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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
6 April 2005
INTER-COUNTRY ADOPTIONS IN CHILDREN’S BILL: DELIBERATIONS
Documents handed out:
Children's Bill [(B70-2003) Reintroduced]
The Committee considered the provisions of Chapter 17 of the Bill from Clause 254 to Clause 272. Members raised concerns with the Department and the SA Law Commission representatives. The former felt that there should be additional protection for adoption by countries which had not signed the Hague Convention on Inter-Country Adoption. They wished the description "suitable child" appearing in this chapter to be replaced by "adoptable child", following the wording of the Hague Convention. They called for specific references that inter-country adoptions should comply with Chapter 16. Access to health records should be allowed in the adoption register, in necessary cases. A probationary period for inter-country adoptions should be included. The revisions suggested would be incorporated into a re-draft by the Department and the State Law Advisors, and brought back to the Committee for approval.
Progress of the Bill
The Chairperson reported that the Minister had asked for an early finalisation on the Bill and she asked the Department of Social Development representatives and Members if they could fix a time for completion. The Department indicated that there were some logistical problems. Members pointed out that the Department of Justice still needed to revert to the Committee on some of the clauses and felt that no purpose would be served by trying to rush the process. Mr B Solo (ANC) suggested that a small technical committee be appointed to deal with technical issues, to plan progress and to decide a target date for completion of the work.
Members agreed with Mr Solo and appointed a Committee, consisting of Ms T Tshivase, Adv. M Masutha, Mr M Waters and Mr B Solo.
Consideration of Clauses
Ms R van Zyl (Researcher, SA Law Reform Commission), Dr M Mabetou (Chief Director, Department of Social Development (DSD)), Ms F Viviers (Assistant Director, DSD), and Ms A Johaar (State Law Advisor) gave input into the clauses.
Clause 254: Purposes of Chapter
This clause was approved.
Clause 255 – Hague Convention on Inter-country Adoption to have force of law
Ms H Weber (DA) asked whether proper records of inter-country adoptions existed, and how they were updated.
Ms R van Zyl replied that in the past no central adoption register existed, but that one was currently being set up.
Clause 256 – Central Authority
This clause was approved.
Clause 257 – Delegation of functions
Ms J Chalmers (ANC) asked why no job designation or rank of the official carrying out the functions was given.
Ms R van Zyl confirmed that the Johannesburg Child Welfare Society had raised this question, and the Law Reform Commission had suggested that only a Director could exercise the functions. However, the problem of specifying a designation in legislation was that if the structure of the public services changed, the designation might no longer exist. In practice, the power to delegate did not need to specify the designation. The delegated function remained the responsibility of the responsible person (the Director General) who would exercise caution in delegating properly.
Clause 258 - Accreditation of child protection organisations for inter-country adoption
Ms R van Zyl reported that comments had been received on this clause. Some organisations had suggested that lawyers be accredited to perform inter-country adoptions. The Department did not agree as they considered that social workers were the trained professionals best qualified to assess the suitability of the adoption. In the case of local adoptions, set out in Chapter 16, both the Child Welfare Organisation and private child adoption organisations could perform this function. Lawyers were not excluded from the process, as they could be part of the body of professionals rendering services, and the Chapter stated that other professionals could be utilised. The Department would not object to a similar provision being inserted into Chapter 17 for clarity.
Dr M Mabetou (DSD) clarified that the Department wished to prevent the situation where profits could be made from adoptions. Child trafficking and sale were prevalent and the Bill aimed to exercise as much control as possible by accrediting only a limited number of specific organisations.
Ms F Viviers (DSD) added that in the past, the focus had been on finding adoptive children on the wishes of adoptive parents. The current emphasis was the best interests and needs of children, and since lawyers acted for prospective adoptive parents, there was a possibility of conflict of interest.
Ms H Bogopane-Zulu (ANC) raised the question of fees and queried whether the Department was satisfied that the process could be controlled effectively.
