How to Legally Adopt a Child in South Africa

For many people in South Africa, adopting a baby is the only viable way for them to expand their families. Whether it’s due to fertility issues or simply a moral decision, adopting a child in need can radically change people’s lives and make a dream come true for many.

Not to mention, for the children themselves, considering the rising epidemic of child abandonment in South Africa, it gives them a chance at living a full and prosperous life. As the Centre of Child Law states, “… adoption may provide great benefits for children and prevent them growing up in child and youth care centres where there is no family life.”

However, despite the growing need for abandoned or orphaned children to find permanent and loving homes, the 2018 Child Gauge report from the Children’s Institute says, “formal adoptions continue to decline with only 1,349 adoptions taking place in the 2016/2017 period”.

Many experts have cited various reasons for this decline ( more on this later), but the lengthy and time-consuming adoption process might also make people reconsider. But those wanting to adopt should lose hope; with sufficient preparation, knowledge and legal advice, the adoption process will be significantly less stressful and frustrating.

What is legal adoption?

Regulated by the Children’s Act, adoption is the legal process in a mother and/or father’s parental authority over a child is terminated and hand awarded to new adoptive parents.  Thus, after the process is completed, the child in question will legally become the child of the adoptive parent(s), and they will have to protect the rights of the child.

The birth parent(s) must give consent.

Both biological parents, whether married or not, must give consent for the child to be put up for adoption.  Should the whereabouts of one parent not be known, then it’s only required for the known parent to give consent. If the child is older than 10 years, they must also approve. Birth parents may specify what type of adoptive parents they would prefer for their child.  All of this must be done in writing and send to the Children’s Court for approval. It’s important to note that biological parents have the right to withdraw consent within 60 days of giving it.

Who can apply to adopt a child?

According to the law, any South Africa citizen over the age of 18 is eligible to adopt a child. But, more specifically:

  • spouses, partners in a life-partnership (including same-sex couples), 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 step-parent; or
  • the father of a child born out of wedlock.

Once prospective adoptive parents tick any of the above boxes, they must then find an accredited adoption social worker.  The best options include: a certified adoption agency, a private social worker, Child Welfare or the Department of Social Development.  The National Adoption Coalition’s website  is also a helpful resource to find the best social work or agency in your province.

The screening process

The accredited adoption agent will then proceed with screening the adoptive parents.  This is a lengthy and thorough process that delves into almost every aspect of the parents’ lives.  This will include background checks, interviews, lifestyle evaluations, financial income and expenditure assessments and general capacity to raise a child.  What’s more, parents are required to undergo psychological evaluations and obtain police clearance certificates (they will also be checked against the Sexual Offences Register).

Then, the adoptive parents and social worker will have thorough discussions about what exactly adoption involves, which includes everything from cross-racial adoption to what kinds of talks will be had with the child about how they came to be in the family.

All of these findings, assessments and documents will then be sent to the Children’s Court for review and approval.  It’s estimated that the entire process can take between 3 and 6 months.

The matching process

In addition to stating their preferences of the kind of child they would like to adopt (it’s race, age and gender), potential parents will also be asked about whether they are willing to adopt an older child, an abandoned child and/or a child that has special needs.  Depending on the specifications by the prospective parents, this process can take up to nine months.

Receiving the call and completing a legal adoption

After the screening and matching processes, it’s pretty much a waiting game (it can take a year or even longer) until the social worker calls the parents to inform them that there is a child for them. The parents will also receive the particulars about the child and be asked if they want to go ahead or not.  If the answers is yes, only then will they physically meet the child, and depending on the child’s circumstances, will be allowed to visit the child before legally finalising the adoption and taking custody.

Final approval

Then, the Department of Social Development in the parents’ province must approve the adoption, after which the Children’s Court will issue an adoption order.

What is an adoption order?

This is an order of the court that states the child is now officially under the parental authority of the adoptive parents, and the child’s surname will be changed to the adoptive parents’. Lastly, the adoption must then be registered at Home Affairs, where the child will receive a new birth certificate and ID number.  However, both of these steps can take quite a long time to complete:  the adoption order and take up to a year to be issued; while the registration process can take up to two years, depending on delays at Home Affairs.

Cancelling an adoption order

The birth parents and adoptive parents can request for the adoption order to be rescinded based on the following:

Birth parents: Should they believe their consent was not given as required by law, they can apply for the order to be cancelled.  This must be done within six months of them becoming aware of the order being issued, but cannot be done later than two years of the order being issued.

Adoptive parents: If the parents can prove that they were unaware of a child being mentally ill or suffering from a congenital disorder at the time of the order being made, they can apply for it to be cancelled.  This must be done within six months of becoming aware of the condition.

Obstacles for the adoption process in South Africa

As mentioned, there has been a decline in adoptions in South Africa, and that has a lot to do with government officials and cultural differences.  As the 2018 Child Gauge Report states:

“Research conducted in 2013 found that rather than supporting adoption as a form of alternative care, government officials are actively preventing adoptions from taking place. This starts in state hospitals where the option of adoption is, in most instances, not communicated to women experiencing a crisis pregnancy, and when actively sought, it is often denied to them. State employed nurses, social workers and police officers all voiced cultural concerns around adoption, believing that it is not the role of the state to create families and kinship connections, but rather that of family, ancestors and/or God”.

There are also some legislation that’s hindering the adoption process.  As Dee Blackie, an independent child protection researcher and activist, points out in a 2019 article for The Daily Maverick, recent changes to the Children’s Act can have devastating effects. “This clause prevents anyone, from independent social workers, child protection organisations, medical practitioners, specialists and lawyers to charge for services rendered in the process of adoption. They are also prevented from gaining donations that could be used in an adoption, effectively closing down all avenues for funding.”

So, not only does the adoption process face legislative issues, but lengthy administrative ones as well. And, ultimately, it’s the thousands of children in need of happy homes and loving families that pay the price.

We’ve got your back!

LAW FOR ALL’s experienced lawyers can provide legal advice and guidance on matters relating to adoption and our expert Panel Attorneys can assist at discounted rates. Be sure to have a look at LAW FOR ALL’s comprehensive policies. Sign up today!

DISCLAIMER