Adoption Policy implementation: briefing by Department of Social Development

Social Development

13 May 2013
Chairperson: Ms Y Botha (ANC)
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Meeting Summary

The Committee was given insight into the purpose of the Adoption Policy Framework and Strategy and the background which necessitated its formulation. The Children’s Act No. 38 of 2005 and the Hague Convention on Civil Aspects of International Child Abduction were respective national and international pieces of legislation relevant to adoptions. Adoption was a legal process facilitated through the Children’s Court by an adoption social worker and the presiding officer. The adoption process followed strict legal procedures which terminate the parental responsibilities of biological parent or guardian and vested those with the adoptive parent. Requirements for prospective adoptive parents were strict. Chapter 15 of the Children’s Act made provision for national adoptions and Chapter 16 dealt with inter-country adoptions. Section 232 of the Children’s Act also required that the Director General of the DSD should keep a register on adoptable children and prospective adoptive parents (RACAP). In 2012/13, 508 adoptable children and 237 prospective adoptive parents were registered. Section 251 of the Children’s Act made provision for the Director General to accredit and keep a register of adoption social workers in the private sector and in child protection organisations who would perform adoption services. In total there were 84 accredited adoption service providers, 42 in private practice and 42 in child protection organisations.

Implementation challenges included the fact that adoption as a placement option was being under-utilised in South Africa, as most children were being placed in foster care instead, due to the foster care grant. In addition DSD social workers were not accredited to provide adoption services in terms of section 251 of the Children’s Act and were not recognised as adoption social workers. Therefore they were not permitted to present and finalise adoption cases in some of the Children’s Courts. In addition, there were not any dedicated and specialised adoption units in the provinces. A proposal had been made by the DSD to amend the Children’s Act to include social workers in the employ of government so that they could do adoptions.

The Chairperson referred to the recent case of a mother advertising her child for adoption on the Gumtree website and said people should be made aware that such practices were illegal. She was also concerned about South African women who were incarcerated in prisons abroad with their children. What was the Department of Social Development doing to assist the mothers to get those children back to South Africa? The comment was made that international adoption of South African children was all good and well, but did the Department of Social Development do follow-ups on such adoptions? Members were concerned that adoption figures were declining and that at present there were only 508 adoptable children on the register, when there were so many orphaned children in South Africa. A further concern was there were only 42 accredited adoption social workers and only the private sector could do adoptions. How did the DSD intend to merge negative impediments like court delays and the lack of social workers in order to ensure successful adoptions took place? Members asked questions about grandparents and extended family members caring for orphaned and abandoned children and their access to the foster child grant. The Department reported that the High Court had clarified that grandparents and other extend family members qualified to be foster parents and could therefore apply for foster child grants. Special needs children was raised as the Department of Social Development did not have a specific policy for them.
 

Meeting report

Department of Social Development (DSD) Implementation of Adoption Policy Framework & Strategy
The Department of Social Development delegation comprised of Mr Wiseman Magasela Deputy Director General: Social Policy, Ms Margot Davids Chief Director: Children, Ms Kinsey Rasebitse Manager: Social Work Policy, Mr Puseletso Loselo Chief Director: Legal Services and Mr Mzolisi Fukula Acting Chief Director: Director General’s Office.

In his opening statement, Mr Magasela apologised for the absence of the Minister, Deputy Minister and the Director General as they were attending an outreach programme in Eldorado Park. In his opening statement, he said given the history of South Africa, there were millions of vulnerable children in the country. There were huge numbers of orphans and many children were living under bad conditions. The DSD thus had to have a great deal of policy interventions. One of these policy interventions was adoptions. Adoption was however only one element of the DSD’s approach. Adoption was seen as somewhat of a stable lifelong solution for a child in particular circumstances. The idea was to ensure that children were taken care of. He noted that there were incentives and disincentives for adoption. The number of foster child grants was increasing. When a person adopted a child, support did not go with the adoption. He asked that the Committee provide guidance to the DSD on the issue of adoption.

