"Adoption services" are not defined in the Children’s Bill, but should be, possibly as "facilitating the permanent placement of a child by means of an adoption".

Section 250 of the Children’s Bill allows only accredited adoption social workers or designated child protection organisations to provide adoption services.

But there are specialist family law attorneys who have vast experience in co-ordinating teams of professionals in matters involving children, particularly in permanent placements of children via the High Court.

The nett effect of the Bill in its present form, however, is that attorneys have been excluded from facilitating a legal process in a court of law with life-long legal consequences for children and their parents.

To refuse to accredit specialists to perform adoption and inter-country adoption services just because they are attorneys is to deny those attorneys the right to continue to spearhead teams of social workers, paediatricians and other professionals and to guide them through the myriad of legal and other issues that form part and parcel of every permanent placement of a child. In so doing, the child at the centre of the process is deprived of the benefit of that specialist attorney’s experience and legal expertise.

We would go so far as to say that an attorney should be involved in every matter involving the permanent placement of a child because it involves inter alia a change in status of the child and is therefore a legal process.

It is too late to rely on the legal knowledge of the Commissioner or Judge hearing the matter because that hearing is the culmination of months of preparation. Invariably the prospective parent and child have begun the bonding process. Expectations have been raised, money and time have been spent on spent on travel and other arrangements, plans have been put in place, dreams have been dreamed. What is needed is legal input from inception in providing adoption services for the protection of all concerned.

Every person and child has the right to legal representation: that is not what is being debated. What is in issue is the exclusion of attorneys from providing adoption services and from facilitating the permanent placement of children.

We acknowledge that social workers have a valuable role to play in assessing the background and circumstances of the child and family and that reports from accredited social workers in both the sending and receiving country are essential.

We are not saying that social workers should be excluded but that rather that attorneys should also be permitted to perform adoption services.

Because the adoption process is legal in nature, we submit that that it would be both discriminatory and unconstitutional to refuse attorneys the right to apply for accreditation to perform adoption services and to be a part of that legal process.

South Africa has acceded to the Hague Convention on Inter-Country Adoption and we are accordingly party to an international convention regulating adoptions between some 48 member states.

Once Parliament officially enacts the Convention, the Minister of Social Development will be responsible for appointing a Central Authority whose role will be to regulate inter-country adoptions. Many member states listed on the official Hague Convention website cite their Ministries of Justice, Legal or Foreign Affairs as Central Authorities. International cognisance is therefore given to the fact that the permanent placement of children is an intersectoral concern, also involving the Ministries of Justice and Foreign Affairs.

Adoption agencies and professionals with whom we have dealt in Canada, the United States of America, the United Kingdom, Hungary, Italy, the Netherlands and Germany, have expressed disbelief at South Africa’s traditional exclusion of attorneys and its plans to continue denying attorneys their constitutional right to practice law by performing inter-country adoption services. It is important to note that the Hague Convention does not exclude attorneys from performing inter-country adoption services.

Rather, Article 10 of the Hague Convention stipulates that accreditation should be granted only to bodies who demonstrate their "competence to carry out properly the tasks with which they may be entrusted". Article 11 states that such accredited bodies shall "be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of inter-country adoptions".

There are attorneys who have experience in local and inter-country placements and who have already demonstrated their competence and trustworthiness in this important area of family law.

As practising attorneys, we have dealt with numerous legal issues in placing children locally and in other countries.

And because they are legal issues, there can be no doubt that an attorney is the most qualified person to advise as to what would be in a particular child’s best interests and to facilitate the placement of that child.

The legal issues arising in inter-country adoptions include:-

• emigration law in both the Sending and Receiving Countries;

• immigration law in both countries;

• legal issues arising with the Departments of Justice and Constitutional Development, of Home Affairs, of Foreign Affairs, of Social Development and of International Social Services in both countries;

• the legal status of parents (biological, foster and adoptive parents) and of the child with regards to birth, marriage, divorce and the adoption itself, in both countries;

• meeting the standards of proof required for showing abandonment of the child in a court of law;

• whether the consent of the biological parent/s may legally be dispensed with;

• what status the child will be given in the Receiving Country in light of medical and social security benefits;

• the appropriate wording of the Court order so as to comply fully with the Receiving Country’s laws, particularly when the child has not been orphaned;

• the importance of obtaining a mirror order as opposed to formalising the adoption in the Receiving Country;

• liaising with specialist attorneys in other countries with regards all of the above issues, especially post-placement;

• keeping up to date with all developments in the legislation and regulations regarding child and family law and immigration and emigration law in both the Sending and Receiving Countries.

