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WELFARE PORTFOLIO COMMITTEE
19 August 1998
ADOPTION MATTERS AMENDMENT BILL [B80-98]: HEARINGS
Documents handed out
Adoption Matters Amendment Bill – access from http://www.polity.org.za/govdocs/bills/1998
National Adoptive Parent’s Institute (NAPI) [Appendix 1]
Adoption Centre of Child Welfare Societies (ACCWS) [Appendix 2]
The National Adoptive Parent’s Institute and the Adoption Centre of Child Welfare Societies
made documented submissions on this Bill.
The Legal Aid Board made a verbal submission in which they voiced their concern about infra-structural inadequacies as the cut in their budget means they cannot provide for the additional work proposed by this Bill.
On the dilemma faced by the Legal Aid Board Advocate Masutha’s response was that the Welfare and Justice departments were looking into this matter and the Board will be notified in due course.
Some committee members also raised concern that the proposed time period for the birth father to make his intentions known regarding adoption was too short.
Responses from NAPI and ACCWS were that the proposed reduction in time will be in the child’s interest as far as bonding is concerned. There should not be any problem if regulations for section 19(a) on claiming paternity, together with additional amendments, are followed. They also raised the issue of trauma to (prospective) adoptive parents and the birth mother if the process is prolonged. This is the case presently since commissioners require police to search for the missing parents for almost a year before the child can be adopted.
Committee members also drew attention to section 1(c) and asked for a simpler definition of "a love relationship" for the purpose of court deliberations.
Appendix 1: National Adoptive Parent’s Institute
NATIONAL ADOPTIVE PARENTS’ INSTITUTE
ADOPTION MATTERS AMENDMENT BILL
The National Adoptive Parents’ Institute would like to thank Mr Saloojee and the Welfare Portfolio Committee for the opportunity of commenting on this Bill.
NAPI is pleased that there has been a review of the rights of unwed fathers within the safeguards of the Child Care Act. The current reform process has been most productive.
The aspects of the Bill which NAPI supports have been given in our written submissions, and will not be dealt with here to save time.
The main area of concern for NAPI are the time lags which have become apparent in the proposed legislation.
Adoption is a long process. Some birth mothers take a long time - sometimes months of their pregnancies - working with social workers to slowly explore all the options available to make a decision for them and their child - single parenthood, abortion, the role of the extended family, letting the birth father parent the child, closed and open adoption.
It is suggested that this legislation include the birth fathers in the possibilities of being part of this process of exploring options as early as possible by amending Section 19 A 2(b).
In Section 19 A 2(b) A father will be notified of an impending adoption if the mother at the time of giving her consent (a) confirms in writing that the father has acknowledged himself to be the father and gives his details. It is suggested that in this case the notification of an impending adoption should be sent prior to the mother’s consent.
Suggested that the notification of adoption could be done by the Department of Home Affairs at the time of the birth father’s initial entry of his details with this department.
Advantages would be the inclusion of the birth father in counselling or mediation processes provided by social workers, and give the social workers time to assess the birthfather as a suitable parent or enable the social worker to get to know the birthfather well enough to match the baby with suitable adoptive parents if the birth father choses this options. A birth father could, like the birth mother, make contact on more than a few occasions with prospective adoptive parents. A birth father could work through his reasons for withholding consent to a proposed adoption with a social worker - slow processes needing time.
This speeding up of the process would be beneficial for babies who may face the danger of spending their early months crying endlessly for basics necessities of life - food, clean clothing and nuturing comfort from workers in crowded institutions.
Another way of ensuring that babies are not left lying endlessly in cots will be to amend Section 11 of the Births and Deaths Registration Act:
The father may register his details in the mother’s name, (with her consent,) at the Department of Home Affairs before the child’s birth or immediately after the birth so that registration and notification of impending adoption proceedings and responses can be achieved within fourteen days.
Enable a birth father to indicate his intention that he wishes to play a significant role in the life of his child in enough time. This may be done before the child’s birth so that the fathers’ applications to adopt are processed quickly and babies placed in the security of a permanent family shortly after birth ie within a week.
This process may even make it possible for adoptive parents to be present at the birth of a child if the birthparents are completely certain of their adoption decision.
If birthfathers are plugged into the social worker network at an early stage, the social worker may be able to act as a mediator if one party decides against adoption, or the mother denies the father the opportunity to parent the child. An out of court resolution may prevent the father having to approach the High Court for rights and prevent the conflicts inherent in adverserial court proceedings.
Response to the notice
It is hoped that the time frames in the regulations for a father’s response will not cause unnecessary or lengthy delays detrimental to the speedy placement of children with loving permanent families, but give natural fathers sufficient time to declare their intentions with regards to their children. More time will be available for the father if notification is done before the mother signs adoption consent.
