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[2007] ZASCA 87
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DG and Another v W and Others (379/06) [2007] ZASCA 87; 2007 (5) SA 184 (SCA) (1 June 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 379/06
In the matter between:
AD
...............................
First Appellant
DD
...............................
Second Appellant
and
DW
...............................
First Respondent
CW
...............................
Second Respondent
ROODEPOORT CHILD AND FAMILY
WELFARE SOCIETY
...............................
Third Respondent
CENTRE FOR CHILD LAW Amicus Curiae
CORAM: HEHER, PONNAN JJA AND HANCKE, SNYDERS AND THERON AJJA
DATE OF
HEARING: 9 MAY 2007
DATE OF
DELIVERY: 1 JUNE 2007
Summary
:
Family Law – Child – Inter-country adoption –
Application for sole custody and guardianship – Best interests
of the minor child to be removed from the country in terms of an
adoption effected in the children’s court pursuant to the
provisions of the Child Care Act 74 of 1983. Principle of
subsidiarity not satisfied.
Neutral citation:
This case may be cited as AD
v DW
[2007] SCA
87 (RSA).
JUDGMENT
THERON AJA/
Introduction
[1] Mr and Mrs DG (the appellants) instituted
proceedings in the Johannesburg High Court for an order that sole
custody and guardianship
of the minor child, RJW (R), be awarded to
them. The appellants also sought ancillary relief to the effect that
R be declared to
have been abandoned, that the order by the
children’s court placing her in the foster care of Mr and Mrs W
(the first and second
respondents) be discharged and that the
appellants be authorised to leave South Africa with R with a view to
adopting her in the
United States of America. The High Court
(Goldblatt J) dismissed the application. It is against this order
that the appellants appeal,
with the leave of the High Court.
Factual background
[2] R was found abandoned a few days after her birth,
head-first in a bucket, under a tree in a veld in the Roodepoort area
on 14
November 2004. She was taken to the premises of the Roodepoort
Child and Family Welfare Society (the third respondent) and on 16
November 2004 the third respondent applied for and was granted an
order by the Commissioner of Child Welfare (‘the Commissioner’)
for R to be placed in the care of the first and second respondents.
The first and second respondents, American citizens, now resident
in
South Africa, have established and administer ‘Baby Haven’,
a home for abandoned babies, in Gauteng. R has been in
their care
since 17 November 2004, and in terms of an order by the Commissioner
granted on 11 January 2005, they were appointed her
foster parents.
To date, neither R’s parents nor family have been traced.
[3] During 2005, the appellants, also American citizens,
visited the first and second respondents, with whom they shared a
long-standing
friendship, in South Africa. It was then that the
appellants met R. They became extremely fond of her and took steps
towards adopting
her. To that end, they thereafter met with Ms
Deborah Wybrow, their South African attorney, and Ms Karen Law, their
American attorney,
to discuss their desire to adopt R. The
appellants’ suitability as adoptive parents is not in dispute.
It is apparent from
the evidence that they are fit and proper persons
to adopt and that they are possessed of sufficient means to
adequately maintain
and educate R. As stated by Goldblatt J they are
‘caring and decent persons who for purely altruistic purposes’
wish
to adopt R.
Issue
[4] It is trite that the high court, as upper guardian
of all minors, has inherent jurisdiction to grant a custody and
guardianship
order in respect of a minor child. It is common cause
that the children’s court has sole jurisdiction to grant an
adoption
order. The grant of the order sought by the appellants would
result in the sanction, by this court, of an alternative route of an
inter-country adoption, under the guise of a custody and guardianship
application. In my view, the issue is whether it is in R’s
best
interests to grant the order sought or to require that an application
for her adoption be made in the children’s court.
Proceedings in the High Court
[5] All three respondents supported the appellants’
application. Goldblatt J was concerned about the unusual order sought
and
appointed an
amicus curiae
to
assist the court on, inter alia, South Africa’s obligations in
terms of the Hague Convention on the Protection of Children
and
Co-operation in Respect of Inter-country Adoption 1993 (‘the
Hague Convention’) and developments in South Africa
regarding
inter-country adoption since the Constitutional Court decision in
Minister of Welfare and Population Development
v Fitzpatrick
.
