040908adoptions

ADOPTIONS AND INTERCOUNTRY ADOPTIONS AS PRESCRIBED IN THE CHILDREN’S BILL (AN OPINION FROM THE DEPARTMENT OF SOCIAL DEVELOPMENT)

ADOPTIONS:

A) The process of an adoption is clearly prescribed in Chapter 4 of the Child Care Act, 1983 (Act no 74 of 1983) and the Regulations under the said Act and includes the following processes and role players:

1) The Children’s Court:

The Children’s Court plays a major role in the adoption process and an adoption can only be effected after the Commissioner of Child Welfare issued an order of adoption.

The application for an adoption by the prospective adoptive parents takes place in the Children’s Court.

The consent of the biological parents as well as the child over ten also takes place in the Children’s Court in the presence of the Commissioner of Child Welfare.

The Commissioner of Child Welfare can only issue an adoption order after 60 days expired after the consent was given by the parents and only after considering a report issued by a prescribed report from a social worker or an accredited social worker.

2) Welfare organizations and accredited social workers:

Welfare organizations and accredited social workers play a crucial role in the adoption process as an adoption order can only be issued after consideration of a prescribed report from a social worker or an accredited social worker, as previously mentioned.

In the case where biological parents give consent to parents screened by a welfare organization or accredited social worker the social worker counsels the biological parents and the adoptive parents and accompany them to the Children’s court and assist with the application and consent to be given. These adoptions include adoptions where the biological parents know the adoptive parents as well as adoptions where they do not know the adoptive parents or where the child is abandoned (in statistics referred to married and single adoptions).

In the case where the step-parent apply for the adoption of the child the court usually refers the adoptive parents to a welfare organization/accredited social worker to investigate the matter (in statistics referred to as stepparent adoptions).

In a case where foster parents apply for the adoption of their foster child the welfare organization or accredited social worker usually is very involved with the foster placement as well as the adoption right through the process. (In statistics referred to as foster adoptions).

3) The Department of Social Development:

Most adoption investigations are done by welfare organizations and accredited social workers. Here and there a Departmental service office gets involved with the investigation of an adoption (depending on the type of adoption and area).

The National Department of Social Development plays a major role in the Registration process of every adoption and keeps a national register of all the adoptions.

The National Department of Social Development also is responsible for the duties as prescribed in Regulation 28 in the current Regulations prescribing the issue of divulging of confidential information where an adoption is concerned.

4) The Counsel for social workers and related professions:

The Counsel plays a role regarding the accreditation of private social worker to register a specially in adoption work as well as regulating fees payable for services done in an adoption by an accredited social worker.

The Counsel also plays a major role in the disciplinary action if a social worker is reported for misconduct regarding an adoption and the disciplinary hearings involved.

5) Lawyers:

Lawyers do not really play a role in the adoption process and are only included if there is a dispute or if appointed by any person in the adoption process, e.g. the biological parents or adoptive parents.

Since adoptions started in South Africa, very few cases included services of a lawyer.

B) Although most countries in the world do not allow the services of private social workers in adoptions (the International Recourse Center for Intercountry adoption also recommended that private practitioners not be allowed to render adoption service), there are reasons why private social workers (if accredit/registered a speciality in adoption services work in adoption work) are allowed to perform adoption services in South Africa as prescribed in current legislation.

Welfare organizations and NGO’s tend to focus much more on community development.

Time and human recourses to attend in depth to individual cases, such as adoptions, do not exist.

Subsidies for specialized services, such as adoptions, are cut to the bone and welfare organizations cannot afford to render these services.

The salaries of social workers are so poor that many experienced social workers leave the profession and rather seek other employment or become private practitioners rendering social worker.

Most private practitioners worked for welfare organizations and government for many years and have a lot of experience and skills to offer.

