Adoption

What is adoption?

  • Adoption is a process where an adult receives the parenting rights and responsibilities from the biological parents of a child who is under 18 years of age. Adoption is intended to effect a permanent change in the status of a child and is required in terms of a court order.

Who may be adopted?

A child:

  • who is an orphan (where there is no legal guardian or caregiver who is willing to adopt the child);
  • whose parents or legal guardians cannot be established;
  • who was abandoned;
  • who was abused by his/her parents or legal guardians or
  • who needs a permanent home.

The following adults (a person over 18 years of age) can adopt:

  • spouses, partners (including same-sex partners) in a life-partnership, or other persons sharing a common household and forming a permanent family unit;
  • a widower, widow, unmarried or divorced person;
  • a married person whose spouse is the parent of the child;
  • the biological father of a child born out of wedlock; or
  • the foster parents of the child.

When will a person be allowed to adopt?

  • A prospective parent must be over 18 years of age; can be entrusted with full parental rights and responsibilities; wants to take, exercise and maintain these rights and responsibilities; and who must be assessed by a social worker.

Who must give consent for adoption?

  • Each parent of the child, or legal guardian where necessary;
  • a child who is 10 years of age or older; and
  • a child under the age of 10 years if s/he has the maturity and understanding to consent.
  • Consent must be reduced to writing, signed and verified by the Children's Court.

Can consent be withdrawn?

  • Yes, for up to 60 days after the consent has been given – a Children's Court must not make an order for adoption final before the period of 60 days has expired.

When is consent not required?

  • The consent of a parent or legal guardian of the child is not necessary if s/he:
    • has a mental illness;
    • abandoned the child;
    • abused or neglected the child (or allowed this to happen);
    • failed to fulfill parental responsibilities and rights towards the child for 12 months;
    • was instructed by the court to not give consent;
    • failed to respond to the notice of the proposed adoption within 30 days of receiving it;
    • is the biological father who did not marry the child's mother and who did not acknowledge that he is the biological father of the child;
    • the child was conceived from an incestuous relationship between that biological father and the mother; and
    • the court found that the child was conceived as a result of the rape of the mother.

What is the adoption procedure?

  • When a child becomes available for adoption, a notice must be served by the sheriff on each consenting party to request consent to the adoption.
  • An interview is arranged between a prospective parent and a social worker. Following the interview, the social worker compiles a report containing information on whether the child can be adopted; if adoption is in the best interest of the child; medical information in relation to the child; and the eligibility of the prospective parents.
  • An application for the adoption of a child is made which must:
    • be made to a Children's Court;
    • be accompanied by the report of the social worker;
    • be accompanied by a letter by the provincial head of social development recommending the adoption of the child; and
    • include the consent form (the parents of a child may elect a specific person to adopt his/her child in the consent form where the Children's Court will determine the prospective parents eligibility).
  • The Children's Court must consider these factors before deciding on whether to allow the adoption:
    • the community, religious and cultural background of the child, the child's parent, and the prospective parents;
    • if adoption will be in the best interest of the child; and
    • the information contained in the application (a person may not be disqualified from adopting a child due to his/her financial status).
  • The Children's Court will allow or disallow the application for adoption.
  • A prospective parent may have to pay fees for the child to be adopted (for example for professional fees such as medical expenses or fees payable to the child protection organisation who assisted with the adoption).

What are the consequences when an adoption order is made?

It:

  • terminates the rights and responsibilities of the original parents or legal guardians;
  • grants parental rights and responsibilities of the adopted child to the adoptive parents;
  • gives the surname of the adoptive parents to the adopted child (unless the Children's Court states otherwise);
  • does not allow a marriage or sexual intercourse between the child and a person which would have been prohibited from such a relationship had the child not been adopted;
  • does not affect the child's rights to property s/he obtained before the adoption;
  • may be terminated, within 2 years from the adoption order being granted, if it is in the child's best interest; and
  • must, together with the child's birth certificate, be given to a Home Affairs office to record the adoption and change in surname (if the surname must be changed).
  • An adopted child is regarded as the biological child of the adoptive parents and s/he has the rights that a biological child has.

Key.

  • FOSTER PARENT: a person who brings up a child that is not biologically his/hers.
  • INCESTUOUS RELATIONSHIP: a sexual relationship between people who are closely related to marry each other, for example, brothers and sisters or a father and his daughter.

How can Legal Eagle help you? 

  • We can offer advice on the adoption procedure and which institution to approach.
  • We can assist you if there is a dispute relating to the parental responsibilities and rights of your adoptive child.