Ms Margot Davids Chief Director: Children continued with the actual briefing. The Children’s Act No. 38 of 2005 and the Hague Convention on Civil Aspects of International Child Abduction were respective national and international pieces of legislation relevant to adoptions.

Adoption was a legal process facilitated through the Children’s Court by an adoption social worker and the Presiding Officer. The adoption process followed strict legal procedures which terminate the parental responsibilities of biological parent/s or guardian/s over a child and vested those responsibilities and rights in another person/s, namely the adoptive parent/s. The process of adoption required that the circumstances of both the child and the person/s wishing to adopt needed to be investigated. Consent should also be obtained from the biological parents or guardian of the child and if the child was over the age of 10 years his or her consent should also be obtained. Requirements for prospective adoptive parents were strict and one of them was that the person must be a fit and proper person to be entrusted with full parental responsibilities and rights towards a child. Chapter 15 of the Children’s Act made provision for national adoptions and Chapter 16 dealt with inter-country adoptions. Section 232 of the Children’s Act also required that the DSD Director General should keep a Register on adoptable children and prospective adoptive parents (RACAP). The Register would keep a record of adoptable children and a record of fit and proper adoptive parents. In 2012/13, 508 adoptable children and 237 prospective adoptive parents were registered. Section 247 of the Children’s Act made provision for the Adoption Registrar to record information pertaining to adoptions and to maintian the register. Promotion and awareness of adoption services was taking place.

Section 251 of the Children’s Act made provision for the Director General to accredit and keep a register of adoption social workers in the private sector and in child protection organisations who would perform adoption services. In total there were 84 accredited adoption service providers, 42 in private practice and 42 in child protection organisations. There were two types of adoptions. Disclosed (open) adoptions were where the person giving up the child knew the person who wished to adopt the child. A non-disclosed (closed) adoption was where either party did not know the identity of the other; there was no communication or contact amongst the parties.

The impact of the Children’s Act on adoption was that there was permanency planning for children who were adoptable. Adoption service providers were accredited by DSD to render quality services. Some of the challenges were that adoption as a placement option was being under-utilised in South Africa, as most children were being placed in foster care instead, due to the availability of the foster child grant attached to this form of care. In addition social workers from the DSD were not accredited to provide adoption services in terms of section 251 of the Children’s Act and were not recognised as adoption social workers, therefore they were not permitted to present and finalise adoption cases in some of the Children’s Courts. In addition, there were not any dedicated and specialised adoption units in provinces.

Ms Davids nevertheless stated that monitoring and evaluation was in process to ensure adherence to legislation such as the Children’s Act. On-site visits to four accredited child protection organisations had been conducted.

Part of the action plan of the DSD was the continued promotion of adoption services to view adoption as an option for the permanent placement of children. Additionally, due to government social workers being omitted in the definition of adoption social worker, a proposal was made by the DSD to amend the Children’s Act to include social workers in the employ of government so that they could do adoptions.
 
Discussion
The Chairperson made reference to the matter where a child was advertised for adoption on the Gumtree website. Human trafficking was a huge concern. She referred to South African women that were incarcerated in prisons abroad with their children. What was the DSD doing to assist these women? She felt that the Minister and the Minister of Justice should have a strong message on the issue.

Ms Davids responded that the Minister had made a statement that legislation did prevent the sale of any child for the purposes of adoption. Biological parents were precluded from advertising their kids as being available for adoption. The DSD had responded to the Gumtree incident. People were not aware that it was a criminal offence to advertise their kids. She noted that there was a second similar case. It was concerning that the electronic media was being used for such purposes.  There was perhaps a need for a legislative amendment.

She said that it was the DSD’s duty to ensure that children who were imprisoned along with mothers in foreign jails were returned to South Africa. At present there were three cases in Brazil. In 2012 there had been no cases. It was a high priority issue and Brazil required children on reaching the age of two to be removed from their prisons. Family members of the incarcerated women were given preference to take in the returned children.