Recommendation for regulations:
Father to phone, fax or e-mail responses to the court, followed by written response of intentions. Notification to take 7 days and a maximum time limit of 7 days for birthfather to respond should be built into the regulations.
Section 19 (b) (vii) Dispensing with consent
It is suggested that the words ‘refused to’ be replaced by ‘has not’ ie in the case of a child born out of wedlock, the consent of the father shall be dispensed with if he has not acknowledged himself as the father of the child.
The responsibility must be with the father to indicate to the court that he wishes to acquire parental rights ie be the child’s parent. It is not up to the birthmother to ensure a birthfather lodges an application with the Department of Home Affairs. This legislation must be unequivocal for Commissioners of the Children’s Court that lenghty delays to find fathers who have not acknowledged themselves as envisaged in Section 19(A) is not an option.
Social worker reports on the reasons fathers have not contacted the Department of Home Affairs must be accepted as final as a birth mother has received adequate counselling when considering adoption and has been helped to work through any feelings, such as shame, that may be contributing to her withholding the identity of the father or naming the wrong father or her motivation for adoption against the birth father’s wishes. She has given due thought to the possible ramifications of her adoption plan without the father’s consent. If the birth mother has failed to disclose the identity of a possible father, she has been advised that the proceedings for adoption may be subject to challenge within the sixty day period, or her consent may be dispensed with when deciding the future of her child.
If the Commissioner is in doubt and he wishes further investigation to be made to find a birthfather, lengthy searches for birthfathers will not be an option - We are doubtful that even another two week period be considered. It may be an idea for a panel of commissioners or a chief magistrate to make a quick decision. Once an adoption has been finalised no late birthfather applications will be considered. NAPI strongly recommends a time constraint must be written into this section of the legislation.
A maximum of six weeks time constraints must be put in place to declare a baby abandoned. Research indicates that if parents have not claimed their children within a three week period, they never do.
NAPI worked in an ad hoc coalition with other groups on this Bill and in respect to other amendments we are in agreement with the suggestions put forward by Johannesburg Child Welfare on behalf of the group.
The National Adoptive Parent’s Institute would like to thank the Welfare Committee for the awarding of rights to birth fathers in a the Child Care Act. This is warmly welcomed as for far too long birth fathers have been discriminated against. This legislation incorporates goals set out by the Law Commission when it first set up a project to empower birth fathers. With the amendments suggested by all groups the Bill may protect children while providing, justice and good government for all.
Appendix 2: Adoption Centre of Child Welfare Societies
SUBMISSION TO THE PORTFOLIO COMMITTEE ON WELFARE ON THE ADOPTION MATTERS AMENDMENT BILL
FROM: ADOPTION CENTRE OF CHILD WELFARE SOCIETIES
1. GENERAL REMARKS
We, the stakeholders on the attached list would like to convey our appreciation for the Bill which fully incorporates the central concepts which we had proposed for this legislation -namely (a) that rights for unmarried fathers to be notified or and/or involved in decisions about adoption proceedings should not be automatic but should depend on their having actively taken responsibility for their children concerned, and (b) that provision be made for fathers to register their paternity and acceptance of the responsibilities of parenthood with the Department of Home Affairs, and to inform the Department of any change of address. We thank the legal drafters and all concerned in the development of the Bill for incorporating these concepts, thus providing the framework for a system based first and foremost on the right of children to be settled in a secure family environment, while also taking into account the acutely vulnerable circumstances of most women who are seeking adoption of their children.
A national information campaign to inform fathers of their right to register paternity and thus ensure that they will be consulted with regard to adoption proceedings is believed to be very important and we would urge that an interdepartmental strategy be devised for this purpose. Our own and, we believe, many other NGO's will be happy to assist with such a campaign.
We have developed some recommendations as to how the provisions concerning adoption could be improved, and some organisations among us have also made suggestions concerning the issue of legal representation of children which is dealt with in the same Bill.
2. COMMENTS ON PROVISIONS REGARDING ADOPTION
The definition of an "accredited social worker", while not being considered ideal by all stakeholders, is a definite improvement on the present situation, as regards building in protection of the interests of children for whom adoption is under consideration as well as their biological and adoptive parents.
The exclusion from the definition of a "natural father" of situations where there is no relationship between the partners is welcomed. However the reference to a "love relationship" is regarded as problematic - it is likely to be very difficult to establish the nature of the relationship at the time of conception, or to say that in the absence of love rather than other motivations for sex, a father should not have any rights. It is suggested that the clause be worded to exclude fathers where conception has occurred through rape, incest, prostitution or artificial conception using donor sperm.