1
[6] The
amicus curiae
considered it necessary to obtain affidavits from
persons familiar with the policy and practice of inter-country
adoption and in response
filed heads of argument together with
affidavits deposed to by Ms Pamela Wilson, a registered social worker
in the employ of the
Johannesburg Child Welfare Society and Dr Maria
Mabetoa, the Chief Director: Children, Youth and Family in the
National Department
of Social Welfare (‘the Department’).
Wilson states that she has been part of the adoption team at
Johannesburg Child
Welfare for the past 23 years and has been
involved in inter-country adoption since 2001. According to Wilson,
the adoption team
has, since June 2001, placed 98 children in
inter-country adoptions, three of which were to the United States of
America. They have
finalised adoptions, in the children’s
court, to Hague Convention countries as well as countries which are
not signatories
to the Convention.
[7] Dr Mabetoa explained that one of the principles
underpinning the Department’s inter-country adoption policy is
that a child
should be adopted within South Africa and inter-country
adoption should only be considered as an alternative when a
satisfactory
solution cannot be found within South Africa. Dr Mabetoa
gave the following overview of the current inter-country adoption
policy:
‘A profile on every child that
cannot be placed locally, including the efforts undertaken to place
the child, must be submitted
to the Department …. Only after
the Department has agreed in writing, [can an] inter-country adoption
… be considered.
The Department … reports relevant
cases to the national missing person register of the South African
Police Service to ensure
that a child considered for an inter-country
adoption is not a missing child. The inter-country adoptions are done
via the Children’s
Court and according to provisions prescribed
in Chapter 4 of the current Act. The rules as prescribed in the
[Hague] Convention are
followed as [the] Central Authorities in
[both] the countries agree to the adoption.’
[8] The judge
a quo
found that it was not for the high court to decide what
is in R’s best interests – that should be done by the
children’s
court in accordance with the provisions of the Child
Care Act 74 of 1983 (‘the Child Care Act’). He stated
that the high
court should not be placed in the position of having to
fulfill the functions of a Commissioner who is better trained and
more experienced
in these matters than high court judges. The learned
judge considered that he was bound by the
dicta
in
Fitzpatrick
that
the children’s courts ‘are the sole authority empowered
to grant orders of adoption’. Central to the court’s
finding, is the following passage by Goldstone J in
Fitzpatrick
:
‘[In terms of the Act] the
children’s courts … are charged with overseeing the
well-being of children, examining
the qualifications of applicants
for adoption and granting adoption orders. The provisions of the Act
creating children’s courts
and establishing overall guidelines
advancing the welfare of the child offer a coherent policy of child
and family welfare. If appropriately
and conscientiously applied by
children’s courts the main provisions of the Act would meet the
most serious of the concerns
of the Minister and the
amicus
curiae
.
[The Minister and the
amicus
curiae
were concerned that if inter-country
adoption was to be allowed with immediate effect, three specific
problems could result: (a) the
inability of the Department to
facilitate thorough background investigations of non-citizens; (b)
insufficient legislative protection
against child trafficking; and
(c) inadequate provision to give effect to the principle of
subsidiarity.]
The provisions of section 24 of the Act are
designed to deter the practice of child trafficking, making the
exchange of consideration
in an adoption a criminal offence. Until
the safeguards and standards envisaged by the Minister are
introduced, children’s
courts are able to prevent the feared
abuses in the cases of citizens and non-citizens alike.’
2
Adoption in South Africa
[9] The Act which governs adoption in South Africa is
the Child Care Act. The Act establishes children’s courts,
presided over
by Commissioners (magistrates and assistant
magistrates), which are empowered to deal with adoptions. In terms of
this legislation,
adoption falls under the exclusive jurisdiction of
the children’s court.
3
Section 18(1)(b) provides that no adoption order may be
made before the consideration of a prescribed report from a social
worker.
In considering an adoption application the children’s
court must take into account the religious and cultural background of
the child as well as that of the prospective parents.
4
In terms of section 18(4) a children’s court may
not
grant an adoption
order unless it is satisfied that: (a) the applicant(s) are qualified
to adopt in terms of s 17 and possess adequate
means to maintain and
educate the child; (b) the applicant(s) are of good repute and fit
and proper persons to be entrusted with
the custody of the child; (c)
the adoption will serve the interests and be conducive to the welfare
of the child; (d) the necessary
consent to the adoption, where
applicable, has been given or if the child is in foster care, the
foster parent has indicated in writing
that he or she does not wish
to adopt the child.
