonstrating respect for cultural, ethnic and community diversity.]
Children who may be adopted
231. [230.] (1) Any child may be adopted provided―
(a)
the adoption is in the best interest of the child; [and](b) the child is adoptable; and
(c)[(b)] the provisions of this Chapter are complied with.
(2) A child is adoptable if―
(a)
the child is an orphan and has no guardian or caregiver who is willing to adopt the child;(b) the whereabouts of the child’s parent or guardian cannot be established;
(c) the child has been abandoned;
(d) 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
(e) the child is in need of a permanent alternative placement.
Persons who may adopt child
232. [231.] (1) A child may be adopted―
(a)
jointly by―(i) a husband and wife;
(ii) partners in a permanent domestic conjugal life-partnership; or
(iii) other persons sharing a common household and forming a permanent family unit;
(b) by a widower, widow, divorced or unmarried person;
(c) by a married person whose spouse is the parent of the child or by a person whose permanent domestic conjugal life-partner is the parent of the child;
(d) by the biological father of a child born out of wedlock;
(e) by the foster parent [or parents] of the child; or
(f) by the kinship care-giver of the child.
(2) A prospective adoptive parent [or parents] must be
―(a)
fit and proper to be entrusted with full parental responsibilities and rights in respect of the child;(b) willing and able to undertake, exercise and maintain those responsibilities and rights;
(c) over the age of 18 years; and
(d) properly assessed by an adoption social worker for compliance with paragraphs (a) and (b).
(3) A person may not be disqualified from adopting a child based on his or her financial status.
(4) Any person who adopts a child may apply for means-tested social assistance where applicable.
(5) A person unsuitable to work with children is not a fit and proper person to adopt a child.
(6)[(a) The foster parent or kinship care-giver of a child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption.]
(a)[(b)] The biological father of a child born out of wedlock, the foster parent or kinship care-giver of a child must be regarded as having elected not to apply for the adoption of the child if that biological father, foster parent or kinship care-giver fails to apply for the adoption of the child within 30 days after a notice calling on that biological father, foster parent or kinship care-giver to do so has been served on that biological parent, foster parent or kinship care-giver by the clerk of the children’s court or the sheriff.
(7) A family member of a child other than a kinship care-giver 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.
Consent to adoption
233. [232.] (1) A child may be adopted only if consent for the adoption has been given by―
(a)
each parent of the child, regardless of whether the parents are married or not: Provided that if the parent is a minor, that parent is assisted by his or her guardian; [and](b) any other person who holds guardianship in respect of the child; and
(c) the child, if the child is―
(i) 10 years of age or older; or
(ii) under the age of 10 years and is of an age, maturity and stage of development to understand the implications of being adopted and the consent given.
(2) Subsection (1) excludes a parent or person referred to in section 235 [234] and a child may be adopted without the consent of such a parent or person.
(3) If the parent of a child wishes the child to be adopted by a particular person [or persons] the parent must state the name of that person [or persons] in the consent.
(4) The eligibility of the particular person [or persons] contemplated in subsection (3) as an adoptive parent [or parents] must be determined by the court in terms of section 232(2) [231(2)].
(5) Consent referred
to in subsection (1) and given―(a)
in the Republic, must be―(i) signed by the person consenting in the presence of a presiding officer [clerk] of the children’s court;
(ii) signed by the child in the presence of a presiding officer of the children’s court if the child is of an age, maturity and stage of development to do so.
(iii)[(ii)] verified by the presiding officer [clerk] of the children’s court in the manner prescribed by regulation; and
(iv)[(iii)] filed by the clerk of the children’s court pending an application for the adoption of the child; or
(b) outside the Republic, must be
―(i) signed by the person consenting in the presence of a person prescribed by regulation;
(ii) verified in a manner and by a person prescribed by regulation; and
(iii) submitted to and filed by a clerk of the children’s court pending an application for the adoption of the child.
(6) The court may on good cause shown condone any deficiency in the provision of a consent given outside the Republic in that the consent―
(a)
was not signed in the presence of a person prescribed by regulation; or(b) was not verified in a manner or by a person prescribed by regulation.
(7) A parent of a child or a person referred to in subsection (1)(b) or the child referred to in subsection (1)(c) 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.
