It is unthinkable that there are approximately 1.8 million children in need of permanent families in South Africa. Yet, in the 12 months between 1 April 2019 and 30 March 2020, only 1 123 adoptions were registered. Of these, 146 were intercountry adoptions.

Adoption provides permanent, life long legal bonds of belonging and family. The question then arises – if South Africa has so many children in need of permanent families, why are only 0.062% of them adopted every year?

Not too long ago, adoption of a child from South Africa for foreign citizens was entirely impossible. It was only in 2000 that it became possible at all1, but it has remained difficult, if not at times improbable. In scores of cases, adoption of specific children and adoption by specific (foreign) persons remained barred because of rules and regulations which make little sense and do not conform to the Constitutional imperative of “best interests of the child”. Local adoptions, involving South African children and South African prospective parents, also only hiccup along. Those who had the means resorted to litigation against our government, generally the Department of Social Development (“DSD”), and bit by bit, our courts started changing the landscape.

The litigation we recently successfully brought in the High Court of South Africa, Gauteng Local Division, on behalf of our clients, has leap-frogged these incremental developments in the field of intercountry adoptions. It challenged the status quo on a number of issues, including the principles of subsidiarity and pre-identification in light of best interests and adoptions from countries with no working agreements in place with South Africa. Our case was built on the developments that have come before it, and will no doubt stand, not only as precedent in similar cases, but will allow others to build on it in the future.

In our case, a Polish family wishing to adopt a South African child known to them had no avenue to bring an application for his adoption. These are the facts of our case. The minor child, E, was born prematurely to a mother who struggled to look after him due to mental health problems, which included addiction. At six weeks, he was removed from her care and placed in a place of safety at a Youth and Child Care Centre (“YCCC”). Unfortunately, it was just before Christmas and the YCCC was already on skeleton staff. This baby, now malnourished and neglected, needed more than most at that time. A long-time volunteer, a foreigner, but whose immediate family (our clients) were in South Africa for work and were well known to the YCCC, were this baby’s Christmas blessing as they took him into their home for the holidays. He was loved, and held, and fed, and cuddled and then loved some more. He picked up weight, calmed and settled down.

E went back to the YCCC after the new year, and was visited by, and visited at the home of, our clients. Despite this contact, he was not thriving as expected, and after an assessment, the YCCC was advised he needed a familial bond.

Our clients, having been thoroughly vetted as is done for foster parents in South Africa, happily agreed to extended visits, visits when E was sick, they took him to doctors’ appointments and hospital stays, funded his medical expenses, his school fees and other needs. They met E’s mom, stayed in contact with her, and helped her to see her son regularly. Because they were foreigners, they did not qualify as foster parents, and E could not (and did not) live with them.

E’s mother was in the care of a government mental health facility. Although she was fully supportive of our clients’ role in E’s life, she did not want E to be adopted, and was trying to look after herself so that she could take care of him again in the future. She had family – aunts and uncles, some who were able but not willing, and some who were willing but not able, to look after her son. Foster care was considered – either with her family or vetted foster parents, but neither were suitable nor did anything pan out. E’s mother wanted him to be looked after by our clients, which they did. Even after they returned to Poland when E was four years old, they travelled between Poland and South Africa numerous times a year, ensuring that they spent time with E, were there for him on his birthday and over Christmas. They consistently and unfailingly cared for, nurtured and loved him.

Adopting E was not even a possibility available to our clients, but when his mother passed away in April 2020, our clients, without hesitation, expressed their desire to care for E permanently, and put the wheels in motion to adopt him.

However, their efforts were scuppered by DSD at every turn:

Firstly, the Polish Central Authority was completely stymied by the South Africa Central Authority, which took the stance that as there was no working agreement, or any adoption agencies, between the countries, an adoption was simply not possible at all. Except – and here’s the rub – the South African Central Authority falls under DSD, and it is DSD which must put country-to-country working agreements before the President for approval, and it is DSD who authorizes and finally approves intercountry adoption agencies to enter into working agreements with specific countries.