And yet, despite adoptions being primarily a legal process, no mention is made of attorneys in the definition or accreditation provisions of the draft Bill.

Only adoption social workers and child protection organisations are cited in the definitions. Section 250 makes it clear that only adoption social workers, designated child protection organisations and the Central Authority may provide adoption services. Accreditation in terms of Section 251 may only be granted to a social worker in private practice or to a designated child protection organisation.

Attorneys have therefore been completely excluded from performing adoption services in terms of the Children’s Bill.

And Section 272 goes on to stipulate that no person may process an inter-country adoption in any other manner!

Up until fairly recently, only South Africans could adopt South African children. However, the Constitutional Court decided that this discriminated against foreigners and it is now possible for people living in other countries to adopt children from our country.

There are two ways that children can be placed permanently with parents: the one is by way of adoption through the Children’s Courts, the other is by asking for guardianship (legal rights) and custody of that child.

The High Court of South Africa is the upper guardian of all children in our country. Attorneys have therefore been approaching the High Court to make a finding as to what would be in the best interests of a particular child, and where appropriate, awards of guardianship and custody have been made.

When deciding on whether to place a child within a family, the High Court evaluates the evidence before it. This would usually include detailed affidavits made under oath and attested to by each of the prospective parents and other relevant parties, Notices of Consent to the placement by those individuals and organisations who have cared for the child, a social worker’s report on the prospective family, a social worker’s report on the child’s history and circumstances, psychological evaluations of the prospective family, interviews with the prospective grandparents, financial verification, criminal record checks, confirmatory affidavits from respected community members, details of the support likely to be received by the family, information as to the child’s prospective schooling and daily routine, as well as proof of the Receiving Country’s acceptance of the child.

In addition, because the permanent placement of a child by means of an adoption or guardianship and custody application results in a change in legal status, the High Court requires that all relevant parties should be available to give oral evidence before the Judge, not only to verify the affidavit evidence but also to answer any additional queries the Court might have. Where a biological parent has consented the application, the Court may well call on that parent to satisfy itself that any written consent was voluntarily given.

The High Court also has regard to the existing statutes and to case law. The factors that will be looked at when considering a permanent placement include those listed in the decision of King J in McCall 1994 3 SA 201(C), namely:-

1. the love, affection and other emotional ties which exist between parent and child;
2. the impact of the capabilities, character and temperament of the parent on the child’s needs and desires;
3. the parent’s insight, understanding and sensitivity with regard to the child’s feelings and the ability of the parent to communicate with the child;
4. the capacity and disposition of the parent to give the child the guidance required;
5. the parent’s ability to provide physical needs such as food, clothing, housing and the provision of economic security;
6. the parent’s ability to provide for the educational well-being and security of the child, both religious and secular;
7. the parent’s ability to provide for the child’s emotional, psychological, cultural and environmental development;
8. the parent’s mental and physical health and moral fitness;
9. the stability or otherwise of the child’s existing environment, having regard to the desirability or otherwise of maintaining the status quo;
10. the desirability or otherwise of keeping siblings together;
11. the child’s preference, if the court is satisfied that the child’s preference should be taken into consideration;
12. the desirability or otherwise of applying the doctrine of same sex matching;
13. Any other factor relevant to the particular case.

The standard of proof in the High Court is therefore very high and is uniformly applied by judges with many years of experience in reaching decisions based on what would be in a particular child’s best interests, drawing on tried-and-tested case law.

The same standard of excellence and experience unfortunately cannot be ascribed across the board to the Commissioners who sit in the Children’s Courts processing adoptions. Whilst there are certain Commissioners who have experience in the field of inter-country placements and are to be

commended on their knowledge of the law and on their dedication to children, the vast majority do not have the necessary experience. This lack of experience, coupled with no evidence being required on affidavit or under oath, has resulted in what can at best be described as "suspect" placements: placements where applicants have "forum shopped" for an agreeable Commissioner, where children have been moved from one court’s jurisdiction to another without any court order sanctioning such moves, and where biological mothers have given consents under duress and have, after investigation and counselling, withdrawn same.