(8) The parent or guardian of a child may, before an application for the adoption of a child is made in terms of section 238, enter into a post-adoption agreement with a prospective adoptive parent of that child to provide for―
(a)
communication, including visitation, after the adoption between the child and the parent or guardian concerned and such other persons as may be stipulated in the agreement;(b) future communication, including visitation, after the adoption between the child and the parent or guardian concerned and such other persons as may be stipulated in the agreement; and
(c) exchanging of information, including medical information, about the child.
(9) An agreement contemplated in subsection (8) 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 implications of such an agreement.
(10) 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.
(11) A court may, when granting an application in terms of section 238 for the adoption of the child, confirm a post-adoption agreement if it is in the best interest of the child.
(12) A post-adoption agreement must be in the format prescribed by regulation.
(13) A post-adoption agreement―
(a)
takes effect only if made an order of court;(b) may be amended or terminated only by an order of court on application—
(i) by a party to the agreement; or
(ii) by the adopted child.
Freeing orders
234. [233.] (1) The court, on application by the Department, a provincial department of social development, a designated child protection organisation or an adoption social worker may issue an order freeing a parent or person whose consent to the adoption of the child is required in terms of section 233 [232] from parental responsibilities and rights in respect of the child pending the adoption of the child.
(2) The parent or person whose consent to the adoption of the child is required in terms of section 233 [232] must support an application for a freeing order in terms of subsection (1).
(3) A freeing order in terms of subsection (1) must authorise a designated child protection organisation or a person to exercise parental responsibilities and rights in respect of the child pending the adoption of the child.
(4) A freeing order lapses if―
(a)
[the court refuses to grant an application in terms of section 237 for the adoption of the child] the child has not been adopted within a period of 12 months and there is no reasonable prospects that the child will be adopted;(b) the order is terminated by the court on the ground that it is no longer in the best interest of the child; or
(c) the child, parent or person who gave consent withdraws consent for the adoption of the child in terms of section 233(7) [232(6)].
(5) A freeing order relieves a parent or person from the duty to contribute to the maintenance of the child pending the adoption, unless otherwise ordered by the court.
When consent not required
235. [234.] (1) The consent of a parent of the child or any other person who has guardianship [parental responsibilities or rights] in respect of the child is not necessary for the adoption of the child, if that parent or person―
(a)
is incompetent to give consent due to mental illness;(b) has abandoned the child, or if the whereabouts of that parent or person cannot be established, or if the identity of that parent or person is unknown;
(c) has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected;
(d) has consistently failed to fulfil his or her parental responsibilities towards the child during the last 12 months;
(e) has been divested by an order of court of the right to consent to the adoption of the child; or
(f) has failed to respond to a notice of the proposed adoption referred to in section 237 [236] within 30 days of service of the notice.
(2) Consent for the adoption of a child is not required if―
(a)
the child is an orphan and has no guardian or caregiver who is willing and able to adopt the child; and(b) the court is provided with certified copies of the child’s parents or guardian’s death certificates or such other documentation as may be required by the court.
(3)[(2)] If the parent referred to in subsection (1) is the biological father of the child, consent for the adoption is also not necessary if―
(a)
that person 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) [(3)] that he is the biological father of the child; [or](b) the child was conceived from an incestuous relationship between that person and the mother; or
(c) the court, following an allegation by the mother of the child, found on a balance of probabilities that the child was conceived as a result of the rape of the mother [for which that person was convicted]: Provided that such a finding shall not constitute a conviction for the crime of rape.
(4)[(3)] A person referred to in subsection (3)(a) [(2)(a)] can for the purposes of that subsection acknowledge that he is the biological father of a child in any of the following ways:
(a) by giving a written acknowledgment 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;
(b) by voluntarily paying maintenance in respect of the child;
(c) by paying damages in terms of customary law; or
(d) 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 No. 51 of 1992).
(5)[(4)] 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 for the adoption of a child.
Gathering of information for proposed adoptions
236. [235.] (1) When a child becomes available for adoption, the clerk of the children’s court must take [all reasonable steps to establish]―
(a)
the prescribed steps to establish the name and address of each person whose consent for the adoption is required in terms of section 233 [232]; and(b) reasonable steps to establish the name [and address] of any person whose consent would have been necessary had it not been for section 235 [234], and the grounds on which such person’s consent is not required.
