Legal Articles

Adopting a child is a regulated process in most if not all jurisdictions over the world. In South Africa it is regulated under the Children’s Act 38 of 2005.

The reasons for such regulation are as diverse as the reasons to adopt themselves, but the core of the matter is that as important as the offer to provide a home for children without a supportive home, there is also a competing need to have procedures in place that protect such children from those bent on abusing the process towards harming children. In as much as adoption of abandoned children is commendable, there is a need to protect children against human trafficking.

Legal Adoption Process in South Africa

A decision to adopt a child is not arrived at easily as applicants normally take a long time (on average) to reach such a conscious decision.

This is usually because the reason behind what moves people to adopt is one of solemn sentiment, from infertility to acts of kindness towards abandoned children. In such kind of instances adoption does bring joy and relief to both the helper and the helped.

Some people intending to adopt a child are however discouraged by the long and winding process of adoption. It is good to also remember and note that such a long process is meant to protect the children so that they are placed in homes where they receive care, love, and provision, which are exactly what those who intend to adopt want for these children.

Therefore that should not serve as a discouraging factor, but be seen as an effort to effectively achieve exactly what all the parties involved in the process want for the child.

These are some of the most prominent features of the adoption process for those intending to adopt or want information with regards thereto;

Consent

Consent of the biological parents or a legal guardian must be sought in writing that they agree to the child being put up for adoption, and such consent can be revoked within 60 days of giving it.

If only one biological parent is available, then such parent can give the consent, but it must be stated that the other biological parent is not available. It is not necessary for the parents to be married.

Should the concerned child be over 10 years of age, their consent is also taken into consideration. In the event that the parents are mentally ill, abandoned the child, abused the child, failed to provide parental responsibilities for 12 months, failed to respond to the Notice of Adoption within 30 days of receipt, father of the child did not acknowledge paternity, fathered a child out of rape or incest, then in such instances consent is not required.

Who can Adopt a Child in South Africa?

Any South African citizen who falls under the below categories and who has reached majority age can adopt a child:

1. Spouses, partners in a life partnership, or other persons sharing and forming a permanent home;
2. A widower, widow, unmarried or divorced person;

• A person married to the parent of the child (step parent);

1. The father of a child born out of wedlock.

Adoption Agency

Should any of the above stated categories of persons decide to adopt a child, they then need to find and secure the services of an adoption agency which is duly registered and recognised according to the prevailing laws.

The agency will then assist in the process and hold interviews with the applicant adoptive parents to discuss matters to do with their decision to adopt.

Screening, Approval and Matching Processes

The screening process will follow which involves a thorough check on any and all aspects that will be considered to determine whether the applicants are suitable for adoption. Such factors are background checks, lifestyle, financial standing, criminal records, psychological status and any other relevant factor.

The process will also involve a thorough discussion with regards to what adoption means and what the adoptive parents are expected of in their responsibilities towards the child. These assessments are then forwarded to the Children’s Court for evaluation and approval.

The adoptive parents have the opportunity to indicate their preferences with regards to the gender, age, race and other attributes of the child in order to help with the matching process.

Upon completion of the screening, approval of the Court and the matching processes, the agency will then call the adoptive parents to inform them that a child for their adoption has been found and details of the child will be shared with them to decide whether they still want to go ahead or not.

In the affirmative, the adoptive parents will be given an opportunity to meet the child and even visit until such time the taking of custody is procedurally possible.

Adoption Order

The Social Development Department in the province where the adoptive parents are domiciled will approve the adoption and then the Children’s Court will issue the Order for adoption.

This order signifies the completion of the legal adoption and grants the adoptive parent’s legal authority and responsibility over the affairs of the child and to that end they can now register as such at the Department of Home Affairs.

Such adoption can be cancelled by the biological parents if their consent was not given as per the law and they must do so within 6 months of becoming aware but not later than 2 years after the Order was issued.

The adoptive parents may also request cancellation of the Order on the grounds that at the time of the adoption order they were unaware of mental illness or innate disorder on the part of the child.

Van Deventer & Van Deventer Incorporated – Family Law Attorneys in Cape Town and Johannesburg

The adoption process can be quite a lengthy one due to the regulatory system’s aim to place children in homes that will care, love, and provide for them.

It is also done in order for thorough checks to be done on the applicant adoptive parents so that there is little or no chance for system abuse in pursuit of human trafficking and other forms of abuse.

Our approach is comprehensive, professional and committed in all the matters that we handle. We will diligently assist you with a matter such as this and a host of other legal matters.

To find out more about how our attorneys in Cape Town and Johannesburg can assist you with the legal process of adopting a child in South Africa, please feel free to contact us.

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