Adoption

Adoption:

 

In studying adoption students have to refer to:-

·       Children’s Act 38 of 2005;

·       Chapter 23 of the text book Family law, J Heaton, LexiNexis

 

The following should be noted:

*    Adoption is the formal process by which existing PRR are terminated and vested in another person.

*    The Children’s act governs adoption in RSA and inter-country adoptions.

*    The act provides that any person may adopt as long as the adoptive parent is above 18 years of age.

Adoption is therefore the legal act of permanently placing a child with a parent or parents other than the child’s birth/biological mother or father. A legal adoption order has the effect of terminating the parental rights of the birth mother and father, while transferring (i.e. ‘handing over to’) the parental rights and responsibilities to the adoptive parents.

Section 230(3) provides that a child is adoptable if: a. the child is an orphan and has no guardian or caregiver who is willing to adopt the child; b. the whereabouts of the child’s parent or guardian cannot be established; c. the child has been abandoned; d. the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; or f. the child is in need of a permanent alternative placement. Section 231 provides that a adoptable child may be adopted:  a. jointly by a husband and wife, partners in a permanent domestic life-partnership, or other persons sharing a common household and forming a permanent family unit; b. by a widower, widow, divorced or unmarried person; c. by a married person whose spouse is the parent of the child; d. by the biological father of a child born out of wedlock; or e. by the foster parent of the child.  The adoption process In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker functioning within the statutory accredited adoption system. When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency. All prospective adoptive parents are required to undergo a screening and preparation process.The screening process normally involves orientation meetings, interviews with a social worker, full medicals, marriage and psychological assessments, home visits, police clearance and references. Once the screening process is complete, applicants are placed on a waiting list for a child. There is usually a period of introduction to the child, the length of time varying according to the child’s age.

 

RSA Adoptions:

 

*    In RSA only a minor child can be adopted

*    The minor must also be adoptable (adoptability refers to a child that is a orphan, have been abandoned or abused or in need of a permanent alternative placement)

*    An adoption social welfare officer determines whether a child is adoptable

*    The Director General of Social Development has to keep a register namely the “register on adoptable children and prospective adoptive parents” (RACAP)

 

Adoptive parents

 

*    Any adoptive parent must be found to be fit and proper

*    The adoption application must be made in the prescribed manner at the children’s court.

*    The application must be accompanied by a report from the social welfare officer and a letter from the dept of social development recommending the adoption.

*    The consent of all guardians must be obtained, if the guardian is a minor she must be assisted by her guardian. 

*    Please refer to the section dealing with when consent is not required -page 293. (Sec 236 of Children’s act.)

*    If the adoptable child is 10 years of age and mature enough to understand the proceedings his/her consent must also be obtained.

*    Before consent is obtained the parties must be counseled by a social officer

*    Any party to the adoption may withdraw his/her consent within 60 days after signing the adoption application; hence an adoption order may only be finalized thereafter.

*    If the consent of a guardian is unreasonably withheld one can apply to the high court to dispense with such consent ito sec 241 of the Children’s act.

 

A freeing order: Sec 235 of the Children’s act

A parent or guardian may request to be freed from PRR pending the adoption application.

“a child protection organization accredited in terms of section 25 1 to

Provide adoption services or an adoption social worker may issue an order freeing a parent or person whose consent to the adoption of the child is required in terms of section 233 from parental responsibilities and rights in respect of the child pending the adoption of the child.”

Consideration of order: Sec 240 of Children’s act

 

*    The court must take all relevant circumstances into account (such as the religious and cultural background of the child, the prospective parent’s circumstances, the adoptive parent’s circumstances and nature as well as the report form the social welfare officer)

*    An adoption order may only be made if it is in the child’s best interest and the prospective parents have been properly assessed to be fit and proper parents and the consent of all parties have been obtained.

 

Notice to be given of proposed adoption: Sec 328 of the Children’s Act

 

238. “(1) when a child becomes available for adoption, the presiding officer must without delay cause the sheriff to serve a notice on each person whose consent to the adoption is required in terms of section 233.

(2) The notice must-

(a) Inform the person whose consent is sought of the proposed adoption of the child; and

(b) request that person either to consent to or to withhold consent for the adoption, or, if that person is the biological father of the child to whom the mother is not married, request him to consent to or withhold consent for the adoption, or to apply in terms of section 239 for the adoption of the child.

(3) if a person on whom a notice in terms of subsection (1) has been served fails to comply with a request contained in the notice within 30 days, that person must be regarded as having consented to the adoption.”