[10] It was only after the decision in
Fitzpatrick
that it became necessary to provide a legal
framework, consistent with international law, to adequately regulate
inter-country adoption.
This has led to the promulgation of the
Children’s Act 38 of 2005 (‘the Children’s Act’).
It is anticipated
that this Act will come into operation during 2008.
Although the Children’s Act is not yet in operation, it is
relevant as
a statement of government’s policy approach to
inter-country adoption. When the Children’s Act comes into
operation,
the Guardianship Act 192 of 1993 will be repealed and
applications for guardianship will be governed by s 24 of the
Children’s
Act which provides that such applications may be
made to the high court. However, s 25 limits the application of s 24
to South African
citizens and provides that a guardianship
application by non-South African citizens must be regarded as an
inter-country adoption.
Section 261 regulates the position regarding
inter-country adoption. In terms of this section a foreigner resident
in a Hague Convention
country who wishes to adopt a South African
child must first apply to the central authority of that country,
which authority is tasked
with submitting a report to the South
African central authority. The Act appoints the
Director-General
of the Department as the central authority
5
and no inter-country adoption may
take place without the Director-General’s approval. The
Director-General is obliged to maintain
a register for the purposes
of keeping a record of adoptable children and of fit and proper
adoptive parents.
6
If the central authorities of both
countries agree, then the
application is
processed by the children’s court. In terms of s 273 no person
may process or facilitate an inter-country adoption
otherwise than in
terms of the Children’s Act.
International Legal Framework for Inter-country
Adoption
[11] South Africa acceded to the Hague Convention on 21
August 2003. One of the objectives of the Hague Convention is to
establish
safeguards to ensure that inter-country adoption takes
place in the best interests of the child and with respect for the
child’s
fundamental rights as recognised in international law.
7
However, in terms of s 231 of the Constitution, an
international treaty shall not have effect until enacted into
domestic legislation.
The Children’s Act provides for the
enactment of the Hague Convention and will bring the latter into
operation when the Act
itself becomes operational. Despite the fact
that the Hague Convention has not yet been enacted into domestic
legislation, its provisions
cannot be disregarded. The fundamental
principles which underlie the Hague Convention are drawn from the
United Nations Convention
on the Rights of the Child (‘the
UNCRC’), particularly Article 21, which South Africa has
ratified.
[12] South Africa ratified the UNCRC in 1995 and the
African Charter on the Rights and Welfare of the Child (‘the
African Charter’)
in 2000. Article 21 of the UNCRC provides
important protections for children.
8
In accordance with the principle of subsidiarity,
Article 21 provides that inter-country adoption may be considered as
an alternative
means of child-care, if the child cannot suitably be
cared for in terms of domestic measures. Subsidiarity requires that
priority
be given to placing the child with his or her family of
origin and that domestic measures be given preference over
inter-country
adoption.
9
Despite the fact that the principle of subsidiarity has
not been expressly provided for in domestic legislation, our courts
are obliged,
in terms of s 39(1)(b) of the Constitution to take this
into account when assessing the best interests of the child, as it is
a well
established principle of international law.
10
The principle of subsidiarity is also enshrined in
Article 24(b) of the African Charter, but in somewhat stronger terms;
inter-country
adoption should only be considered as ‘the last
resort’.
11
Adoption
vis-a-vis
Custody and Guardianship
12
[13] Counsel for the appellants contended that the same
legal consequences flow from a custody and guardianship order as an
adoption.
For the reasons that follow, I do not agree with that
contention. An order of adoption is permanent and the status of the
child in
relation to his or her adoptive parents is clear. An adopted
child is deemed in law to be the legitimate child of the adoptive
parents.
13
If a child is taken out of the country on the basis of a
custody and guardianship order there is a risk that the adoption
order in
the receiving country may not be granted. There arises a
mutual claim for support between the child and the adoptive parents,
which
also extends to adoptive relations such as grandparents and
siblings. Adoption terminates all rights and obligations existing
between
the child and the pre-adoptive parents and their relatives. A
child who has been placed in the custody and under the guardianship
of ‘parents’ will not inherit unless specifically named
in their will. On the other hand, adoption creates rights of
intestate succession between the child and the adoptive parents,
which rights extend to the adoptive relatives.
