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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
25 February 2005
CHILDREN’S BILL: DELIBERATIONS
Chairperson: Ms TJ Tshivase (ANC)
Children's Bill [(B70-2003) Reintroduced]
The Committee met to consider Clauses 239 to 253 in Chapter 16 which deals with adoptio of the Children’s Bill. Numerous questions and issues were raised by Members including the nature of open and closed adoptions, parental rights and responsibilities, the granting of consent for adoption, the role of guardianship, the rescission of adoption orders, access to medical information and the accreditation of social workers.
Chapter 16 Adoption
Clause 240: Effects of Adoption Orders
Ms L Stuurman (South African Law Reform Commission) stated that the Children’s Court could decide whether open or closed adoptions occurred. Issues such as a pre-existing relationship between the child and adoptive parents would determine the nature of adoptions.
Ms C Dudley (ACDP) asked whether children who had been adopted internationally from South Africa could have South African citizenship reinstated upon maturity if so desired.
Ms Stuurman replied that the issue of citizenship would be considered and a response forwarded to the Committee.
Mr O Kellner (State Law Advisor) referred to clause 240(1)(c) which stated that all parental rights were extinguished by the granting of an adoption order including links to citizenship.
Ms Dudley believed that a person should have the right to claim citizenship despite the existence of an international adoption order.
Adv M Masutha (ANC) stated that citizenship was regulated in other areas of legislation and was controversial within the Children’s Bill. The impact of the Children’s Bill on other legislative Acts had to be constantly monitored. The rights and responsibilities that a child loses upon adoption had to be audited and a list provided.
Ms Dudley advocated that social workers should have the right to release information pertaining to citizenship to assist in securing South African citizenship.
Mr K Morwamoche (ANC) asked whether the Children’s Bill would include traditional practices and refrain from ignoring cultural issues.
Ms Stuurman stated that consent for adoption has to be given by a guardian. A grandparent could not provide consent unless possessing guardianship rights. However, consent could be waived in certain circumstances such as abandonment.
Ms S Rajbally (MF) asked whether a grandparent providing care could give consent for an adoption.
Ms Stuurman responded that consent-givers had to be guardians who assumed parental rights and responsibilities. Care-givers could not give consent to an adoption.
Ms J Chalmers (ANC) asked how elderly people would be notified of the need to acquire guardianship.
Ms M Ngcobo-Mbere (Director-Department of Social Development) replied that a social worker would not inform elderly people in general about guardianship requirements but would only be involved in the case of an adoption.
Ms Stuurman stated that the Bill would consider the role of grandparents where a child had lost both parents.
Adv Masutha acknowledged a duty to support on the part of grandparents but stated that the Bill was not clear on the transfer of rights accruing to grandparents following the death of parents.
Ms Stuurman responded that no automatic transfer of rights occurred and grandparents would have to apply at court for such rights.
Mr Kellner stated that the Constitution guaranteed the right to citizenship as an individual right pending sufficient evidence to support the claim.
Ms Dudley advised Members of difficulties in accessing relevant documentation within the Department of Home Affairs to corroborate claims.
Clause 242: Grounds for Rescission of Adoption Orders
Ms Chalmers asked whether adoptions could take place without the necessary consent as the rights of adoptive parents would have to be protected.
Ms Stuurman reminded Members that parents had to receive notification of pending adoptions in accordance with clause 236. Failure to notify was a ground to rescind.
Ms Dudley asked whether the clause was in the best interests of the child.
Ms Stuurman replied that a time-limit of two years was in place after an adoption to apply for recission on the basis of no consent.
Mr Morwamoche asked that traditional culture be included within the parameters of the Bill.
Ms Stuurman acknowledged that such concerns had been noted and would be discussed with the Department.
Ms Ngcobo-Mbere added that a workshop would be held at which such issues would be discussed.
Ms Dudley requested additional expertise to be provided on traditional matters to assist Members in understanding the pertinent issues.
Adv Masutha stated that the interpretation of customary law was important regarding children’s legislation.
Ms Rajbally asked how the Bill could prevent biological parents from appearing and demanding the return of the child.
Ms Stuurman replied that an adoption order, if correctly obtained, provided the adoptive parents with all parental rights and responsibilities. Biological parents could not demand the return of the child. The adoption order would go to court after a 60 day cooling-off period during which consent could be withdrawn.
Clause 244: Effects of Rescission
Mr Morwamoche asked whether monitoring mechanisms were in place to ensure that magistrates notified parties of changes to orders.
Ms Stuurman responded that implementation problems remained but should be addressed within the Criminal Procedure Act.
Mr Morwamoche replied that many maintenance orders were simply ignored by magistrates.
Ms Stuurman suggested that Members discuss such issues with the Department of Justice at the next meeting.
