South Africa’s appeals court finds adoption barriers unlawful — TimesLIVE
South Africa’s Supreme Court of Appeal dismissed an appeal by the minister of social development, the Gauteng provincial executive council member for social development and the head of the provincial department. The court upheld a ruling by the Johannesburg High Court, which found adoption guidelines that imposed additional requirements beyond the Children’s Act to be unconstitutional.
As TimesLIVE reports, appeals court judge Nambitha Dambuza found that Department of Social Development officials had improperly conflated procedures for protecting children from abuse or neglect with the adoption process. The department considered an investigation under a care and protection case a mandatory prerequisite for adoption, although the law did not require this.
The interests of a specific child
The court also disagreed with an approach under which biological relatives, the community or cultural affiliation automatically take priority when determining a child’s future. Dambuza noted that the law does not establish a hierarchy of factors for such decisions. Cultural and family ties may be considered, but they cannot replace an assessment of the best interests of the specific child.
The ruling does not abolish statutory safeguards for adoption: consent requirements remain in force, subject to exceptions defined by law. Prospective adoptive parents must meet legislative requirements, and an adoption must serve the child’s best interests.
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Two adoption cases
The case was considered using the examples of two children identified in the documents as B and L. In the case of child B, between 2018 and 2020 the matter was returned to the Children’s Court 15 times while officials considered placing the child with the biological grandparents to preserve cultural roots. The social worker who recommended this option had not met either the child or the prospective adoptive parents and had not examined their circumstances.
In L’s case, the mother chose adoption and obtained a court order barring disclosure of her pregnancy to her family. Despite this, the department attempted to reconsider an adoption recommendation that had already been issued, insisting that the child be removed and the process restarted.
B’s adoption was completed on May 26, 2023, and L’s on August 8, 2023. The appeals court said it found no evidence that the adoptive parents were unsuitable, and that the children had known only these families. The court also did not set aside an order to refer the conduct of the social workers involved to the South African Council for Social Service Professions.