14
The child’s biological parents can withdraw
consent to the adoption and apply for rescission within the time
frames set by the
Child Care Act. The biological parents of the child
are completely excluded from the adoption process if that process
happens in
another country. It is acknowledged that there is no
apparent prejudice on this score as R has been abandoned. It is
however not
inconceivable that R’s biological parents may, in
the future, make enquiries as to her whereabouts. But the best
interests
standard applied by the high court is not without
limitation. Although, in this matter, the best interests of R are of
paramount
importance, this court is enjoined, in terms of s 28(2) of
the Constitution, which creates a right for all the country’s
children,
to consider the rights of children generally and the effect
which an order of this court may have on other children.
15
When an adoption is concluded in South Africa, it must
by law be registered with the registrar of adoptions, which allows,
inter alia,
for the child to trace the details surrounding his or her
adoption at a later stage.
[14] An important feature of the case is this. According
to the immigration information furnished by the appellants’
American
attorney, R’s status in America will be more secure if
she was to be adopted by the appellants as opposed to being taken out
of South Africa in terms of a custody and guardianship order. Law
states that if the appellants were to be granted an adoption order
by
a South African court, R would, upon entry into the United States of
America, automatically be granted American citizenship. In
the event
that R enters the Unites States under a custody and guardianship
order, she will receive lawful permanent residence status
which is
not a secure status. Law explains:
‘The lawful permanent resident must
renew their status periodically. If the lawful permanent resident
violates U.S. law, for
example, by not renewing his or her status, he
or she can be deported. Accordingly, if the status of R is not
renewed, she could
be deported, and at the renewal stage, the
authorities would enquire into the adoption and progress being made
to regulate her stay
in the United States of America. For this
reason, it is critical for lawful permanent residents to secure
citizenship as soon as
possible.’
16
The following evidence of the appellants’ local
attorney, confirms R’s precarious status under a custody and
guardianship
order:
‘I have also, since the inception
of this particular matter, been advised by the United States
Consulate that it may have difficulty
with an order of sole
guardianship and sole custody, notwithstanding that similarly worded
orders have been the basis upon which
visas have been granted in all
of our previous applications.’
Wybrow goes on to request that the court, in the
exercise of its jurisdiction as upper guardian, ‘grant an
adoption’ of
R in favour of the appellants. This is, in my
view, an acceptance that R will enjoy safeguards under an adoption
order, which are
not available to her in terms of a custody and
guardianship order.
[15] The problem with granting a custody and
guardianship order with a view to concluding an adoption in a foreign
country is that
such an approach circumvents local adoption law and
falls short of the standards and safeguards provided by such law.
This is contrary
to the principles of the UNCRC and the African
Charter which requires that the child concerned enjoys standards and
safeguards equivalent
to those existing in the case of national
adoption.
17
These standards and safeguards should apply both to
procedures before an adoption order is made and to the status of the
child following
the grant of such an order.
18
South Africans wishing to adopt a child would be
required to make application to the children’s court. There is
no good reason
why an alternate route, via the high court, should be
available to foreigners, particularly when there are policies and
procedures
in place, in the children’s court, to deal with
inter-country adoption.
Best interests of the child
[16] It was submitted, on behalf of the appellants, that
the high court, as upper guardian of all minors, has inherent
jurisdiction
to grant an order for custody and guardianship upon a
consideration of the best interests of a minor child and it is in
fact ideally
suited to consider the permanent placement of minor
children.
19
It was further contended that the inherent jurisdiction
of the high court allows for flexibility in the determination of the
best
interests of the child, in accordance with the provisions of s
28(1)(b) of the Constitution,
20
whereas the children’s court, as a creature of
statute, is bound by the statutory limitations imposed upon it. In
this regard
reliance was placed on the statement by Goldstone J in
Fitzpatrick
that ‘it
is necessary that the [best interests] standard should be flexible as
individual circumstances will determine which
factors secure the best
interests of a particular child’.
21
Counsel for the appellants also argued that if this
court were to refuse the application it would be placing the
interests of the
child secondary to departmental policies and
procedures.