And at the end of the day, the central figure who stands to lose the most is the child, whose very interests were supposed to be protected by the adults in the court process.

We submit that because of the limited control South Africa has post-placement in inter-country adoptions, it is essential that the extraordinarily high standard of the High Court be applied prior to any placement being made.

Because there is greater post-placement control over local and national adoptions, these placements could be dealt with in the local Children’s Courts and Regional Courts respectively. However, the standard in those courts would have to be substantially raised: at the very least, detailed evidence on affidavit would have to be provided by all relevant parties and those parties would have to be physically present in court to give oral evidence.

The children of our country can only benefit from these improved safeguards.

Sadly, any approach to the High Court will no longer be possible if the draft provisions of Section 24 are made final. That section states that any application by a non-South African citizen for guardianship or full parental responsibilities is to be regarded as an inter-country adoption.

This is notwithstanding Section 45(4) which declares that no provisions are to be construed as limiting the inherent jurisdiction of the High Court in its capacity as upper guardian of all minors. Or Section 45(3) which gives the High and Divorce Courts exclusive jurisdiction with regards the "departure or removal…" of a child from the Republic. Yet Section 24 clearly does just that in prohibiting any future guardianship and custody applications to the High Court: in terms of the existing provisions, the only possible way for any such matter to be heard is as an adoption in the Children’s Court.

With the High Court route not being an option and with attorneys being precluded from performing inter-country adoption services, the Bill in its current form effectively prevents attorneys from being involved in the permanent placement of children at all.

We have four main problems with Section 24:-

1. All permanent inter-country placements of children will be deemed to be inter-country adoptions;
2. Not all prospective applicants want to adopt: some want guardianship and custody so as to properly care for and provide for their children, without depriving them of their South African birthright;
3. Section 24 limits the inherent jurisdiction of the High Court by relegating all hearings to the Children’s Court;
4. Because attorneys are excluded from performing adoption services and with Section 24 attempting to close the door to the High Court, attorneys will effectively be prevented from becoming involved in the permanent placement of children in any manner whatsoever.

The changes that would need to be made to the Bill to address our concerns are quite simple.

We would only need to:-

• define adoption services;

• define an adoption attorney;

• include adoption attorneys with regard to accreditation, adoption working agreements and advertising wherever reference is made to social workers;

• include the words Regional or High Court in each instance where reference is made to Children’s Court so as to ensure that local adoptions are conducted in the Children’s Court, national adoptions are conducted in the Regional or equivalent family court, with inter-country adoptions being dealt with in the High Court;

• remove the presumption that all guardianships and permanent transfer of parental rights applications by non-South Africans are deemed to be adoptions, thereby enabling the High Court to exercise its discretion as to what would be in a particular child’s best interests;

• Insert provisions requiring all applications for permanent placements of children to be supported by both affidavit and oral evidence.

An adoption attorney would be defined in a manner similar to an adoption social worker and would be an attorney in private practice, in a law firm or an agency, or in the employ of a child protection organisation, who has a speciality in adoption services registered with the Law Society of South Africa and who is accredited by the Director-General of the Department of Social Development to perform adoption and/or inter-country adoption services.

The Law Society of South Africa would register those attorneys who either have previous experience and have demonstrated their competence or who have been trained to perform adoption services. Training would be provided by the Law Society of South Africa. The Law Society would then propose the names of duly registered attorneys to the Director-General of Justice, who would in turn forward them to the Director-General of Social Development, for the purposes of accreditation.

This would ensure full and proper compliance with Articles 10 and 11 of the Hague Convention.

In accordance with the Hague Convention, the first choice for a child will always be local or national placement. Where this is not viable, placement internationally is second.

Permanent placement will give many children an opportunity of escaping from circumstances and lives they did not ask for and do not deserve.

We need to raise the standard in order to protect those children. Oral and affidavit evidence must be mandatory before any child is placed anywhere.

Being more complex by nature and with less post-placement control, inter-country placements should be dealt with by High Court judges with their wealth of experience in permanent placements.

The children in our country deserve the best – the best attorneys, the best social workers, the best paediatricians, the best multidisciplinary team of experts working together to protect them.

After all, Section 24 of our Constitution guarantees a child the right to security.

Permanent placements done properly are the only way of guaranteeing a child that very security.

WYBROW-OLIVER ATTORNEYS

Telephone: 031 – 7674504

Telefax: 031 – 7671490