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  • Ziyanda Mpakama

BIRTH PARENTS CANNOT CLAIM THE CHILD AFTER THE ADOPTION

“What if she comes back years later to take my child away from me?” has got to be in the top 3 fears that prospective adoptive parents have. I think Hollywood has done a great job in advancing this narrative about adoption and in a world where our views of reality are largely driven by the media, this kind of “horror story” makes it even less desirable for people to consider adoption as an option.


You can imagine how heavy my heart was when I came across a story on eNCA about a KZN father who wants his adopted children back, it is every adoptive parent´s worst nightmare! Reading the Twitter comments further deepened my resolve for the need to share the TRUTH about the different elements of the adoption process and arm people with information. If you have used an accredited adoption agency or adoption social worker and have gone through the proper and legitimate channels as laid out by the law, the birth parents will not be able to lay claim to the child after the adoption.


Adoptions in South Africa are guided by the Children´s Act [No. 38 of 2005], whose premise is to ALWAYS ACT IN THE BEST INTEREST OF THE CHILD. All adoptions have to meet the provisions as set out in the Act to their fullest. I am not a family lawyer or have any kind of legal training, but I am a parent that has been through the very meticulous process of adoption and I will try to provide you with the pertinent underlying legal obligations that provide guidance as to how children get adopted in South Africa.


Before a child can be placed for adoption, the Children´s Court has to determine that the child is adoptable, either as a consented or unconsented adoption. A child is adoptable when 1) the child is an orphan and has no guardian or caregiver who is willing to adopt them; 2) the whereabouts of the 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. When the child is legally adoptable they are then entered onto the Register of Adoptable Children and Prospective Adoptive Parents (RACAP) which is maintained only by the Director-General of the Department of Social Development (DSD). The purpose of RACAP is to keep a record of adoptable children and fit and proper adoptive parents.


In SA, there are two types of adoptable children, consented, and unconsented. For an adoption to be consented, each parent or guardian of the child needs to give consent, regardless of whether they are married or not, and in the case where the parent is a minor, s/he will be assisted by their parent/guardian. In the case where a child of 10 years or older is being adopted, that child also needs to provide consent. The law makes provision that before consent for the adoption of the child is granted, the adoption social worker facilitating the adoption of the child must counsel the parents/guardian of the child and, where applicable, the child on the decision to make the child available for adoption. The consent to adopt the child must be signed in the presence of a Presiding Officer of the Children´s Court, verified by a Presiding Officer of the court and filed by the clerk of the children’s court pending an application for the adoption of the child. Parents that have provided consent have 60 days to rescind their consent should they change their minds.


Both biological parents need to provide consent for an adoption, except in cases where consent is not necessary for one or both of the parents. According the Act, these include situations where the parent or guardian 1) is incompetent to give consent due to mental illness; 2) has abandoned the child, or if the whereabouts of the parent or guardian cannot be established, or the identity of the 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 6) has failed to respond to a notice of the proposed adoption within 30 days of service of notice 7) the child is an orphan and has no guardian or caregiver willing and able to adopt the child.


Furthermore, the consent of the biological father is not necessary if 1) that 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 the law that he is the biological father of the child; 2) the child was conceived from an incestuous relationship between the 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.


Our country has an incredibly high number of child abandonment, especially in tough economic conditions as we have seen during the COVID-19 pandemic. The National Adoption Coalition of South Africa estimates that about 3,500 children are abandoned each year in the country. This presents a great challenge for social workers because often the identity of the parents will be unknown. The DSD has a policy in place to employ their best efforts to track and locate the parents of abandoned children, including releasing notices of abandoned children in the media and asking community members for information. If they are unable to locate the parents within a 90-day period, the court will not need the parental consent to declare child adoptable.


The legal declaration of the child being adoptable and being entered into RACAP is essentially the first step in the legal process, it is between the court, the social workers, the DSD and the birth parents/guardian, in the case where consent is being provided. The legal process for the adoptive parents happens after the screening and matching of adoptive parent to adoptable child. My next few posts will detail each step of the process; the application, screening, the workshop, matching and legal process for the adoptive parents.


When you have adopted the child, the law only recognises you as the legal parent to the child and with the adoption order you then apply for a new birth certificate which will list your particulars as the birth parent/s on the certificate. You do not ever need to produce your adoption order to anyone order to prove that you are the parent, the birth certificate says you are the parent. Therefore, biological parents cannot legally contest the adoption after the fact.


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