[17] This reasoning is flawed and I am unable to agree
with it. Both the
amicus curiae
and
the Department cautioned against the grant of the order sought on the
basis that it would sanction an inter-country adoption,
without the
necessary safeguards and protections intended for the benefit of the
child, in accordance with domestic and international
law. The
fundamental principle which underlies the relevant international
treaties is the best interests of the child. Article 3
(1) of the
UNCRC gives content to the best interests requirement as follows:
‘In all actions concerning
children, whether undertaken by public or private social welfare
institutions, courts of law, administrative
authorities or
legislative bodies, the best interests of the child shall be a
primary consideration.’
22
Furthermore, Article 21 of the UNCRC requires States to
ensure that the best interests of the child is the paramount
consideration
in adoption.
23
Similarly, the best interests standard is foundational
to the objects of the Hague Convention.
24
These international instruments seek to protect the best
interests of the child by ensuring, inter alia, that inter-country
adoptions
take place in the best interests of the child, that they
are conducted in a responsible and protective manner with the aim of
eliminating
the various abuses which have been associated with
inter-country adoptions. I am of the view that it is in the best
interests of
children generally that inter-country adoptions be
effected in accordance with the principles of these international
instruments.
[18] The appellants sought, in reply, to make out a case
that they had approached the high court for relief on the basis that
they
were precluded from approaching the children’s court by
reason of the Department’s policy not to countenance
inter-country
adoptions to the United States. In support thereof, the
appellants rely on a statement made by an official from the
Department, Ms
Rose Msini, that:
‘[The Department’s] concern lies with the need of our
children to be placed inside the country as far as possible before
considering inter-country adoptions, and to ensure that all avenues
to recruit adoptive parents locally are explored. Since we do
not
have any working agreement with the United States of America,
we
do not think it will be possible to look at the possibility of
inter-country adoption
.’(Emphasis added.)
The appellants also rely on the statement made to their
attorney by Ms Raath, a Commissioner attached to the Johannesburg
children's
court, on 24 January 2006 (which date is after the launch
of this application) that ‘a policy decision had been taken not
to
allow inter-country adoptions to the United States of America’.
As I have already mentioned that is a new case sought to be
made out
in reply.
[19] The first appellant, in her founding affidavit,
states that they approached the high court because they were advised
by their
legal representatives that pending the finalisation of the
Children’s Act and the consequent enactment of the Hague
Convention,
there were no:
‘regulations in place to govern
intercountry adoptions. I have therefore been advised by my attorneys
that, pending the finalization
of the abovementioned legislation and
the formal enactment of the Hague Convention, permanent placements
are best dealt with by the
High Court in its capacity as upper
guardian of all minor children. We have been advised that, as upper
guardian of all minors, the
High Court has, with due regard to the
best interests of the minor child, inherent jurisdiction to grant an
application for full
custody and full guardianship. We have
furthermore been advised, in light of the circumstances of this
matter, that the appropriate
forum would be the High Court, hence
this application to the High Court.’
In light of the evidence of Wilson and Dr Mabetoa
setting out the current inter-country adoption policy, it is clear
that the appellants
were incorrectly advised that there were no
‘regulations’ in place to govern such adoptions. It is
apparent from this
passage that the appellants, on advice, took a
conscious decision to approach the high court on the basis of the
inherent jurisdiction
of that court. It is implied from the passage
that the appellants were of the view that the high court was better
suited than the
children’s court, to properly deal with this
matter. This sits ill with their later assertions that having regard
to the attitude
of the Department, they believed that they could not
approach the children’s court.
[20] I am not persuaded, on the evidence, that the
Department has adopted a policy not to approve inter-country
adoptions to the United
States. According to Wilson, she has, since
2001, been personally involved in three inter-country adoptions
involving American applicants.
Dr Mabetoa also confirms that
inter-country adoptions to non-contracting states can take place
provided they occur within the appropriate
framework and with the
necessary safeguards. In any event, even if it is accepted, for
purposes of this argument, that the Department’s
policy was not
to allow inter-country adoption to the United States, that does not,
in my view, justify the appellants approaching
the high court for
relief and in the process circumventing the adoption procedure
provided for in the Child Care Act. The appellants’
first port
of call should have been the children’s court, and if
necessary, they could, thereafter, have taken the matter on
review or
appeal to the high court.