(2) A person who has consented to the adoption of a child in terms of section 233 [232] and who wants the court to dispense with any other person’s consent on a ground set out in section 235 [234], must submit a statement to that effect to the clerk of the children’s court.
(3) A clerk of the children’s court may request the Director-General: Home Affairs to disclose any information contained in the registration of birth of a child, including the identity and other particulars of a person who has acknowledged being the father or the mother of the child.
(4) If a social worker involved in the proposed adoption of a child obtains information regarding the identity and whereabouts of a person whose consent for the adoption is necessary in terms of section 233 [232] or whose consent for the adoption would have been necessary had it not been for section 235 [234], the social worker must without delay submit a report containing that information to the clerk of the children’s court.
Notice to be given of proposed adoptions
237. [236.] (1) When a child becomes available for adoption, the clerk of the children’s court must without delay serve a notice on each person whose consent is in terms of section 233 [232] required for the adoption.
(2) The notice must―
(a)
inform the person whose consent is sought of the proposed adoption of the child; and(b) 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 with whom the mother is not married, request him to consent to or withhold consent for the adoption, or to apply in terms of section 238 [237] 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.
Application for adoption orders
238. [237.] (1) An application for the adoption of a child must―
(a)
be made to a children’s court in a manner prescribed by regulation;(b) be accompanied by a report, in a format prescribed by regulation, by an adoption social worker containing―
(i) information on whether the child is adoptable as contemplated in section 231(2);
(ii) information on whether the adoption is in the best interest of the child; and
(iii) prescribed medical information in relation to the child.
(c)[(b)] be accompanied by an assessment referred to in section 232(2)(d) [231(2)(d)]; [and]
(d) be accompanied by a letter by the provincial head of social development recommending the adoption of the child; and
(e)[(c)] contain such particulars as may be prescribed by regulation.
(2) When an application for the adoption of a child is brought befo
re a children’s court, the clerk of the children’s court must submit to the court―(a)
any consents for the adoption of the child filed with a clerk of the children’s court in terms of section 233(5) [232(5)];(b) any information established by a clerk of the children’s court in terms of section 236(1) [235(1)];
(c) any written responses to requests in terms of section 237(2) [236(2)];
(d) a report on any failures to respond to those requests; and
(e) any other information that may assist the court or as may be prescribed by regulation.
(3) An applicant has no access to any documents lodged with the court by other parties except with the permission of the court.
Consideration of adoption applications
239. [238.] (1) When considering an application for the adoption of a child, the court must take into account all relevant factors, including―
(a)
the religious and cultural background of―(i) the child;
(ii) the child’s parent [or parents]; and
(iii) the prospective adoptive parent [or parents];
(b) all reasonable preferences expressed by a parent and stated in the consent; and
(c) a report contemplated in section 238(1)(b) [in a format prescribed by regulation on the proposed adoption by an adoption social worker].
(2) A children’s court considering an application may make an order for the adoption of a child on
ly if―(a)
the adoption would be in the best interest of the child;(b) the prospective adoptive parent [or parents] comply with section 232(2) [231];
(c) consent for the adoption has been given in terms of section 233 [232], subject to section 240 [239];
(d) no such consent has been withdrawn in terms of section 233(7) [232(6)]; and
(e) section 232(6) [231(6)] has been complied with, in the case of an application for the adoption of a child in foster care or kinship care by a person [or persons] other than the child’s foster parent or kinship care-giver.
Unreasonable withholding of consent
240. [239.] (1) If a parent or person referred to in section 233(1) [232(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―
(a)
consent has unreasonably been withheld; and(b) the adoption is in the best interest of the child.
(2) In determining whether consent is being withheld unreasonably, the court must take into account all relevant factors, including―
(a)
the nature of the relationship during the last two years between the child and the person withholding consent and any findings by a court in this respect; and(b) the prospects of a sound relationship developing between the child and the person withholding consent in the immediate future.
