Adoption procedures and the court

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Adoption procedures and the court

The legal definition of adoption is the legal performance of permanently placing a child with a parent or a couple other than the child’s biological parents. When one engages in a legal adoption it terminates the parental rights and responsibilities of the biological parents and the adopted child is for all purposes deemed to be the child of the adoptive parents. The notion of the best interest of the child is also of paramount importance in cases of adoption.

Section 230(1) read together with section 231 of the Children’s Act provides for the eligibility of adoption, namely who may be adopted and who may apply for adoption. A child may be adopted by life partners, same-sex partners or otherwise, in a joint adoption. A person who is married to the biological parent of the child can also adopt the child.

Parties to the adoption agreement must provide their consent. Each parent of the child and/ or where applicable every legal guardian of the child must consent to the agreement. In that regard, an adoption agreement is like a surrogate agreement in the sense that all the parties to the agreement must provide their consent.

A party who consented to the adoption can withdraw such consent within sixty days after the consent has been given. In the instance of adoption, a contract is entered into with an intention, however, the parties to this agreement are given the option to withdraw their consent to terminate the agreement. Biological parents, adoptive parents and the Minister of Social Development can apply to the Children’s Court to cancel an adoption two years after the adoption took place, for example, where the adoption is not in the best interest of the child or the adoption process was fraudulent.

There is a specific procedure followed in respect of adoption, for an adoption to qualify as a valid adoption. One cannot pay for a child, that would amount to an illegal adoption. One would apply for adoption at an agency. The agency will then after an investigation deem the parties suitable or not. Once deemed suitable, the agency should bring an application to the district court in the area in which the child resides. This will then result in a formal court hearing in which the parties will have to convince the court that they are suitable. The court will look at certain factors, for example, religion and culture of the child’s natural parents. Even though this is not the determining factor on whether the parties are suitable to adopt, the best interest of the child is of utmost importance. The natural parents will sign a consent form, but in some cases where the biological parent of the child wants to remain private, they do not need to inform the adoptive parents of their identity.

Once a valid adoption agreement is concluded the child is regarded as the biological child of the adoptive parent(s). All the parental rights and responsibilities the biological parent(s) or previous legal guardian(s) had will terminate. Regardless of there being no genetic link between the adoptive parents and the adopted child, the adoptive parents are recognised as being the adopted child’s biological parents. It must be noted that in most cases children who are adopted have no genetic link with their adoptive parents. Thus, the law recognises parental rights and responsibilities of the adoptive parents regardless of them having no genetic link to the child.

Reference List:

  • The Children’s Act 38 of 2005

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).