Ms N Gcume (ANC) noted the international agreements in place for when South African children were adopted abroad, and asked if follow-ups were done after the adoptions. Did South Africans adopt children from abroad? Once the adoptions were complete were there any challenges that cropped up. Were the international adoptions disclosed or non disclosed adoptions?

Ms Davids confirmed that follow-ups were done. The new Children’s Act did allow for follow-ups to be done; the old Act did not make provision for follow-ups. A post adoption agreement was requested by the DSD.

Mr Magasela added it was necessary for international organisations, that the DSD worked, with to fully understand their responsibilities.

Ms Davids speaking to the challenges that crop up with international countries and non disclosure adoptions, said that origin searches were done on request. There were requirements for origin searchers. Origin searchers were traumatic experiences for both parents and children. The DSD tried to stick to the provisions of the Children’s Act.

Ms J Ngubeni-Maluleka (ANC) asked what happened when an adopted child reached a stage where the child wished to make contact with its biological parents, especially if it was an international adoption (whether disclosed or non-disclosed). She also asked why there was a decline in figures for adoptions both nationally and internationally for the period 2010-2013. What were the reasons for the decline?

Mr Loselo said that when a child reached the age of 18, the consent of all parties was needed in order for there to be disclosure.

Ms Davids replied that the decline in the number of adoptions was worrisome. The decrease in the numbers could be partly due to the provisions of the new Children’s Act. There were new processes in place to ensure quality adoptions. The requirements for court processes had also expanded and could be one of the reasons why adoption numbers had declined. There were more national adoptions than international adoptions. She added that the placing of possible adoptable children on RACAP could have affected adoption figures as children were placed on the Register for 60 days.

Ms Rasebitse confirmed that children were placed on the RACAP Register for 60 days in order for matching to be done for a national adoption. Once the 60 days expired, the children could be considered for international adoption. A report was submitted in court for an international adoption.

Mr M Waters (DA) was surprised that there were only 42 accredited social workers in the private sector that could conduct adoptions in South Africa.  He asked why it had taken the DSD so long to identify the problem and also why it had taken so long to propose an amendment to the Children’s Act to rectify the problem.

He pointed out that the briefing was silent on children with special needs. He added that the Minister had said that there was no policy in place on children with special needs. Was there a need for such policy and if there was when would it be developed. He asked why the DSD had rejected programmes on kids with special needs suggested by adoption agencies.

He pointed out that ABBA Adoptions an adoption agency, discriminated against persons who were not married. It had marriage as a prerequisite in order to qualify to adopt. The Constitution of South Africa forbade any discrimination.

Referring to the Adoption Register, he was surprised that there were at present only 508 adoptable children whilst there were hundreds of thousands of children in South Africa that were orphans. It simply did not make sense. He asked for an explanation. Who was responsible for the capturing of data on the Register?

Ms Davids explained that there were rules for placing children on the RACAP Register. Some of the challenges were on how child protection organisations placed children on RACAP. There were instances where children were not placed on RACAP. The Children’s Act allowed for discretion on the part of the child protection organisation. The DSD sent the Register to child protection organisations on a monthly basis.
The DSD was currently dealing with a case where a person who did not have permanent residency in South Africa wished to adopt. RACAP had permanent residency as a requirement whereas the Children’s Act did not cover it. She felt that the DSD needed to re-look at this discrepancy. The low adoption figures could also be attributed to the cost involved in bringing up an adopted child.

Mr Losela added that the case was about an individual who did not have permanent residency but wished to adopt nationally. Not having permanent residence disqualified the person to adopt on a national basis but the individual did qualify for international adoption. The Children’s Act was clear on the requirements for adoption. It did not matter whether the persons wishing to adopt were relatives, the requirements had to be met.

Ms Davids said that there were accredited organisations and new organisations were being accredited to do adoptions. The issue was about human resource capacity. It could be a contributory factor as to why adoption figures were low. It was a complex process. Adoption was different to foster care. Foster care was temporary whereas adoption was permanent. Non government social workers handled most adoptions. The old Act stated that state social workers could not render adoptions. The expertise and skill in adoptions did not lie within the state sector. The DSD was trying to capacitate state social workers. The problem with accrediting state social workers was that there were serious contradictions in the Children’s Act. The aim was to amend the Children’s Act.