Effects of adoption order
241. [240.] (1) An adoption order, except when otherwise provided in the order or a post-adoption agreement confirmed by the court as contemplated in section 233(11), terminates―
(a)
all parental responsibilities and rights any person, including a parent, step-parent or partner in a domestic conjugal life-partnership, had in respect of the child immediately before the adoption;(b) all claims to access to [contact with] the child by any family member of a person referred to in paragraph (a);
(c) all rights and responsibilities the child had in respect of a person referred to in paragraph (a) or (b) immediately before the adoption; and
(d) any previous order made in respect of the placement of the child.
(2) An adoption order―
(a)
confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent [or parents] as contemplated in section 231(1);(b) confers the surname of the adoptive parent on the adopted child, except when otherwise provided in the order;
(c) 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;
(d) 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.
Rescission of adoption orders
242. [241.] (1) A High Court or children’s court of competent jurisdiction may rescind an adoption order on application by―
(a)
the adopted child;(b) a parent of the adopted child or other person who had guardianship [parental responsibilities or rights] in respect of the child immediately before the adoption; or
(c) the adoptive parent [or parents] of the child.
(2) Any application in terms of subsection (1) must be lodged within a reasonable time not exceeding two years from the date of the adoption.
[Grounds for rescission of adoption orders
242. (1)](3) An adoption order may be rescinded only if―
(a)
rescission of the order is in the best interest of the child; or(b) subsection (4) [(2)] applies, provided that it is in the best interest of the child.
[(2)](4) An adoption order may be rescinded if―
(a)
the applicant is the parent of the child whose consent was required for the adoption order to be made, but whose consent was not obtained; or(b) at the time of making the adoption order the adoptive parent [or parents] did not qualify in terms of section 232 [231] for obtaining the order of adoption.
Notice of application for rescission
243. Notice of an application for rescission of an adoption order must be given to –
(a) the adoptive parent [or parents] of that child, if any other person brings the application;
(b) all persons who have consented [or objected] to the adoption in terms of section 233 [232] or who have withheld consent to the adoption in terms of section 237(2)(b), if the child or the adoptive parent [or parents] bring the application;
(c) the Central Authority in the case of an inter-country adoption; and
(d) any other person who the court finds has a sufficient interest in the matter.
Effects of rescission
244. (1) As from the date on which the rescission of an adoption order takes effect—
(a) the effects of the adoption order as determined in section 241(2) and (3) [240(2) and (3)] no longer applies in respect of the child concerned; and
(b) all responsibilities, rights and other matters terminated by section 241(1) [240(1)] in respect of the child are restored.
(2) When rescinding an adoption order the court may―
(a)
make an appropriate placement order in respect of the child concerned; or(b) order that that child be kept in temporary safe care until an appropriate placement order can be made.
Recording of adoption in births register
245. (1) After an adoption order has been made by a children’s court in respect of a child whose birth has been registered in the Republic, the adoptive parent [or parents] of the child must apply in terms of the applicable legislation to the Director-General: Home Affairs to record the adoption and any change of surname of the child in the births register.
(2) An application in terms of subsection (1) must be accompanied by―
(a)
the relevant adoption order as registered by the adoption registrar;(b) the birth certificate of the child;
(c) the prescribed birth registration form; and
(d) a fee prescribed in terms of any applicable legislation, if any.
Registration of birth and recording of adoption of child born outside Republic
246. (1) After an adoption order has been made by a children’s court in respect of a child born outside the Republic, the adoptive parent [or parents] of the child must apply in terms of any applicable legislation to the Director-General: Home Affairs to register the birth of the child and to record the adoption of the child in the birth register.
(2) An application in terms of subsection (1) must be accompanied by―
(a)
the relevant adoption order as registered by the adoption registrar;(b) the birth certificate of the adopted child or, if the birth certificate is not available―
(i) other documentary evidence relating to the date of birth of the child; or
(ii) a certificate signed by a presiding officer of a children’s court specifying the age or estimated age of the child;
(c) the birth registration form prescribed by regulation, completed as far as possible and signed by the adoptive parent or parents; and
(d) a fee prescribed in terms of any applicable legislation, if any.
Adoption register
247. (1) A person designated by the Director-General as the adoption registrar must, in the prescribed manner, record information pertaining to and keep a register of―
(a)
the registration numbers allocated to records of adoption cases;(b) the personal details of adopted children, of their biological parents and of their adoptive parents;
(c) particulars of successful appeals against and rescissions of adoption orders; and
(d) all other information in connection with adoptions as may be prescribed by regulation.
