C&A Friedlander Attorneys

A2_BSection 229 of the Children’s Act states that the purpose of the adoption procedure is to protect and nurture children in a safe, healthy environment with positive support, and to promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime.

When can a child be adopted?

In terms of Section 229 of the Children’s Act, any child can be adopted if:

  1. it is in the best interest of the child;
  2. the child is adoptable; and
  3. the requirements of Chapter 15 of the Act, which deals with adoption of children, are complied with.

A social worker determines whether a child is adoptable by establishing whether the child meets the requirements set out in Section 230(3) of the Children`s Act.

A child is adoptable when:

  1. the child is an orphan who has no guardian who is willing to adopt the child;
  2. the location or whereabouts of the natural parent or guardian of the child cannot be determined;
  3. the child is left behind (abandoned);
  4. the child’s natural parent or guardian abused or deliberately neglected the child, or allowed the child to be abused or willfully neglected;
  5. the child needs an alternative permanent displacement.

Who may adopt a child?

Section 231 of the Children’s Act states that a child may be adopted by:

  1. a husband and wife jointly;
  2. partners in a permanent domestic life partnership (cohabitation relationship), jointly;
  3. persons who share a common residence and form a permanent family unit, together;
  4. a widow, widower, divorced or unmarried person;
  5. a married person whose spouse is the parent of the child or a person whose permanent cohabiting partner is the parent of the child;
  6. the biological father of an illegitimate child;
  7. a foster parent of the child.

These individuals must meet the following requirements as set out in Section 231(2) in terms of which the adoptive parent must be:

  1. fit and proper to be entrusted with full parental responsibilities and rights in respect of the child;
  2. willing and able to undertake, exercise and maintain the parental responsibilities and rights of the child;
  3. over the age of 18 years;
  4. properly assessed by an adoption social worker for compliance with paragraphs 1 and 2.

It is important to note that a person shall not be disqualified to adopt a child because of his/her financial ability.
What is the effect of an adoption order? 

Unless there is a pre-adoption agreement that is accepted and confirmed by the Court, an adoption will terminate or make the following void:

  1. Parental responsibilities and rights of any person, including a parent, step-parent or cohabitation partner, that he/she had before the adoption.
  2. All claims of contact with the child by any family member or person mentioned above;
  3. All rights and responsibilities that the child had with respect to the above mentioned persons and any previous placement order regarding the child [Section 242(1) of the Children’s Act].

The adoption order transfers full parental responsibilities and rights on behalf of the child to the adoptive parents.

  1. The child assumes the surname of the adoptive parents unless otherwise stated in the Court order.
  2. The adoptive parents are not permitted to allow any marriage or sexual intercourse between the child and any other person who would also have been prohibited from doing so before the adoption.
  3. Finally, the adoption order determines that any property rights the child may have shall not be affected by the adoption [Section 242 (1) of the Children’s Act].

An adopted child must be regarded as the “child” of the adoptive parents and the adoptive parents as the “parents” of the adopted child.

See Children’s Act No 38 of 2005

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.