She added that the accreditation of organisations dealt with special needs children. At this point in time the DSD looked at all children. The DSD was aware that special needs children required additional efforts from organisations. There was no need for a separate policy for special needs children.

The DSD did engage in the monitoring and evaluation of four organisations and ABBA Adoptions was one of them. It was true that ABBA Adoptions had set discriminatory conditions on their website which the DSD had asked them to remove. ABBA Adoptions’ working agreement with one of its partners also had discriminatory sections. The DSD had asked that the working agreement be withdrawn. ABBA Adoptions had sent the DSD a new policy without the discriminatory principles. The DSD had removed two of ABBA Adoptions’ working agreements which meant that they only had five left from the original seven. More established child protection organisations had working agreements at international level. 

Mr R Bhoola (Minority Front) was concerned about the lack of specialised units in the provinces given that there were challenges which had to be overcome. He noted that many foster kids were often abused by their foster parents regarding the proper use of funds from foster care grants. What mechanism had the DSD put in place to address this? How did the DSD intend to merge negative impediments like court delays and the lack of social workers in order to ensure successful adoptions took place?

Ms Davids on the lack of specialised state adoption units in the provinces explained that historically adoptions had not been offered by state departments or the provinces. The DSD required highly specialised social workers to handle adoptions.

Ms F Khumalo (ANC) referring to the promotion and awareness of adoptions stated that the challenges of the DSD spoke about there being a lack of networking and information. She asked if there was a problem with a specific sector of the community and, if so, what was the DSD doing about it?

Ms Davids conceded that adoption promotion and awareness was a problem. Good interactions were taking place especially on how culture impacted upon adoptions. There was a great deal of debate on a number of these issues. There were legal aspects that needed to be abided to. The process was ongoing.

Ms Ngubeni-Maluleka gave an example where grandparents adopted a child but after few years the biological parents of the child wished to have the child returned. Would the grandparents be protected? Did the law allow for a single grandparent to adopt where the spouse had passed on?

Ms Gcume asked if the DSD would also reach out to other provinces where it had not yet engaged in dialogue.

Ms Davids said that it was part of the DSD’s plan to cover other provinces as well. There was an intensive amount of public awareness. There was a continual dialogue even though it was an uphill battle. 

Mr Bhoola asked how the DSD dealt with a situation where a parent had abandoned a child and the grandparents were left to raise the child. This was common in rural areas. The problem was that the grandparents did not qualify for a foster grant.

The Chairperson responded that the grandparents would be able to access a child support grant.

Mr Magasela said that there were millions of children who were abandoned by their parents. The key recipient of the child support grant was the grandparents. At present grandparents were now able to qualify for child support grants.

The Chairperson responded that the Gauteng High Court had stated that grandparents had a responsibility to care for their grandkids. If grandparents now became foster parents, did it not contradict with the issue of kinship?

Mr Loselo explained that there were two court cases which had dealt with this. The issue the courts looked at was “reasonable means of support”. The fact that family had a common law responsibility of support over a child did not preclude the family member from qualifying for a foster child grant if there was a need. A “means test” would still be done as to whether the family member could support the child. The court was also able to grant a contribution order against a parent who had a duty of support, in addition to the foster child grant that the adoptive family member was able to access.

Mr Waters asked whether the DSD had statistics on international adoptions of children with special needs.
He asked whether there were accredited adoption agencies that screened parents. He suggested that it could not be done as the DSD rejected international working agreements.

Mr Magasela said that there should be appreciation that in most instances adopted children were orphans. The needs of the child reigned supreme. There were no short cuts and no quick solutions. He noted that a distinction needed to be made between, on the one hand, the normal responsibility of care extended by family members and, on the other hand, the legal formal adoption process. The advantages and disadvantages of both needed to be considered.

The meeting was adjourned.
 

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