(2) A clerk of the children’s court must―
(a)
keep record of all adoption cases by a children’s court, including all adoption orders issued by the court, in the manner prescribed by regulation;(b) as soon as is practicable after an adoption order has been issued, forward the adoption order, a copy of the record of the adoption inquiry and other documents relating to the adoption as may be prescribed by regulation to the adoption registrar; and
(c) in the case of an inter-country adoption, forward copies of the documents referred to in paragraph (b) to the Central Authority.
Access to adoption register
248. (1) The information contained in the adoption register may not be disclosed to any person, except —
(a) to an adopted child after the child has reached the age of 18 years;
(b) to the adoptive parent of an adopted child after the child has reached the age of 18 years;
(c) to the biological parent or a previous adoptive parent of an adopted child after the child has reached the age of 18 years, but only if the adoptive parent and the adopted child give their consent in writing;
(d) for any official purposes subject to conditions determined by the Director-General;
(e) by an order of court, if the court finds that such disclosure is in the best interest of the adopted child; or
(f) 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 adoptions 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―
(a) the adopted child; or
(b) the biological parents of the adopted child, provided that 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 233(8) are entitled to have access to any information about the child that they have agreed to exchange with each other.
No consideration in respect of adoptions
249.
(1) No person may―(a)
give or receive, or agree to give or receive, any consideration, in cash or in kind, for the adoption of a child in terms of Chapter 15 or Chapter 16 of this Act [in or outside the Republic]; or(b) induce a person to give up a child for adoption in terms of Chapter 15 or Chapter 16 of this Act [in or outside the Republic].
(2) Subsection (1) does not apply to―
(a)
the biological mother of a child receiving compensation for―(i) loss of earnings due to pregnancy;
(ii) reasonable medical expenses incurred in connection with her pregnancy, birth of the child and follow-up treatment;
(iii) expenses incurred for counselling; or
(iv) any other expenses as may be prescribed by regulation;
(b) a lawyer, psychologist or other professional person receiving reasonable fees and expenses for [legal] services provided in connection with an adoption;
(c) the Central Authority receiving prescribed fees;
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(e) an organ of State; or
(f) any other persons as may be prescribed by regulation.
Only certain persons allowed to provide adoption services
250.
(1) No person may provide adoption services except―(a)
a designated child protection organisation accredited in terms of section 251 to provide adoption services;(b) an adoption social worker;
(c) the Central Authority in the case of inter-country adoptions; or
(d) a [designated child protection organisation] child adoption organisation accredited in terms of section 258 to provide inter-country adoption services.
(2) Subsection (1) does not prohibit the rendering of services in connection with the adoption of a child by a lawyer, psychologist or other professional person.
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Accreditation to provide adoption services
251. (1) The Director-General may in terms of a process prescribed by regulation accredit —
(a) a social worker in private practice as an adoption social worker to provide adoption services; and
(b) a designated child protection organisation to provide adoption services.
(2) The Director-General must keep a register of all adoption social workers and designated child protection organisations accredited to perform adoption services.
Advertising
252. (1) No person may publish or cause to be published in any form or by any means an advertisement dealing with the placement or adoption of a specific child.
(2) Subsection (1) does not apply in respect of―
(a)
the publication of a notice in terms of this Act or a court order;(b) an advertisement by a designated child protection organisation accredited to provide adoption services for purposes of recruitment, according to prescribed guidelines; or
(d) other forms of advertisements specified by regulation.
Regulations
253. The Minister, after consultation with the Minister for Justice and Constitutional Development where court orders are regulated, may make regulations in terms of section 299―
(a)
prescribing, for purposes of this chapter, procedures for determining whether a child has been abandoned by a parent or other person who has parental responsibilities in respect of the child;(b) determining procedures to be followed to locate persons whose whereabouts are unknown for obtaining their consent to adoptions;
(c) prescribing procedures for determining the age of a child;
(d) determining procedures for payment for adoption services undertaken by persons or organisations to prevent conflict of interests from arising;
(e) prescribing advertising guidelines for recruitment purposes;
(f) prescribing any other matter that may be necessary to facilitate the implementation of this Chapter.