[21] Wybrow stated in her affidavit:
‘
The position of
the Applicants is that the question of legal costs has become a
matter of great concern to them and it
may
prove impossible to secure representation for any
future appearances
.’
(My emphasis.)
By no stretch of the imagination can
that be construed as suggesting that the appellants’ financial
resources were at an end.
Wybrow has continued to act for the
appellants and senior counsel appeared on their behalf in this court.
It would appear that since
the deposition of Wybrow’s affidavit
on 27 February 2006, the appellants have secured funding for ‘future
appearances’.
Even if their financial resources have since been
depleted, that would be an entirely irrelevant consideration in the
determination
of the appeal. Litigation in the high court is
undoubtedly expensive. Appeals to this court, more so. The absence of
financial resources
can hardly tip the scales in favour of a
particular litigant. In any event, an adoption application in the
children’s court
is inexpensive and can be instituted without
the use of legal practitioners and private adoption agencies. In
fact, the adoption
mechanism in the children’s court is aimed
at cost-effectiveness and minimising the role of legal practitioners
and private
adoption agencies.
Principle of Subsidiarity
[22] To ensure compliance with the principle of
subsidiarity as expressed in Article 21 of the UNCRC it must be
established that the
child cannot be cared for through foster care or
adoption or other suitable care in his or her country of origin.
25
The appellants allege that during the time R has been in
the care of the first and second respondents, no other potential
parents
had expressed an interest in having R placed with them. It is
also alleged that the third respondent has been unable to secure any
prospective parents for R. In support of this allegation the
appellants rely on the statement in Hanekom’s report that:
‘On 23
rd
of August 2005,
the social worker [in the employ of the third respondent who was
responsible for supervising the care of R by the
first and second
respondents] informed me that
the baby will possibly go overseas,
and she agreed to it if it is in the child’s best interest.
’
(Emphasis added.)
That hearsay statement by Hanekom contemplates as early
as August 2005 when R was but nine months old, the possibility of her
adoption
by foreigners. Moreover, it represents the high water mark
of the appellants’ case insofar as satisfaction of the
principle
of subsidiarity is concerned. That, on any reckoning, falls
far short of what would ordinarily be required of a prospective
adoptive
parent in a matter of this kind. And for this reason alone,
if nothing else, the appellants had to fail. R’s voice has not
been heard in this application. The third respondent, who ought to
have represented R’s best interests, has failed to do so.
It
must be borne in mind that the
amicus curiae
was appointed to assist the court below on, inter alia,
developments in South Africa regarding inter-country adoption, and
not to
represent R.
[23] It was common cause that the responsibility to have
investigated whether there was suitable care available for R in South
Africa
rested with the third respondent. The third respondent has not
indicated what steps, if any, it took to secure suitable local care
for R. It would appear that the third respondent had aligned itself
with the appellants and had failed to approach the matter on
the
basis that adoption should be child-suited and not parent-suited.
This is precisely one of the practical objectives of the Hague
Convention – to ensure that the inter-country adoption process
becomes ‘less that of finding a suitable child for a [family]
and more that of finding a suitable family for a child’.
26
This case is a classic illustration of the need and
importance for an ‘independent’ social worker as
envisaged by the
Department in its current inter-country adoption
framework; a social worker who does not deal directly with the
prospective adoptive
parents.
[24] Counsel for the appellants contended that there was
nothing more that the appellants could have done in order to satisfy
the
court that no suitable care was available locally for R. I am not
persuaded that that is so. It is trite that it is the appellants,
as
the parties seeking relief, who must satisfy the court that they are
entitled to the relief sought. The Constitutional Court in
Fitzpatrick
cautioned
that, until the new child care legislation is in operation and
infrastructure and international agreements are put in place,
prospective adoptive applicants:
‘will have a greater burden in
meeting the requirements of the [Child Care] Act than they will have
thereafter.
They will have to rely on their own efforts and
resources in placing all relevant information before the children’s
court
.’
27
(Emphasis added.)