C) Changes included in the Children’s Bill (Chapter 16):

(a) Adoption legislation was challenged, especially since the Constitutional Court was established and three major cases forced the Department of Social Development to alter legislation namely: a) Lawry Fraser, 1996, allowing the natural father of a child born out of wedlock to adopt the child or to give consent to the adoption.

b) Fitzpatrick case, 2000, allowing non South Africa citizens to adopt a South African born child.

c) De Vos/DuToit case, 2002, allowing same sex couples to adopt a child jointly.

The Chapter in the Bill is more comprehensive and detailed than the current Chapter in the Children’s Bill and includes a few new Sections:

Section 228: Describes an adoption.

Section 229: Give the purposes of an adoption

Section 230: Describes children who may be adopted

Section 231: Describes who may adopt a child including options found to be unconstitutional previously when not included, e.g. adoption by the biological father, a non-South African citizen, partners in a domestic conjugal life-partnership, including the kinship caregiver of the child to adopt the child. (nr3) Specifically says that no one should be disqualified because of financial status and (nr4) a person may apply for means tested social assistance where applicable, reasoning: to also accommodate the poorest of the poor.

Section 232: Elaborates on the consent to be given in the case on an adoption leaving out, the child over the age of 10 years of age to give consent,: reasoning: Not all children reach the same level of maturity at the age of ten years, a child should not have a veto right in his adoption. (I do not agree).

Section 233: Makes provision for the issuing of freeing orders.

Section 234: Elaborates on conditions when consent is not needed.

Section 235,236,237: Explain in more detail than the current Act, the gathering of information, notice to be given, and application for adoptions.

Section 238: Concludes in depth the consideration of adoption applications

Section 239: Describes the process when unreasonable withholding of consent occurs.

Section 240: Elaborates and describes more effects of an adoption order.

Section 241-244: Describes rescission, grounds, notice and effect of rescission.

Section 245, 246: Describes the recording of adoption in birth register.

Section 247/248: Includes the adoption register and access to information while previously only mentioned in Regulations.

Section 249: Explains consideration in respect of adoption. (I think (b) can be taken out,

lawyers are hardly ever involved in an adoption, and will never do legal services for free

anyway.)

Section 250: Mention the persons who are allowed to provide adoption services. (Typing error: 250(b) should read 251 not 151.)

Section 251: Describes accreditation with regard to performing of adoption work. (I disagree with the whole Section; leave the responsibility to the Counsel to accredit a social worker in private practice, the Department has enough responsibilities. Maybe leave the rest as in the current act as it’s latest amendment).

Section 252: Describes advertising.

D) The following statistics for 2000 and then in-2003 gives an idea of the number of adoption orders issued by the different Children’s Courts:

Children’s Court	Number of Adoptions 2000	Number of Adoptions 2003
Alberton Atlantis Balfour Barberton Beaufort-Wes Bellville Benoni Bethlehem Bloemfontein Boksburg Botshabelo Brakpan Brits Bronkhorstspruit Caledon Camperdown Ceres Chatsworth Cullinan Delmas De Aar Durban Empamngeni Evander Garankuwa George Germiston Goodwood Heidelberg TVL Hermanus Humansdorp Johannesburg Kaapstad Kabokweni: Kempton Park Kimberley Klerksdorp Knysna Koffiefontein Kokstad Kroonstad Krugersdorp Kuilsrivier Ladysmith Lichtenburg Malmesbury Mdantsane Meyerton Middelburg Mitchell plein Mmabatho Mosselbaai Nelspruit Newcastle Ngwelezane Nigel Oberholzer Oos Londen Outshoorn Paarl Parys Phalaborwa Pietermaritzburg Pietersburg Pinetown Port Elizabeth Port Shepstone Potchefstroom Potgietersrust Pretoria Pretoria Noord Randburg Randfontein Roodepoort Rustenburg Sasolburg Scottburgh Simonstad Somerset Wes Springbok Springs Standerton Stanger Stellenbosh Strand Temba Thabazimbi Uitenhage Umlazi Vereniging Warmbad	26 24 3 9 4 52 63 11 58 34 2 18 15 4 4 7 4 7 6 3 4 89 27 25 10 16 60 55 11 5 4 214 31 4 65 25 30 10 5 9 8 56 65 6 6 7 4 10 10 28 7 9 11 14 4 10 19 31 5 15 5 7 40 26 52 99 11 18 5 257 45 98 9 51 25 12 8 21 10 6 39 8 13 8 5 7 6 29 4 22 13	32 5 1 5 5 63 80 5 61 30 10 36 14 6 2 5 0 5 3 8 0 88 15 19 11 9 44 21 11 4 2 238 40 0 52 10 28 5 1 3 11 38 68 0 4 1 1 1 6 32 2 11 11 10 2 14 13 22 2 8 2 3 32 14 32 69 20 13 5 326 29 89 2 63 31 9 8 20 11 5 34 8 10 11 4 6 5 31 3 21 15