Ms R van Zyl (SALRC) replied that sub-clause (3) made provision for a designated and accredited child protection organisation to receive a prescribed fee. Chapter 16, dealing with local adoptions, already specified that no consideration could be given for adoption of a child. Inter-country adoptions would have to comply also with the provisions of Chapter 16, but there would be no objection to incorporating another cross-reference to Clause 249.
Ms A Johaar (State Law Advisor) added that "prescribed" was already defined in the Bill, and that the Minister would be setting tariffs. The Department would also issue guidelines to support the regulations
Ms F Viviers (DSD) asked where the penalty clause appeared, and Ms Johaar stated that this was included in Clause 298.
Clause 259 – Entering into adoption working agreements
Ms R van Zyl explained that in practice, the Child Protection Organisations would liase with their counterparts in other countries to settle a working agreement and ensure that the actions of the adoptive country were in accordance with South African law and ethics. These agreements were to be approved by the Department.
Ms F Viviers (DSD) stated that inter-country adoptions would be used only when no local adoption could be found, and careful consideration would be given to the identity, age and physical attributes of the child. The Department had to be satisfied that the agreements met the needs of the children, not the foreign organisation
The Chairperson asked for clarity on abandoned or refugee children
Ms F Viviers (DSD) replied that special care had to be taken with displaced children and no permanent arrangements would be made before a full investigation of their situation.
Ms H Bogopane-Zulu asked whether this Chapter took account of biological fathers, and was assured that since Chapter 16 applied also to inter-country adoptions, they were covered.
Clause 260 – Adoption of children from Republic by persons in convention countries
Ms R van Zyl indicated that there was a cross reference to Clause 238, which meant that all the concerns relating to local adoptions (Chapter 16) would still be applicable to inter-country adoptions. This would address the concerns of biological fathers.
Sub-section (6) stated that not all provisions would apply to a child who was to be adopted by a family member or by the new spouse of the biological parent. The person adopting must still be shown to be suitable, but the remainder of the inter-country process would not need to be followed.
Ms W Newhoudt-Druchen (Joint Committee, Children Youth and Disabled Persons) asked whether grandparents would be given priority over adoptive fathers. Ms Bogopane-Zulu pointed out that the Committee had already asked for a rewording of the relevant clauses. Ms A Johaar (State Law Advisor) replied that both grandparents and the biological father would be assessed as prospective adoptive parents, but there was no automatic priority.
Ms I Direko (ANC) stated that many biological fathers neglected their children and account should be taken of their intentions. Mr M Waters queried whether the Court would not take past relationships with children into account.
Ms R van Zyl stated that all relevant considerations would still be taken into account. Sub-clause (6) only stated that the Hague Convention’s principles would not need to be followed if the inter-country adoption were to be by a family member. However, there would still need to be compliance with all of Chapter 16. The best interests of the child were paramount and the suitability of the adoptive parent would still be assessed. Ms F Viviers (DSD) added that in practice, this section was often used by parents who were aware that they were terminally ill and wanted to make plans for their children. Screening of the adoptive parent would still take place, but the process was made easier and more practical in these cases.
The Committee agreed that there would be no harm in incorporating a cross-reference to Chapter 16 in this sub-section.
Clause 261 – Adoption of children from Republic by persons in non-convention countries
Ms R van Zyl pointed that this clause again made reference to Chapter 16, and applied where the adoptive parents were resident in a country which had not been a signatory to the Hague Convention.
Ms H Bogopane-Zulu asked how South Africa was able to monitor the legislation or process in another country to ensure that it matched generally accepted provisions in South Africa. Mr M Waters (DA) asked for clarity on what requirements would be prescribed. Mr K Morwamoche (ANC) asked whether countries without child-support grants would still be allowed to accept adoptions. Ms I Direko asked whether in practice agreements must be reached and certain provisions prescribed before adoption.