Clause 248: Access to Adoption Register
Ms Stuurman stated that access to medical information pertaining to an adopted should perhaps also be made available prior to the age of maturity. This was currently missing from the clause.
Ms Chalmers asked whether vital medical information could be made available at the time of adoption relating to genetic illnesses that would manifest later.
Ms Ngcobo-Mbere stated that such information was provided in inter-country adoptions.
Ms Stuurman stated that the Bill provided for an Aids test prior to adoption but the wider issue of access to medical information would be re-considered.
Ms Chalmers advocated the introduction of a formal document where medical problems were disclosed prior to adoption. The current best international practice should be considered.
Ms Stuurman responded that provision should exist within the Bill rendering medical disclosure mandatory.
Ms Rajbally agreed that medical knowledge should be available to avoid possible cover-ups.
Ms Stuurman stated that currently any information other than medical could be accessed up to 18 years. Adoptive parents would be informed if the biological parents died of a disease relevant to the child. Eighteen years was regarded as an appropriate age for all available information to become available.
Clause 249: No Consideration in Respect of Adoptions
Ms Stuurman referred to a submission from Johannesburg Child Welfare Society requesting that subclause 2(a)(i) be deleted. With regard to subclause 2(a)(ii), a central fund should be established allowing adoptive parents to contribute to cover medical expenses for pregnancy that a biological mother might claim.
Ms Dudley asked how practical this fund would be and whether administrative burdens would arise.
Ms Chalmers sought clarity on how loss of earnings due to pregnancy would be determined.
Ms Stuurman replied that the mother could claim compensation from the adoptive parents for loss of income due to the pregnancy.
Ms Chalmers pointed out that such arrangements were problematic as the purchasing of babies could ensue.
Ms Dudley recommended a three month period limit regarding claims for loss of income.
Ms Chalmers asked who monitored the loss of income and determined the amount.
Ms Stuurman replied that proof of employment containing income details was necessary and would govern the amount. An appropriate time-frame would be devised limiting period of claims.
Mr Morwamoche asked whether the medical expenses of a traditional doctor would be included.
Ms Stuurman responded that traditional practitioners would be considered but proof was necessary.
Mr Kellner stated that a specific amount for loss of earnings could not be incorporated into the Bill and corruption in this regard was likely.
Ms Stuurman recommended that a provision prohibiting contact between biological parents and adoptive parents be included to avoid the likelihood of corrupt practices.
Ms Chalmers countered by recounting a case where biological parents met with prospective adoptive parents to determine suitability and ensure peace of mind.
Ms Stuurman reiterated that her suggestion was to avoid money transactions between key parties.
Adv Masutha stated that the Bill recognised both disclosed and undisclosed adoptions which could cause confusion. A child could be adopted by known parties or placed into a pool where the mother would have no knowledge of the recipients. Both scenarios should be dealt with by separate clauses rather than one inexplicit clause. The access to information was another controversial issue impacting on disclosed or undisclosed adoption. The termination of all parental rights upon adoption could be problematic if a child was adopted within the extended family.
Ms Stuurman concurred that the limiting of information within an open adoption seemed unrealistic and amendments should be forthcoming.
Ms Dudley asked whether clause 249(d) would return into the section 75 Bill.
Ms Stuurman responded that the clause referred to 76 issues but the matter would be reconsidered.
Adv Masutha stated that clause 249(2)(d) was not empowering an agency to provide services but exempted an organisation from the effect of clause 249(1) thereby protecting an agency from the recovery of reasonable costs. Therefore, the clause should remain within section 75.
Mr Kellner stated that adoption was essentially a section 76 matter as provinces could be prejudiced by certain procedures.
Ms Ngcobo-Mbere stated that all local adoptions were conducted at the provincial level with registrations occurring at the national level.
Adv Masutha declared that social workers and adoption agencies had impact at the provincial level while the determination of regulations and obligations remained a national prerogative. The rescission of adoption orders was a national competence not to be handled at provincial level. The identification of specific services to be provided remained a national responsibility.
Clause 250: Only certain persons allowed to provide adoption services
Ms Dudley stated that clause 250(1) had to be more clearly defined regarding the nature of adoption services. She suggested that adoption services be defined as "to facilitate permanent placement of a child by means of an adoption order". Clause 250(1)(b) ignored specialist family law attorneys which appeared problematic as adoptions were primarily legal arrangements. Lawyers should be utilised to alleviate the burden on social workers. Lawyers faced debarment if found guilty of improper or corrupt activity. Clause 250(1)(b) had to be broadened to include specialist lawyers.
Adv Masutha stated that the notion of adoption services had to be clarified by, for example, limiting those capable of rendering such a service. Certain pre-requisites had to be secured before an adoption order could be granted. A social workers report was imperative to acquiring an order but lawyers could contribute to the overall procedure.