According to Provinces	Number of Adoptions 2000	Number of Adoptions 2003
Gauteng Limpopo Mpumalanga North West Western Cape Eastern Cape Northern Cape Fee State Kwazulu Natal	1096 57 98 136 325 212 40 87 287	1143 48 80 121 284 157 20 80 231

E) The following statistics for 2000 and then 2003 gives an indication of the number of adoptions per social welfare roll player involved:

ORGANIZATION	Number of Adoptions 2000	Number of Adoptions 2003
ACVV Apostoliese Geloofsending(ABBA) Catholic Womans League Child and Family Welfare Christelike Maatskaplike Raad Department of Social Development Ondersteuningsraad OVV Private social work practitioners SAVF	77 100 22 1095 579 400 96 12 354 41	9 200 32 1048 402 359 10 8 440 22

INTERCOUNRTY ADOPTIONS:

A) Intercountry adoptions became a reality in South Africa in the year 2000 and the following can be mentioned:

In terms of Sect 18(4)(f) of the current Act, non South African citizens who were not resident in the country could not adopt South African children.

During May 2000, however this Section of the said Act was found to be unconstitutional by the Constitutional Court and deleted in its entirety. This opened up the practice of intercountry adoption of South African born children.

In South Africa adoptions are regulated in terms of Chapter 4 of the current Act. This Chapter however was not developed to include the option of intercountry adoption.

The South African Law Commission the reviewed the current Act and compiled a Chapter to be included in the Children’s Bill.

They also strongly recommend that South Africa became a member of the Hague Convention of 1993, the Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption.

Since 2000 intercountry adoptions took place and officials of the Registrar of Adoptions became concerned as the Department of Social Development only became aware of these adoptions once the matter was finalized by court and once the adoption needed to be registered.

Interest from foreign countries was overwhelming and some foreigners even insisted to adopt a South African child. This created a tremendous problem as legislation and structures were not in place in many cases social workers did not know how to handle these enquiries.

During 2003 officials from the Department of Social Development made a submission to the Director-General to establish and interim Central Authority within the Department requesting welfare agencies and private social workers to at least inform the Department when an intercountry adoption is considered as well as the reasons why a local adoption could not take place.

On 1 December 2003 South Africa acceded the Convention and the Department is in the process of appointing personnel.

The reasons for acceding the Convention are as follows:

The Convention embraces certain basic principles and forces a country to comply with the rules.

The Convention insists on the establishment of a Central Authority in each country to monitor and evaluate intercountry adoption.

The Convention puts structures in place to prevent child trafficking.

The Convention allows a system of accreditation.

The Convention prevents inappropriate financial gain to take place.

The Convention ensures that once and adoption order is issued in one country it will be recognized in the other country.

The Convention gives the Central Authority power.

B) Currently the process of an intercountry adoption is as follows:

An agency or private social worker who experience a problem with children that can not be placed with adoptive parent/or children that end up lying in hospital for years and eventually grow up without a family, close a working agreement with a foreign country.

The foreign organization sends a number of profiles of interested couples who are interested to adopt a South African child and who have already been thoroughly screened to the social worker or organization.

