CAPE TOWN 14 April 2005 Sapa
International adoptions of South African children are in a state
of legal limbo, with legislation to give effect to an international
convention signed in 2003 not yet enacted.
“In effect we have a legal anomaly. We have acceded to a legal
convention, but everything that we are doing is ultra vires because
it’s not part of our law… We are operating extra-judicially, can
you imagine the implications?” asked Susan Abro, chairwoman of the
family law committee of the Law Society of South Africa.
She was talking about the country establishing a central
adoption authority under the Hague Convention. The convention
regulates inter-country adoptions to prevent child trafficking and
However, the Children’s Bill which will set up the authority has
not yet been enacted.
Abro said the Law Society wanted lawyers to be part of the
process of adopting children – now almost exclusively the domain
of social workers – because it was a legal process involving a
change in status for the child and the adoptive parents.
“It is absolutely fundamental for lawyers to be part of the
process to best ensure the interests of the child,” she said.
Debbie Wybrow, an attorney involved in inter-country placements,
said the issue of adoptions was a “huge political hot potato”.
Some in government though that considering international
adoptions was an admission that South Africa could not take care of
its own children.
“(But) there are too many children (to adopt)… it shouldn’t be
seen as a failure,” she said.
The Department of Social Development began an audit in March to
determine the need for inter-country adoptions.
The number of local, mostly black orphans, estimated in the
hundreds of thousands, increases yearly as Aids takes its toll on
the adult population.
“We would like to assess if enough efforts are being made by the
adoption organisations to recruit adoptive parents within the
country… before considering inter-country adoptions,” said Dr
Maria Mabetoa, chief director of the children, youth and family
directorate at the department.
She said international adoption should be a last resort.
Mabetoa said South Africa now worked with 11 foreign countries.
None of these are in Africa, because most of them have not signed
the Hague Convention.
Mabetoa said because HIV/Aids orphaned many children, the
central authority was preparing guidelines so that HIV-positive
babies were not discriminated against.
Lynette Schreuder, a director at Child Welfare SA, said the
Department of Social Development would be the central authority
facilitating inter-country adoptions.
The central authority would accredit organisations to conduct
the actual adoptions with countries that have agreements with South
Africa, such as Sweden, Finland, Norway, Belgium and Germany.
Schreuder said while there was no moratorium on international
adoptions, government was reluctant to enter into new arrangements
with other countries.
“If we have exhausted all other avenues for trying to place
children in this country, then children should be adopted by
overseas parents. We believe this is a viable option so that
children have a family.”
Schreuder said there were opposing views on “transracial” or
Child Welfare’s position was that one should not consider race,
colour or creed, but rather the child’s right to a family.
The placement of the child should also follow correct
Schreuder said the organisation had some concerns about the
central authority, which might lack resources from government
perform its task effectively.
“Many organisations had to disband their adoption units or scale
down because of a lack of resources. If the central authority
refers cases to accredited NGOs they have to finance them to do the
Schreuder said by accrediting organisations, the authority would
also be able to monitor unscrupulous agents.
She said Child Welfare SA was against lawyers becoming involved
in adoptions. Schreuder said social workers were experts in
adoption work and could effectively protect children’s rights.
There was “no role” for attorneys.
Mabetoa, however, said the department supported limited
involvement of lawyers.
“The department does not agree with full control of an adoption
placement by a legal practitioner outside an accredited or
designated NGO delivering child protection services.”
Mabetoa said lawyers’ clients were usually the adoptive parents
who paid huge fees, and sometimes the lawyers did not act in the
child’s best interests.
She said the central authority would only accredit child
protection organisations to perform local and international
adoptions. Lawyers should belong to such organisations if they
wanted to be involved in the adoption process.