 

Advertisement & Payment:

 

*    Under no circumstances are one allowed to compensate or advertise for the adoption of a child. The only compensation that may be paid is in respect of the birth mother’s medical expenses.

 

Effect of order: Sec 234 & 242 of Children’s Act

 

*         Family members of the biological parents of the child also loses any PRR claim that may have in respect of the child, unless a post adoption agreement has been entered into in terms whereof the  court approves limited means to retain a link between the family members and the said child. The agreement must be drafted in a particular format.

 

*         Sec 234.( 1) The parent or guardian of a child may, before an application for the adoption of a child is made in terms of section 239, enter into a post-adoption agreement with a (a) communication, including visitation between the child and the parent or guardian concerned and such other person as may be stipulated in the agreement;…. 

 

Rescission: Sec 243 of Children’s Act

 

*    An adoption order may be rescinded on application by an interested party

*    The application must be made to the high court/children’s court within a reasonable period of time (not more than 2 years)

*    If the rescission order is granted, the PRR ceases from such date the rescission is made.

 

 

Inter-country adoption:

 

The purposes of this Chapter are give effect to the Hague Convention on Inter-country Adoption and to provide for the recognition of certain foreign adoptions. A convention country is therefore a country that forms part of the Hague convention.

 

Chapter 16 schedule 1 Children’s act governs inter-country adoptions. One must differentiate between the following forms of inter-country adoptions:

 

*         1. Adoption of a child that is habitually resident in RSA by an adoptive parent resident in a convention country.

 

In this case the prospective adoptive parent must apply to the central authority of the convention country where she resides (Italy). The central authority of that country (Italy) must compile a report and submit same to the DG social development in RSA. If a suitable child is available in RSA, the DG prepares a report and submits same to the central authority of the country where the prospective adoptive parent resides (Italy). If the central authorities of the 2 countries agree on the adoption, the DG refers the matter to children’s court in RSA who will decide on the adoption.

 

Please refer to the requirements in your text books.

 

*         2. Adoption of a child that is habitually resident in RSA, by a parent from a non-convention country:

 

Must apply to competent authority of the country then follow the same procedure as above.  Japan is not a convention country; hence this situation will arise when a Japanese prospective parent wants to adopt a RSA child. The prospective parent must approach the Japanese authority and then follow the same procedure as in 1.

 

*         3. Adoption by a RSA resident of a child who is habitually resident in convention country:

 

Apply to central authority, as 1

 

*         4. Adoption by a RSA parent of a child in a non-convention country:

 

Same as in 2.

 

Convention country adoptions are recognition as foreign adoptions; however in the case of non-convention countries a declaratory order may be requested to recognize the adoption. 

 

HCCH Members

HCCH MEMBERS

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The Hague Conference has currently 81 Members: 80 States and 1 Regional Economic Integration Organisation. For the dates of membership, please consult the status table of the Statute of the Hague Conference.

A Albania
Andorra
Argentina
Armenia
Australia
Austria
Azerbaijan

B Belarus
Belgium
Bosnia and Herzegovina
Brazil
Bulgaria
Burkina Faso

C Canada
Chile
China, People's Republic of
Costa Rica
Croatia
Cyprus
Czech Republic

D Denmark

E Ecuador
Egypt
Estonia
European Union

F Finland
France

G Georgia
Germany
Greece

H Hungary

I Iceland
India
Ireland
Israel
Italy

J Japan
Jordan

K Korea, Republic of

L Latvia
Lithuania
Luxembourg

M Malaysia
Malta
Mauritius
Mexico
Monaco
Montenegro
Morocco

N Netherlands
New Zealand
Norway

P Panama
Paraguay
Peru
Philippines
Poland
Portugal

R Republic of Moldova
Romania
Russian Federation

S Serbia
Singapore
Slovakia
Slovenia
South Africa
Spain
Sri Lanka
Suriname
Sweden
Switzerland

T The former Yugoslav Republic of Macedonia
Tunisia
Turkey

U Ukraine
United Kingdom of Great Britain and Northern Ireland
United States of America
Uruguay

V Venezuela
Viet Nam

Z Zambia

2015 Exam paper

Question 1:

 

John Grey is a mechanical engineer. He is employed by Mosdel, Mozambique and visits his family during holidays at the matrimonial home located at 1 River Road, Durban. The house is registered in John’s name. John earns an annual salary of R1000 000.

 

On the 1^st day of April 2010 and at Bala Lodge in Mozambique, John married his life partner Jack Purple. The civil union was concluded on the beach by Jack’s uncle, minister Paul Pope from the All Mozambiquen Church.