If a child cannot be placed locally, the social worker/organization write a letter with the details of the child, efforts undertaken to place the child locally, which country they intend to work with.

Only after the Department acknowledged the plan of action, the organization can continue with an intercountry adoption.

The organization then decides on a match and informs the foreign organization of their decision.

The foreign organization sends a letter to agree or disagree with the match and informs the prospective adoptive parents.

Once every one is in agreement, arrangements are made for the couple to travel to South Africa. In the meantime the social worker/organization in South Africa arrange for the court hearings ext.

If the couple arrives in South Africa, the social worker/organization is responsible for handing over the child, counseling, monitoring of bonding, ext.

The court proceedings are the same as a local adoption.

Once the adoption order is issued the adoption gets registered with the Department of Social Development.

Because of the fact that South Africa is a Hague country, the Department of Social Development had to start issuing a certificate of Conformity for every adoption done after December 2003.

C) Since intercountry adoptions started in South Africa, the Department of Social Development was requested to assist and to advice in many cases. The following basic advice was always given:

Social workers/welfare organizations should not work randomly or with any country, but with one country they get to know well and with whom they close a working agreement: Reasoning: It is very important to know the country the child is going to, to know the legislation in that country, to know what is expected of one another and what roles each party will play and to trust the system and counseling service of the other country.

Do not deal with individual foreign enquirers or allow foreigners to harass you. Be very clear that you only work according to a working agreement with an organization.

Foreigners should not be allowed to visit children’s homes and bond with children with the idea of going back to their country to pressure their government to adopt the said child from South Africa. Reasoning: If South Africa decides to consider an intercountry adoption it is our responsibility to choose the best possible option and not to be forced into a decision.

Intercountry adoption is not an option, but an alternative ONLY, if ALL other options fail. Our concern and responsibilities only lies with our children and not with interested/childless foreigners.

South Africa is mainly a sending country and therefore needs to take responsibility for our decisions. We should not be influenced by anyone. Should something happen we do not agree with, e.g. a certain country puts pressure on us to consider gay couples, we must close the working agreement.

D) Chapter 17 of the Children’s Bill was redrafted from the original version to include processes as described in the Convention and to reflect the current practices on intercountry adoptions. The following Sections were included:

Section 254: explains the purposes of the Chapter

Section 255: gives effect to the Convention

Section 256: explains the Central Authority

Section 257: explains the delegation of functions of certain Articles in the Hague to a designated child protection organization accredited to perform intercountry adoptions. Please note that private social workers and lawyers are excluded. Reasoning: By accrediting an organization you give the organization power to act on behalf of the government of the country. It is a very big decision and should not be taken by individuals or subjective parties. Fees are payable (this is a world wide accepted principle) and we are dealing with foreign countries with stronger currencies than South Africa. Money should be utilized to invest back into the needs of children or to strengthen organizations and NOT to enrich individuals. Organizations tend to exist for many years, while private social workers may come and go. One day the adoptee might wish to enquire regarding his roots, what then?

Section 258: explains accreditation of child protection organization for intercountry adoptions.

Section 259: explains the working agreement.

Section 260: explains the procedures of children by persons in convention countries.

Section 261: explains procedures of children by persons in non-Convention countries. Reasoning; although it seems better to only work with convention countries, South Africa does have a further dimension to consider: South Africa is surrounded by neighbor countries and although the cultures differ from South Africa, it is not as radical as other countries. The race of the couple in many cases could be the same as the child and the country is much closer to where the child originates. The Johannesburg Child Welfare has a working agreement with Botswana, a well-established, wealthy country and a few successful adoptions already took place. Other countries such as Namibia, Kenya, might also in future be considered and none of them are convention countries.