In my view the appellants have not discharged the
‘burden’ resting on them. The evidence of Hanekom, based
on the hearsay
evidence of a social worker clearly weighted in favour
of the appellants who had omitted to properly investigate the
possibility
of suitable local care, is, in my view, insufficient to
establish that the principle of subsidiarity has been complied with
as to
justify the removal of R to the United States. The children’s
court, in considering an application for adoption, is obliged
to
refuse such application where all the relevant information has not
been placed before the court.
28
It is thus, in
my
view, simply wrong to approach the matter on the basis of a
prima
facie
case. To talk
of a rebuttal of a
prima
facie
case, is,
with respect, to ignore the provisions of s 18(4) of the Child Care
Act.
29
[25] There is evidence from Wilson as to the
availability of prospective local adoptive parents, including black
South Africans, eager
to adopt female children from birth to five
years of age.
It has been
suggested that the Department has admitted that there are no
procedures to identify prospective adoptive parents. There
is no
evidence to support such a suggestion.
It
would appear that there is a flaw in the present system of matching
children available for adoption with prospective parents. Prospective
parents who are waiting to adopt a child can be ‘bypassed’
by a system that allows some prospective parents to approach
the high
court and in this way ‘jump the queue’.
The
bond that has been established between the appellants and R should
not come into the reckoning at all. That is precisely the kind
of
practice that the Hague Convention eschews. The development of a bond
with a child by prospective adoptive parents, without following
the
appropriate channels and getting onto the appropriate waiting lists
results in the kind of queue-jumping witnessed here.
The
Children’s Act will address this problem as it will establish a
central register both of children available for adoption
and
prospective parents. There is not a shred of evidence that anyone
made enquiries about the availability of prospective adoptive
parents
for R. As I have already indicated, the third respondent, whose
function it was to do, aligned themselves with this application
from
the outset.
Application to lead further evidence
[26] The evidence sought to be introduced is to the
effect that R has remained in the care of the first and second
respondents since
the application was heard by the High Court and
that no person has shown an interest in adopting or fostering her. In
my judgment,
that evidence does not take the matter any further. The
appellants launched this application on 14 October 2005. The High
Court handed
down judgment on 21 April 2006 and shortly thereafter,
on 12 May 2006, the appellants applied for leave to appeal to this
court,
which leave was granted on 14 June 2006. In these
circumstances it would have been foolhardy to attempt to secure other
prospective
adoptive parents for R while the matter was
sub
judice
. The matter has in fact been
sub
judice
for almost two years.
Conclusion
[27] It may indeed be in R’s best interests to be
adopted by the appellants. But the process the appellants have chosen
is fraught
with difficulties. In my view it is not in R’s best
interests that she be removed from the country in terms of a custody
and
guardianship order, without the protection and safeguards of an
adoption first effected in the children’s court. This court,
as
well as the high court, should not sanction an adoption procedure
which is in conflict with international treaties which South
Africa
has ratified and which are designed to safeguard the best interests
of the child. The appellants are not without a remedy.
It is still
open to them to approach the children’s court for relief –
a remedy which is by far more cost effective than
the route they have
chosen.
[28] For these reasons, the appeal is dismissed.
Snyders AJA concurred.
L V Theron
Acting Judge
of Appeal
HEHER JA:
[29] I have read the judgment of Theron AJA. I
respectfully disagree with her conclusion. In my assessment the best
interests of the
child R were overwhelmingly favoured by the grant of
the application.
Introduction
[30] Goldblatt J said in the court
a
quo
:
‘Whilst
prima facie
it
appears that if the child is in due course adopted by the applicants
she will have a secure and nurturing home and accordingly
it was
strenuously argued by the applicants that I
in my capacity as upper guardian of the child should grant the orders
in that this would be in the best interest of the child, as
will
appear more fully hereunder I am of the view that it is not for this
court to decide what is in the best interest of the child
and that
this should be done in accordance with the procedures set out in
terms of the Child Care Act 74 of 1983.’
[31] In my view that manifests a fundamentally flawed
approach. Section 28 of the Constitution (to which I shall return
later) provides:
‘(2) A child’s best interests are of paramount importance
in every matter concerning the child.’
[32] The first task of the learned judge was to
determine whether the High Court possessed jurisdiction to try the
merits of the application.
If it did, he was bound to consider and
evaluate all relevant facts placed before him with a view to deciding
the issue which was
of paramount importance.