 

Jack is a surfing instructor at Ushaka, Durban and earns R10 000-00 per month.

 

At the time of the marriage the parties entered into an antenuptail contract with the inclusion of the accrual system. The commencement value of John’s estate was estimated to be R100 000 whilst Jack’s estate was valued as naught.

 

On 1 April 2011John and Jack became the proud fathers of twins, Derek and Steven. Shortly after the birth of the twins John told Jack to stop working to look after the children. John undertook to support Jack and the children.

 

One night Jack met up with an old girlfriend of his, Ann Brown and they started an adulterous relationship. Ann is a director of Sasol Mozambique. On 1 April 2012 Ann gave birth to Jack’s child, Alice.

 

When John discovered that Jack was unfaithful to him he immediately cancelled Jack’s Virgin Active membership, cancelled Jack’s medical aid, changed the locks to the matrimonial home, took the keys to the car Jack was using and refused Jack access to the matrimonial home. John furthermore employed a nanny and arranged for his sister to stay with the kids during the week whilst he was in Mozambique working. John instructed his sister not to allow Jack contact rights in respect of the children. John consulted you and wish to institute a claim against Jack for a decree of divorce, maintenance in respect of the children at the rate of R1000 per month per child, a claim against Jack in terms of section 9 of the Divorce Act and a claim against Ann for loss of consortium in the amount of R1000 000.

 

Based on the aforesaid set of facts, answer the following questions and where applicable refer to authority:

 

1.1     Draft the particulars of claim based on the instructions given to you by John. Remember to cite all the Defendants. (Please do not draft the summons itself or the annexures to the summons).You may add your own facts where necessary.                                                                                      (30)

 

1.2     Considering section 28 of the Constitution of the Republic of South Africa, 1996 as well as the provisions of the Children’s Act, advise John on the criteria and formalities that must be complied with in drafting a settlement agreement as well as a parenthood agreement.                              (20)

 

1.3     Explain to John what each of the following remedies entail by addressing the criteria, the process, the relief that can be claimed and the enforcement of each remedy:-

          1.3.1   Domestic violence interdict;

          1.3.2   R 43 application;

          1.3.3   Maintenance application.                                                     (30)

 

1.4     If Jack and Ann decide to give Alice up for adoption and a British citizen wish to adopt Alice, what procedure would the British citizen have to follow in successfully adopting Alice?                                                       (20)

 

 

THE END

 

 

   

2015 Supplementary exam paper

Question 1:

 

John Grey is a mechanical engineer. He is employed by Mosdel, Mozambique and visits his family during holidays at the matrimonial home located at 1 River Road, Durban. John earns an annual salary of R1000 000.

 

On the 1^st day of April 2010 and at Bala Lodge in Mozambique, John married his life partner Jack Purple. The civil union was concluded on the beach by Jack’s uncle, minister Paul Pope from the All Mozambiquen church. Jack is a surfing instructor at Ushaka, Durban and earns R10 000-00 per month.

 

At the time of the marriage the parties did not enter into an antenuptail contract.

 

On 1 April 2011John and Jack became the proud fathers of twins, Derek and Steven. Shortly after the birth of the twins John told Jack to stop working to look after the children. John undertook to support Jack and the children.

 

One night John met up with an old girlfriend of his, Ann Brown and they started an adulterous relationship. Ann is a director of Sasol Mozambique. On 1 April 2012 Ann gave birth to John’s child, Alice.

 

When Jack discovered that John was unfaithful to him he changed the locks to the matrimonial home and refused John access to the matrimonial home. Jack consulted you and wish to institute a claim against John for a decree of divorce, primary caregiving of the minor children, maintenance in respect of the children at the rate of R10 000 per month per child, 50 % of John’s pension fund interest and rehabilitative maintenance for himself at a rate of R50 000 per month. In addition Jack wants to institute a claim against Ann for loss of consortium in the amount of R1000 000.