The proposed section 18(4)(d), providing for a father to register paternity and make details of his whereabouts known in order to qualify for the right to be consulted about an adoption, is strongly supported.
The substitution of "or" for "and" to allow for adoption in cases where parents have abandoned the child or disappeared is welcomed. There remains a need for the courts to receive clear guidance as to when a child can be considered to have been abandoned -perhaps this can be achieved in the regulations. At present commissioners vary in their approach to this issue. Some require a year or more of "searching" by the police for abandoning parents before they will allow adoption to proceed. Such "searches " are generally meaningless - the police do not have the resources to carry them out, and they simply issue a document at the end of this period to confirm that they have not found a mother who has e.g. left her child at a hospital or railway station and thus clearly shown a desire for someone else to care for her child. There is a need to guard against situations where members of the community claim that a child was abandoned with them while they do in fact know where the parent are. Again, this should be covered in appropriate regulations.
It is suggested that the envisaged clause 19 (b)(vii) should read : "who, in the case of a child born out of wedlock, has failed to acknowledge himself as the father of the child as envisaged in section 19A(2).... " It may in some cases be difficult to prove to the court's satisfaction that a father has refused to acknowledge paternity.
The provision in the proposed 19(b)(ix)(bb) to allow for a finding on balance of probabilities in connection with rape of or assault on the mother is welcomed - this will provide a means of dealing with such situations without involving the child in the endless delays surrounding criminal proceedings, and should reduce the risk of secondary abuse of the mother which is inherent in such proceedings. However it is suggested that a time limit be set for the commissioner to rule on this issue, so as to prevent unnecessary delays in securing the child's future.
Section 19A is in general welcomed in that it provides the father who accepts responsibility for his child with a means of asserting rights commensurate with such responsibility, without depending on information provided by the mother for this purpose. It also makes it clear that he must provide notification of change of address, thus preventing the wastage of time and resources on tracing fathers who have disappeared. An additional clause (d) is recommended in section 19A, to read as follows: "provided that the consent of the father shall be dispensed with if he is not offering to care for the child himself." The basis for this recommendation is that the father should not be in a position to block an adoption and thereby cause a child to have to remain e.g. in an institution or indefinite foster care or e.g. to send the child to friends or relatives in a distant area without himself having any day-to-day responsibility for the child's upbringing.
There is a need to clarify the period of time within which the father will be required to respond to notification. It is recommended that this period be limited to fourteen days, so as not to delay matters for the child. lt will be necessary to spell out very clearly in the regulations how notice is to be served, so that unnecessary delays do not occur during this process.
There is support among stakeholders for the contention within the single fathers' lobby that a father should not have to adopt t his own child to acquire guardianship of him or her [19A(i)(c)]. It is however recognised that in terms of our broader legal system this is the only way to confer full parental rights without requiring the father to approach the high court with its prohibitive costs. It is believed that this issue should be further addressed in the process of developing comprehensive children's legislation, and also in the development of the Family Court system.
The provision for a social workers report on the father's involvement with the child to be taken into account [section 19A(2)(c)] is welcomed, as is the implication that the father should have the benefit of social work services including counselling where possible. There is however a need for clarification as to whether there is a legal obligation on the part of a social worker to report to the court his acknowledgement of paternity and active involvement with the child if these apply, especially if information in this connection has been given to her in confidence.
There is concern about the fact that the proposed amendment to section 11 of the Births and Deaths Registration Act would require the father to apply to the High Court for redress if the mother refuses consent to his registration of paternity. This court is inaccessible to the vast majority of people; in addition its procedures tend to be extremely lengthy, and this would cause protracted delays during which a child would be left in limbo while the mother and alleged father fought this issue to its conclusion. We would suggest that in the case of a dispute the children's court be empowered to immediately order tissue tests, and also to make a ruling as to whether these should be paid for by either party or carried out free of charge at a state facility. There is also a need to provide that the Department of Home Affairs must inform a commissioner who requests information in terms of section 19A(3) that a father has attempted to register his paternity and a dispute is in process, so that the particular children's court handling the adoption application can either take responsibility for settling the issue of paternity itself, or else liaise with the children's court which has been approached by the father if he has made application in another district. It is further proposed that a mechanism for mediation and/or counselling be put in place to address disputes of this kind - e.g. the children's court could request a social worker other than the person dealing with the adoption application to assist the parties to reach agreement if possible. The court should then be required to give due consideration to the report of that social' worker.