Secondly, according to DSD, a child has to have no options at all for care in South Africa before they could be considered adoptable. In local adoptions, this is restricted to no biological family, no matter how far extended, or no placement possibilities at all within the child’s culture, religion and language group. But in intercountry adoption, it becomes strictly any other option available at all for placement. This issue is known as the subsidiarity principle.

Thirdly, because the child was known to the Polish family, it precluded them from even being considered to the extent that every adoption agency and social worker simply turned them away. This prior relationship is labelled as pre-identification or even baby shopping, both a taboo, irrespective of how the relationship came about or the nature of the relationship. An adoption application before the Children’s Court requires reports from an adoption agency or social worker. Without such reports, the Children’s Court is unable to consider whether the family would be a good option for the child.

In our application, we sought, inter alia, an order that DSD do what is necessary to allow for adoption between Poland and South Africa. According to the Children’s Act, no 38 of 2005 (“the Children’s Act”) it is DSD’s function to do so. The Hague Convention on Intercountry Adoption (to which South Africa is a party) (“the Convention”) does not require any such formal agreement, and the Children’s Act says that in any conflict between it and the Convention, the Convention holds.

Much of DSD’s opposition to the relief sought in this regard is based on its own policies and guidelines, which form the basis for considering adoption. The court has already, in the case of TT2 ruled that the national adoption guidelines were unconstitutional and set them aside.

We sought also that the barriers preventing an adoption application to be weighed by the Children’s Court be removed by seeking an order declaring that the nature of the relationship between E and our clients did not fall within pre-identification or baby shopping, and so authorizing the adoption agency and/or social workers to at least report on whether E ought to be adopted by the family. Needless to say, once an application was before the Children’s Court the issue of subsidiarity would be weighed, but we wanted clarity of the role of this principle.

The matter was argued in June 2023 and a 94-page judgment was handed down by Acting Judge Wentzel in October 2023. The Court carefully considered every argument raised by the parties, and came to the conclusion that DSD is so fixated on their own “guidelines” and political motivations, that it completely missed the one principle that is paramount in every matter concerning a minor child – the best interests of that minor child. Paragraph 168 of the judgment: “these Guidelines place great emphasis upon the subsidiarity principle and go beyond the requirements set out in the Children’s Act and in the Hague Convention. These Guidelines demonstrate that it was the DSD’s stance from the outset to strictly apply both the subsidiarity and pre-identification principles, notwithstanding the more child-centric approach taken in the Hague Convention (which was to be given the force of law in Children’s Act) and the soon to be implemented provisions contained in the Act itself. This is contrary to the stated purpose of the Intercountry Guidelines set out in the Foreword to the Guidelines signed by the Minister which record that they had been developed” (our emphasis). Wentzel, AJ was, correctly in our view, scathing of DSD, and at paragraph 201 of her judgment states: “It is readily apparent that DSD’s National and Intercountry Guidelines go way beyond what is contemplated in the [Children’s] Act and the Hague Convention (incorporated into the [Children’s] Act by section 256) regarding the need to try and place a child locally before an intercountry adoption is considered. Moreover, whatever the DSD’s policies and Guidelines may say, they cannot override the provisions of the Act and will always be trumped by the best interests of the child.” The Wentzel judgment has put the wheels in motion for the Children’s Court to, in due course, be able to consider whether it is in E’s best interests to be adopted by our clients, and DSD is attending to the Polish / South African Central Authority relationship to enable intercountry adoptions, with the necessary precautions being put in place for the protection of adopted children leaving the jurisdiction of our Courts. Our clients are hoping that E, now 7 years old, does not need to celebrate his 8th birthday in the YCCC. To read the full judgment click here: http://www.saflii.org.za/za/cases/ZAGPJHC/2023/1221.html