Ms F Viviers (DSD) explained that most inter-country adoptions would take place under Clause 260 and therefore concerned convention countries. Although in theory it would be desirable that only convention countries be used, this was not always possible and the Department did not wish to deny suitable adoptions - for instance, where there was a family member who happened to live in a non-convention country. The Department worked in these cases through the International Social Services (ISS), which was a network of social workers throughout the world, giving access to details of competent authorities, local legislation, rules and procedures. Some of the non-convention countries did not permit adoption in their own countries and therefore adoptive parents would necessarily need to adopt outside their own country. Each case needed to be dealt with on its own merits and by specific negotiation and agreement. Monitoring was assisted by the ISS, and under the Hague Convention there would be a follow-up process after adoption.
Mr T Godi (PAC) cautioned that a certificate by an authority in a non-convention country should not be accepted as the only standard of suitability and asked that the Department be able to satisfy itself independently that the non-convention country had similar standards to South Africa.
Ms H Bogopane-Zulu believed that extra protective measures were still required, in view of the alarming tendencies in the world sex trade in children, and asked that further protection be included, with additional monitoring.
Mr L Nzimande (ANC) stated that on adoption, the child’s rights would be considered under the legal framework of the adoptive country. He believed that the best protection would be an agreement and negotiation, which specified minimum criteria, between the agencies of South Africa and the new country.
Ms H Chalmers (ANC) cautioned that monitoring alone would not give sufficient protection. She would prefer South Africa to be able to deny adoption to a country that did not support child rights and did not outlaw harmful practices, such as female circumcision. Ms Bogopane-Zulu queried whether the Court would have the authority to call a child back. Ms Chalmers pointed out that the damage would already have been done and the situation should be prevented from arising at all.
Mr M Waters asked how may countries were signatories, and whether it was practical to deny adoption to non-convention countries.
Dr M Mabetou (DSD) agreed that there were unfortunately gaps in the protective measures, and the Department was in the process of tightening its control. The Department could insist upon agreements and a follow-up, but there appeared to be no reason why further measures could not be included. Ms R van Zyl (SALRC) pointed out that this section would apply only in exceptional circumstances, the majority of which would be adoption by family members and she cautioned that the Department should not be so rigid that suitable adoptions were prevented.
Ms A Johaar (SLA) stated that, as a signatory to the Hague Convention, South Africa should allow inter-country adoptions, but could certainly take additional precautions. Similar provisions would apply to those of Clause 267(b), aiming to ensure that the child’s adoption would have the same effect as if it had been a local adoption. It was compulsory to make an application to Court, and the Central Authority was obliged to investigate the potential adoptive parents and the best interests of the child, taking into account a variety of circumstances. Adoption without an Order of Court would not be recognised. The High Court was already permitted, under Clause 241, to rescind an adoption order, within a two-year period.
Mr T Godi suggested that the two-year period was perhaps too short. He asked whether a timeframe should be specified.
Mr B Solo (ANC) suggested that a constructive re-wording could not be achieved at this meeting, and he proposed that the sections be referred back to the Department for re-drafting and thereafter approved by the Technical Committee just appointed. Members supported this suggestion.
Clause 262 – Issue of adoption compliance certificate
This clause was approved.
Clause 263 – Adoption of children from convention countries by persons in Republic
This clause was approved, subject to amendment of the term "suitable children" as suggested earlier.
Clause 264 – Adoption of children from non-convention countries by person in Republic
This clause was approved, subject to amendment of the term "suitable children" as suggested earlier.
Mr L Nzimande asked for clarity that similar standards would need to be proved in both countries, and Ms F Viviers replied that whatever changes were made to Clause 261 would be reflected in this clause.
Clause 265 – Recognition of inter-country adoption of children from convention countries
This clause was approved.
Clause 266 – Evidential value of adoption compliance certificate of convention country
Ms H Bogopane-Zulu asked whether the certificates were verified as authentic. Dr M Mabetou (DSD) confirmed that this was one of the functions of the Central Registry in South Africa.
Clause 267 - Recognition of inter-country adoption of children from non-convention countries
Ms R van Zyl pointed out that any changes made to clauses 261 and 264 would be reflected in a re-working of this clause.