There is some concern about delays which may occur in the process of registering paternity with the Department of Home Affairs or because a father delays registering paternity. In the draft Amendment Bill submitted earlier this year by the present group of stakeholders, the following approach was suggested:
"To ensure that the natural father is notified of and has the opportunity to be heard in adoption proceedings, registration of paternity and formal acceptance of responsibility shall occur within 14 days of the birth of the child, or in the case of a child already born at the time of promulgation of this Act, within 21 days of such promulgation. Provided that where the above procedures are undertaken at a later stage, the father will retain the right to be notified and heard if his details have been registered by the Department of Home Affairs .... by the time that an application to adopt is received by the children's court." We request that such a framework be adopted either within the Adoption Affairs Amendment Act itself or the regulations; also that when the Births and Deaths Registration Act and its regulations are amended to accommodates the new provisions, requirements be built in for registration processes to occur within a prescribed time frame, with the child's need to settle in a permanent family environment and proceed with normal bonding and development being held paramount The danger of damage to the child's development must be seen as the first and foremost danger to be avoided in designing and implementing the new system.
The repeal of Section 6 of the Natural Fathers of Children Born out of Wedlock Act is supported and welcomed. We would however urgently request that, where a natural father makes application for custody, access or guardianship of a child in terms of section 2 of that Act, and that child is in the custody of adoptive parents, the high court be bound to expedite the proceedings so as to avoid the child, the prospective adopters and all concerned being caught up in lengthy litigation which prevents the child from being settled in permanent care with the necessary speed, and creates unnecessary anxiety for prospective adopters in the community.
3. COMMENTS ON PROVISIONS REGARDING LEGAL REPRESENTATION FOR THE CHILD
There are some typographical errors and gaps in the wording of some clauses in the proposed section 8A and their meaning is not entirely clear. Overall it would seem to improve matters somewhat by directing the Commissioner to the most accessible Legal Aid office rather than the Legal Aid Board. However it is becoming increasingly clear that there is a need for a carefully designed system going far beyond the issues dealt with in section 8A, not only to provide for appropriate legal representation for child, but also to generally govern the conduct of lawyers in the children's courts.
There are at least three broad areas of concern to be addressed:
(a) Time is of the essence in making decisions about children.
Especially in the case of babies and toddlers, the postponing of decisions for weeks and months and sometimes even years on end can have disastrous effects, because these delays are happening at times which are highly sensitive in terms of bonding and the development of the capacity for healthy human relationships. It is being found that, where adults are hiring lawyers to represent them in court, there is a tendency for the lawyers for the different parties to play protracted "games" involving endless postponements, thereby keeping children in situations of uncertainty which are highly detrimental to them. Many commissioners are intimidated by lawyers and some are ignorant about matters of child development, the dynamics of abuse etc. In some courts the proceedings begin to revolve around the degree to which each lawyer is able to intimidate the commissioner, and the best interest of the child become secondary to these antics.
(b) It is essential that whoever represents the child is truly committed to this responsibility and is not being manipulated by other agendas.
The point was made when the 1996 Bill was drafted that allowing the commissioner to approve the appointment by a parent of the child's legal representative is a recipe for a dangerous conflict of interests - many children are before the children's court precisely because it is alleged that their parents have abused them. Such parents may nevertheless make a favourable impression on the Commissioner who may agree to allow them to appoint the child's representative. Another scenario which is emerging is where a lawyer for an interested party (e.g. someone who wishes to foster a child without there being sufficient grounds to remove the child from the parents) announces himself/herself to be the child's legal representative, and is allowed by an intimidated commissioner to proceed accordingly.
(c) The position of the social worker and his/her agency require due protection if they are to fulfil their protective functions with regard to the child.
As matters stand the commissioner may deny the agency the right to have a legal representative in court, the lawyer may dispute the competence of the social worker to conduct psychosocial assessments and generally "trash" the contents of his/her report without there being anybody in court to ensure that evidence which bears on the safety and wellbeing of the child is given due weight. This is an especially dangerous scenario where inexperienced or unassertive commissioners are involved.
It is recognised that the task of designing a court system which is properly designed and equipped to promote the best interest of the child is a highly complex one. Certain provisions in this respect will probably have to await the completion of the task of comprehensive redrafting of children's legislation. Certain provisions could however be built into the present Act which would so somewhat improve matters.
It is proposed as follows:
- That clause 8A(3) of the present Act, giving the right to a parent to appoint the child's legal representative, be deleted
- That a two-week time limit be set in terms of which the Legal Aid office must if approached by the children’s court, appoint a representative for the child. This takes into account the fact that a Children's Court Enquiry is normally supposed to be finalised within six weeks of being opened
- That the Children's Court be bound to refuse any application for postponement of an enquiry which does not directly revolve around the best interests of the child. Hence, the fact that an adult party's legal representative is going on holiday, or the fact that the adult wishes to change his/her representative (sometimes for the umpteenth time) will not be grounds for postponement.
- That it be clearly stipulated that the employer organisation of a social worker presenting evidence in the children's court is entitled to legal representation if any other party has such representation.