Ms Stuurman concurred that lawyers would not be prohibited from participating in the process but only social workers would remain accredited to produce reports.
Mr Kellner stated that no adoption order would be granted without a social worker’s report.
Ms Dudley asserted that adoption remained a national priority and the inclusion of other suitably qualified persons to facilitate efficiency was logical.
Ms Stuurman asked whether the recommendation was that lawyers be accredited.
Adv Masutha stated that the issue was not about accreditation but about service provision. Other skills should be involved to improve the process such as input from medical practitioners.
Ms Stuurman asked whether adoption parents would pay lawyers for their services.
Adv Masutha claimed that lawyers could claim compensation for services rendered from the parties involved.
Ms Ngcobo-Mbere stated that social workers had a specific role to play regarding adoptions which no other role-player could fulfil.
Ms Dudley asserted that specialist family lawyers were sufficiently qualified to participate.
Ms Stuurman stated that specialist lawyers were not excluded from providing services and assisting in the process.
Ms Dudley asked for clarity on the reasons for limitation of accreditation to social workers.
Adv Masutha emphasised the importance of the social worker’s report in the granting of adoption orders and the advantages of accreditation in vetting the involvement of social workers within adoption.
Clause 251: Accreditation to perform adoption work
Adv Masutha asked for clarification on the connection between clause 251 and clause 250.
Ms Dudley stated that clause 250 seemed irrelevant as clause 251 indicated the need for a social worker’s report.
Ms Stuurman responded that clause 250 would be reformulated to stress no adoption without a social worker’s report.
Mr Kellner added that a court would not issue adoption orders without a report from the designated persons.
Clause 252: Advertising
Adv Masutha asked whether an agency advertising on behalf of an abandoned child to locate the parents would be in breach of the clause.
Ms Stuurman replied that an advertisement to locate an abandoned child’s family was acceptable but not to indicate availability for adoption.
Adv Masutha replied that adverts for abandonment could invite responses to adopt if not worded correctly.
Ms Stuurman stated that an adoption agency could advertise its services but not in relation to a specific child.
Mr Kellner stated that clause 252(2)(a) allowed an agency to advertise to seek consent from a parent to an adoption but the reason for the request had to be clearly stated.
Adv Masutha stated that the advertising of an abandoned child defeated the purposes of prohibition as interest in the child could be garnered.
Ms Stuurman replied that the Bill did not require that an advertisement be produced for an abandoned child.
Adv Masutha acknowledged that an advert expressing the intention to reunite the child with the family and no mention of adoption would suffice.
Ms Stuurman stated that the clerk of the court must take all reasonable steps to locate the parents of a child in order to provide consent. A published notice would be acceptable.
Adv Masutha stated that advertisements relating to children required a holistic policy due to the sensitive nature of publishing such material. Issues of privacy were of prime importance.
Clause 253: Regulations
Adv Masutha asked why subclause (a) was included dealing with abandonment.
Ms Stuurman responded that the subclause referred to the determination of abandonment in order to decide whether consent was not required.
Adv Masutha replied that abandonment should only be discussed in relation to adoption and questioned the location of subclause (a).
Ms Stuurman acknowledged that subclause (a) was incorrectly positioned and adjustments would be made.
Ms Dudley related some findings from public hearings regarding inter-country adoptions, the relationship between guardianship and caring, access to South African citizenship and the regulation of the Children’s Court by the High Court.
Adv Masutha stated that inter-country adoptions were governed by the Hague Convention which could not be amended within domestic law. Regulations should determine the best way to register adoptions.
Ms Stuurman responded that regulations regarding inter-country adoptions were designed to prevent abuse by unscrupulous persons who bypassed local regulations in adopting local children.
Adv Masutha stated that the issuing of guardianship rights had to be better controlled with stricter requirements.
Ms Stuurman stated that the application for guardianship by foreign individuals should be perceived as applying for adoption.
Adv Masutha indicated that this requirement should be clearly stated in the clause to avoid confusion. The effect would be to limit the power of the High Court which operated as the upper guardian of minor children. A process of engagement was needed to undertake such a step as the right of the High Court to grant guardianship would be curtailed.
Mr Kellner added that significant evidence would be required to justify this development.
Adv Masutha asserted that the issue revolved around the limiting of constitutional rights and undesirable consequences had to be carefully considered.
Ms Dudley stated that currently no post-placement control existed with inter-country adoptions which required amendment.
Adv Masutha reiterated that a prescription to the High Court was problematic. The imposition of a requirement needed careful consideration.
Ms Ngcobo-Mbere stated that the Hague Convention controlled activity within signatory countries regarding adoption but did not deal with guardianship.
Adv Masutha added that requests for adoption from non-member countries posed a problem which had to be addressed.
The meeting was adjourned.