 

 

Based on the aforesaid set of facts, answer the following questions and where applicable refer to authority:

 

1.1     Draft the particulars of claim based on the instructions given to you by John. Remember to cite all the Defendants. (Please do not draft the summons itself or the annexures to the summons).You may add your own facts where necessary.                                                                                      (30)

 

 

1.2     In lieu of the aforesaid circumstances mention what remedies are available to John. Briefly outline the criteria applied by the court/s, the procedure/s involved in applying for the remedy/ies as well as how such remedy can be enforced.  Reference MUST be made to the relevant legislation in answering the question.                                                                           (30)

 

1.3     Considering the best interest principle as well as the child clause contained in the Constitution of the Republic of South Africa, 1996 do you believe that the twins’ (Derek and Steven) right to be heard in all matters concerning them are adequately guarded and applied in South African courts? Substantiate your answer with reference to legislation.                                              (20)

 

1.4     Adoption Britian.                                                                            (20)

 

 

THE END

 

 

2013 Supplementary exam paper

Question 1;

 

Dr. Maradeth Grey (born White) and Dr. Derek Grey were married in terms of the Civil Union Act 17 of 2006 on the 1^st day of April 2008. Derek, an English citizen, employed as a neurologist at the Oxford Hospital in England was introduced to Maradeth, an orthopaedic surgeon employed by Alberlito Hospital, Ballito during a medical conference held in England during March 2008. At the end of the conference Derek proposed to Maradeth and travelled with her to South Africa where they got married at Maradeth’s home located at Unit 1, Ocean View Street, Zimbali Lodge, Ballito. Derek has, subsequent to their marriage, been appointed as the head of neurology at Alberlito Hospital, Ballito. Both parties belong to the Alberlito pension fund as administered by Alex Forbes Insurance located at Unit 1, Forbes Building, Johannesburg.

 

Derek entered into an adulterous relationship with Dr. Mark Black, a trauma doctor employed at Alberlito Hospital. Maradeth and Derek adopted Sloan White, a male born 1 April 2009 after his mother gave him up for adoption. Shortly after the adoption, Derek admitted to Maradeth that he was gay and that he was involved with Dr. Mark Black. Maradeth was so outraged that she asked Derek to leave the matrimonial home. As Derek was no longer staying at the matrimonial home, he stopped contributing towards the communal (shared) expenses. In addition, when Dr. Mark Black heard that Maradeth was refusing Derek contact with Sloan, he started harassing Maradeth by sending her e-mails and cellular phone messages on a daily basis.    

 

Maradeth consults with you in respect of a divorce action. She is adamant that she wants her husband and Dr. Mark Black to pay for the embarrassment they have caused her. Maradeth furthermore instructs you that she wishes to apply for primary care-giving of Sloan and does not want Derek to have unsupervised contact with the minor child as she is concerned that his lifestyle (having intimate relations with another man) will have a negative effect on the minor child. In addition she wants Derek to pay maintenance in respect of Sloan in the amount of R10 000-00 per month, as well as all educational expenses. Maradeth is prepared to retain Sloan on her medical aid fund. 

 

Based on the aforesaid set of facts, answer the following questions and where applicable refer to authority:

 

1.1     Draft the particulars of claim based on the instructions given to you by Maradeth. Remember to cite all the Defendants. (Please do not draft the summons itself or the annexures to the summons).    You may add your own facts where necessary.                                                                                                                       (30)

 

1.2     On receipt of the divorce summons Derek threatens to stop all financial assistance he is presently providing Maradeth and Sloan and to sell all the household furniture to Cash Converters. Explain to Maradeth what remedies are available to her to safeguard her interest.                                                 (20)

 

1.3     Considering the aforementioned circumstances should Maradeth apply for an interdict against Mark in terms of the recently promulgated Prevention of Harassment Act 17 of 2011, and if so, under what circumstances will she be able to do so?  In addition can she claim the same relief against Derek under the same Act?                                                                                                   (20)

 

 

 

Question 2:

 

Mrs. Li, a Japanese citizen, visited South Africa during her world tour. Whilst travelling

to Jozini, she encountered a six year old boy by the name of Lucky Ndlovu. Mrs. Li

was so taken by this little boy, especially after learning that Lucky was an orphan. Lucky

was placed in the foster care of his aunt, a single mother herself, Ms. Xaba, after his

parents passed away in a horrific vehicle accident.  Mrs. Li wishes to adopt the little

boy. Lucky has been staying with his aunt for two years and wishes to remain with his

aunt and cousins. The social welfare officer does not support inter-racial adoptions.

 

2.1     Considering the ‘best interest principle’ as well as Section 28 of the Constitution of the Republic of South Africa, 1996 do you believe that Lucky’s best interest will be served by allowing the inter-racial adoption? Substantiate your answer with reference to legislation.                                                  (15)

 

2.2     Explain to Ms. Xaba the procedure involved in Mrs. Li’s proposed adoption with reference to the provisions of the Children’s Act 38 of 2005.                         (15)

 

 

 

THE END