What is the Law on Adoption?

If there’s one thing we can all agree on, it’s that children deserve every chance for joy and happiness in life that we can give them. They deserve to live in a safe and secure environment, they deserve to have a roof over their heads, and, most of all, they deserve to have a family that loves and protects them.  Sadly though, these things aren’t always available, and many children have to go through the most delicate parts of their lives without parents who can care for them. Perhaps that is why adoption is seen as one of the most wonderful and fulfilling things a person can do with their lives. It enables adults to give those sidelined children a stable home and real hope for the future.  Maybe you’re wondering if adoption is the right move for you, or perhaps you’re just curious as to how it all works. Either way, we would do well to ask ourselves a few questions, like – Who can adopt a child in South Africa? What kind of requirements need to be fulfilled? And how long does the process take? What is the Law on Adoption?

Adoption law in South Africa is primarily governed by Chapter 15 of the Children’s Act 38 of 2005. This act gives vital legal information and guidance on the topic with regards to things like when a child may be adopted, who may adopt a child, how parental consent works, the requirements for adoptive parents, etc. 

Of course, even when these requirements have all been met, there will still be numerous interviews and screening procedures which will need to be completed by adoption agencies and social workers before the adoption can be finalised. 

What is the Law on Adoption?
What is the Law on Adoption?

Overall, the adoption process is a long and arduous task which should not be undertaken lightly. 

Who Can Adopt a Child in South Africa?

Children can be adopted either jointly by – 

  • A husband and wife.
  • Partners in a permanent domestic life partnership.
  • Others share a common household and form a permanent family unit.

Or by – 

  • A widower/widow.
  • A divorced person.
  • An unmarried person.
  • A married person whose spouse is the child’s parent.
  • The biological father of a child born out of wedlock.
  • A foster parent of the child.

Any individual wishing to adopt a child must also be over the age of 18.

What are the Requirements to Adopt a Child in South Africa?

There are two main sets of criteria that need to be fulfilled before a child is adopted in South Africa. The first set relates to the adoptive parents, while the second relates to the child themself. 

Additionally, the biological parents of the child must be asked for their consent. 

Firstly, let’s look at the requirements that the child must meet before they can be adopted. A child may only be adopted when – 

Requirements for Adoptive Children

  • They are an orphan and have no guardian or caregiver who is willing to adopt them
  • The whereabouts of the parents/guardian cannot be established
  • They have been abandoned (No contact with parents or guardians for at least 3 months)
  • The parents/guardians have abused/deliberately neglected the child or allowed the child to be abused/deliberately neglected
  • They need a permanent home

By contrast, an adult wishing to adopt a child will need to fulfil their own set of requirements.

Requirements for Adoptive Parents

  • Aside from falling into one of the aforementioned groups, adults all also need to – 
  • Be considered fit and proper to be entrusted with full parental rights and responsibilities
  • Willing and able to undertake, exercise and maintain those rights and responsibilities
  • Be over the age of 18
  • Be properly assessed by an adoption social worker 

It may also be worthwhile to note that no person may be excluded from adopting a child based on their financial status.

What is the Law on Adoption?
What is the Law on Adoption?

How Long Does it Take to Adopt a Child in South Africa?

The length of the adoption process will depend on many different factors and can thus take anywhere between 6 to 18 months to complete, on average. That said, the pickier a prospective parent is, the longer the process can take. 

Parents who are willing to adopt nearly any child will probably complete the procedure much faster than a parent who wants a child of a particular race, gender, etc. 

What Can Stop You from Adopting a Child?

Although there are many ancillary factors which may obstruct your adoption efforts, there are 2 issues which are more common than the rest, they are –

  • Consent  
  • The Screening Process 

Consent – Before you can adopt a child you must receive consent from the biological parents (or from the guardians in cases where there are no parents), and from the child themselves if they are over the age of 10 or deemed to have the maturity and understanding necessary to consent to the adoption. This consent must be signed, presented in writing, and verified by the Children’s court.

Additionally, the consent may be withdrawn up to 60 days after it has been given. There are, however, certain instances in which consent from biological parents/guardians may not be required, these include, but are not limited to,  –

  • When the parents or guardians are viewed as unable to give consent due to a mental illness. 
  • When they have abused/deliberately neglected the child, or when they have allowed the child to be abused/deliberately neglected.
  • When the court has divested them of their right to consent to the adoption.
  • When they have failed to respond to the notice of the proposed adoption within 30 days of receiving it.
  • When the child has been abandoned and the parents/guardians cannot be found. 

Once consent is given, adoptive parents will still need to undergo the interviews and screening procedures before the process can be finalised. 

Screening Process – Hopeful parents will have to undergo various screening procedures with the adoption agency, social workers, etc. These procedures will include everything from background checks to psychological evaluations and general capacity assessments. Parents will also need to receive police clearance certificates and will be checked against the Sexual Offences Register.

This information will then be forwarded to the Children’s Court for review and approval. The court will take all of these factors into account while prioritising the best interests of the child before they reach any kind of decision. 

What is the Oldest Child you can Adopt?

The Children’s Act defines a ‘child’ as a person who is under the age of 18, so, generally speaking, adoption would apply to individuals below that age.

What is the Law on Adoption?

In Conclusion – What is the Law on Adoption in South Africa and What is Required?

Adoption in South Africa is covered extensively by the Children’s Act of 2005. This act identifies important information ranging from the types of people that may adopt a child to the way in which consent from parents and/or guardians will affect the process. 

People looking to adopt a child must be over the age of 18 themselves and must be one of the following – 

  • A husband and wife
  • Partners in a permanent domestic life partnership
  • Others share a common household and form a permanent family unit
  • A widower/widow
  • A divorced person 
  • An unmarried person
  • A married person whose spouse is the child’s parent
  • The biological father of a child born out of wedlock
  • A foster parent of the child

Additionally, these individuals must be assessed by a social worker and must be found to be fit and proper to hold parental rights and responsibilities as well as willing and able to undertake, exercise and maintain these rights and responsibilities. 

Children themselves must fulfil certain criteria before they can be eligible for adoption. Specifically, they must fit into one of the following categories – 

  • Be an orphan with no caregiver or guardian willing to adopt them. 
  • Their parent’s/guardian’s whereabouts cannot be established. 
  • They have been abandoned.
  • Their parents/guardians have abused/deliberately neglected them or have allowed them to be abused/deliberately neglected.
  • They are in need of a permanent home. 

Generally speaking, the consent of the child’s biological parents/guardians is also required before an adoption can take place, however, this consent may not be necessary for certain situations, such as when the parents/guardians are considered to be mentally unable to provide it, abusive, etc. 

Adoptive parents will need to undergo stringent checks and evaluations by social workers and adoption agencies before they can be approved for adoption. The full adoption procedure alongside the matching process can take many months to complete, however, if the prospective parents are picky with regard to certain traits of the child such as their race or gender, the process can end up taking much longer. 

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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