Section 262: Describes the issuing of an adoption compliance certificate (The same as the certificate of conformity in the Hague)

Section 263: explains the adoption of children from convention countries by persons in the Republic. Although South Africa is mainly a sending country, we do not want to be too rigid and exclude the possibility of receiving children in legislation

Section 264: explains the adoption of children from non-convention countries by persons in the Republic. A very few sending countries are convention countries, most probably only India, and once again one does not want to be too rigid in legislation. (That could rather be captured in regulations.

Section 265: gives effect to recognition of a foreign adoption order if a compliance certificate was issued. This is according to the convention and very important. Legislation of the Department of Home Affairs will have to change to accommodate this.

Section 266: Gives evidential value to the conformity certificate.

Section 267: explains procedures if an adoption took place in a non-convention country.

Section 268: gives effect to recognition of an "adoption order issued in another country" I suggest the wording in the Children’s Bill should change. This Section in the Bull is very important and currently a serious problem as we have no legislation in place to cover these issues.

Section 269: gives the Central Authority the right to refuse to recognize an adoption order issued in another country.

Section 270: explains that the adoption will have to be redone in South Africa to be recognized.

Section 271: explains access to information, the same as with a local adoption.

Section 272: Stresses that no intercountry adoption may take place otherwise than in terms of this Chapter.

E) The following role players will therefore be involved in an intercountry adoption:

The Central Authority in South Africa (The Department of Social Development)

The Central Authority in the receiving country

The accredited child protection organization in South Africa

The accredited child protection organization in the receiving country

The Children’s Court

The Registrar of Adoptions (The Department of Social Development)

F) As previously mentioned under adoptions, private social workers do have a place in adoption work in South Africa. The question however is: Should they be considered for accreditation in intercountry adoptions or should they be excluded? The following issues are of concern:

a) Who will be accredited and who not?

b) Can one really be objective in a decision if money is involved?

c) The Counsel as well SASSWIPP do not support the idea of private social workers doing intercountry adoptions.

d) World wide and in the Convention it is clear that an organization should be accredited.

The following issues can be argued in their favor:

They work in units and therefore the decision is not by an individual.

They are already approved by a body to do adoption work in South Africa

They usually are social workers with a lot of experience

They do have the energy and time to put in. (An intercountry adoption is a lot of work and arrangements)

The Registrar of Adoptions as well as Commissioners of Child Welfare are very impressed with their work and the quality of reports.

The Department of Social Development cannot complain about the excellent co-operation received by the private social workers the past four years, especially with intercountry adoptions.

CONCLUSION:

The accreditation of private social workers can only be considered if: a strong Central Authority is in place and the two parties can work together. The Central Authority must take part in the whole process and must monitor each and every intercountry adoption as well as the payments made for the adoption.

G) The accreditation of lawyers is not needed. The Convention’s intention was not to give lawyers an opportunity for accreditation. (SEE ATTACHED CORRESPONDENCE BETWEEN MRS BLOEM AND MR DUNCAN FROM THE HAGUE IN THE NETHERLANDS)

H) The following statistics give an indication of the number of intercountry adoption done in 2002, and 2003, as well as the organizations involved:

Year 2002 Year 2003

182 224

Commissioner’s of Child Welfare of Pretoria and Johannesburg issued these orders. Since intercountry adoption started in South Africa the only other adoption orders were issued in Western Cape and KwaZulu Natal.

I) The following organizations/role players were involved:

ORGANIZATION	Number of Adoptions 2002	Number of Adoptions 2003
ABBA Adoptions (Apostolic Faith Mission) Child and family welfare Catholic Woman’s League Private social workers	131 17 2 32	159 21 4 40

ACCORDING TO PROVINCES	NUMBER OF ADOPTIONS 2002 2003		2004 (UP TILL 31 AUGUST 2004)
Gauteng Limpopo Mpumalanga North West Western Cape Eastern Cape Northern Cape Free State KwaZulu-Natal	178 0 0 0 2 0 0 0 2	217 0 0 0 4 0 0 0 3	130 0 0 0 10 0 0 - 4

Marike.adoptions and intercountry adoptions as prescribed in the children