Ms S Rajbally (MF) suggested that the word "may" should be strengthened to give further powers to the Department. Ms F Viviers (DSD) replied that recognition of the adoption order was particularly important in international immigration issues. If it were not recognised, the child would not be permitted to remain with the adoptive family. Similarly, a child adopted in another country would become a citizen of the new country and if the order were to be rescinded, there was a problem in determining where the child should return.
Ms H Bogopane-Zulu asked whether an adopted child wishing to return to the place of birth would have the right to do so. Ms F Viviers replied that these cases would no longer fall under the adoption process, as the child would have reached 18, and confirmed that there was no automatic right if the child had lost citizenship-by-birth in becoming a citizen of another country. This situation was no different from a child whose biological parents had decided to emigrate. Ms van Zyl suggested that the Department of Home Affairs be asked to clarify this point.
Ms Newhoudt-Druchen requested clarity on the position where adoptive parents died before the child had reached the age of majority. Ms van Zyl replied that the High Court of the adoptive country would become the guardian of that child. Dr Mabetou pointed out that in practice, the extended family of the adoptive parents would be likely to accept responsibility for the child, but all countries had social services authorities who would then become involved.
The Chairperson asked whether this system would cater for children wishing to search for their biological parents. Ms F Viviers (DSD) replied that many countries had "open adoption" systems, and a child reaching 18 would have the right to search for biological parents. Sibling relationships were also important, and wherever possible, the Department tried to maintain contact with siblings.
Clause 268 – Effect of recognition of inter-country adoption
This clause was approved.
Clause 269 – Refusal to recognise inter-country adoption or Article 27 decisions
Ms R van Zyl stressed that once again, the best interests of the child would be paramount so that the adoption order would not be recognised only in circumstances where it was manifestly contrary to public policy.
Mr B Solo asked for clarity on the meaning of "public policy". Ms van Zyl replied that this reflected what previous legislation had defined as "boni mores " – values, norms and standards generally applicable in South Africa. It was a term that the Court would define and so no definition should be given to it in the Act, as this would limit the judges’ discretion. She would, however, check whether another description was used in other legislation.
Clause 270 – Application to children’s court for inter-country adoption of children
This clause was accepted.
Clause 271 – Access to information
Ms R van Zyl indicated that the Hague Convention imposed a duty on convention countries to maintain a Central Register.
Ms Newhoudt-Druchen asked whether a child below 18 years of age would be able to access information on the biological parents without the permission of the adoptive parents. Ms van Zyl replied that this was not possible, but that the Department of Health had asked that the Central Register should include medical information, so that medical history, without revealing identity, could be called for in relevant cases. Clause 248 allowed for adoptive parents, biological parents, and the adopted child to access information after the child had reached majority. If necessary, a similar clause could be included for inter-country adoptions, as Clause 271 did not contain a cross-reference to Clause 248.
The Chairperson asked what would happen if the monitoring showed that the child’s best interests were not being met. Ms R van Zyl replied that Articles 20 and 21 of the Hague Convention allowed for rescission. She suggested that a probationary period, which would include the power to rescind within that period, could be inserted, as this would be permitted by the Convention.
Ms F Viviers asked whether the child would be permitted to be taken to another country before the probationary period had expired, and Ms van Zyl confirmed that this would happen, but that the central authority should ideally be given more powers during that probation.
Dr M Mabetou (DSD) asked whether there was an obligation on the adoptive parents to inform the child of the adoption. Ms van Zyl replied that there was no such obligation, but that adoptive parents must be aware that their child could, on reaching the age of majority, seek details of the biological parent. Children seeking details of the biological parents should also receive counselling to ensure that they were fully prepared for whatever might be revealed.
Clause 272 – Processing or facilitating inter-country adoption
Ms J Chalmers asked whether criminal penalties were provided. Ms van Zyl confirmed that Clause 298(1)(b) made provision for criminal sanction and pointed out that the imprisonment period of ten years indicated the seriousness of the offence.
It was agreed that the Department would, as soon as possible, present re-drafted clauses to the Committee. Discussions would continue on Friday, 8 April.
The meeting was adjourned.