[33] That process did not exclude the possibility that
the best interests of the child might lie in the ultimate decision of
another
court which for appropriate reasons of law and fact was
competent to decide the matter. But that is a conclusion which could
only
be arrived at as a result of balancing all the relevant aspects
affecting the child’s interest, including the public interest
and the interest of the applicants in so far as such matters bore on
the interest of the child. Similarly, while the interests of
children
generally are important they are only so to the extent that the child
in
this
case will
benefit or be adversely affected by the furtherance or limitation of
those interests because this matter concerns the child
R and no
other. The peculiar facts of this case cannot be determinative or
even persuasive of the rights of any other child whose
interests are
not the same.
[34] The learned judge’s approach limited him to
legal and policy considerations. The result was, as I shall attempt
to demonstrate,
an unsatisfactory triumph of form over substance.
Jurisdiction
[35] The applicants sought an order of sole custody and
sole guardianship. That was not a disguised attempt at circumventing
the adoption
laws. They made it clear that they intended to apply for
an adoption order in the United States in due course and they
presented
their case with a view to showing that the ultimate
objective was attainable in fact and law.
[36] The high court, as the upper guardian of minors, is
empowered and under a duty to enquire into all matters concerning the
interest
of children. It may make orders for custody and guardianship
and does so on a daily basis. The children’s court, a creature
of statue, is expressly empowered to make orders for adoption. One
may infer from the detail in which the exercise of its powers
are
circumscribed in the Child Care Act that the legislature intended it
to exercise the power of adoption to the exclusion of a
high court.
However no powers to make orders for sole custody or guardianship are
expressly included in its enabling legislation
nor, I think, are to
be implied. A high court and the children’s court are equally
open to persons who are not South African
citizens.
[37] In the circumstances the High Court was, as to
jurisdiction, competent to hear the application. I should note that
such competence
does not appear to have been disputed in the court
a
quo
and was conceded in this Court.
The relevance of adoption procedures to the
application
[38] I wish to make it clear at the outset that a
determination of what is in the best interests of a child who is the
subject of
an application like the present one required the High
Court to ensure that the fullest protection is afforded to the child.
Any order
which it might ultimately make must needs have been
preceded by an investigation which satisfied the court that no
reasonable inquiry
remained unanswered. The applicants sought an
order which would enable them to control the future of the child
beyond the protection
of South African law. These considerations
persuade me that, although the applicants did not seek an order for
adoption, the case
which they presented should nevertheless have been
measured against the standards which they would have been obliged to
meet if they
had done so. If the application falls materially short
of those standards the High Court would have failed in its duty to
the child
if it granted the application and the appeal cannot
succeed. The balance of this judgment is premised on the need to test
the application
accordingly.
Factors relevant to the operation of s 28(2) in the
application
i) Factors personal to the child
At the time of the application R Joy W was almost
eighteen months old. She has now reached two and a half years. Her
parents are unknown
and cannot be traced. One cannot exclude the
possibility that at some future time the mother may come forward and
establish her kinship
but that seems unlikely. R is of African
origin. She has, since her first week in this world, been cared for
by foster parents, the
first and second respondents, who are American
citizens living in South Africa. They are reaching the stage where,
because of multiplying
responsibilities, they will be obliged to
place her in an orphanage or similar institution unless she is first
adopted. The evidence
establishes that as a child grows towards the
age of five the prospects of adoption diminish. Until the launching
of the application
no prospective adoptive parent had shown an
interest in R. At the hearing of the appeal counsel for the
applicants moved to have
additional evidence placed before the court
by affidavit of the foster father, David W, deposed to on 5 December
2006, the essential
allegations of which are the following:
‘3. R was placed in the care of the Second Respondent and me on
17 November 2004. To date, no one other than the First and
Second
Appellants has ever expressed any interest whatsoever in making R a
permanent part of his or her life.
4. In particular, no one other than the First and Second Appellants
has visited R whilst she has been in our care with a view to
adopting
her, fostering her in our place and stead, or hosting her for
weekends or for any part of each week.
5. In contrast, the First and Second Appellants have been in frequent
telephonic and email communication with the Second Respondent
and
myself, with a view to enquiring about the progress being made by R
and to keep themselves appraised of her development and well-being.
6. The Second Appellant even returned to Johannesburg in July 2006,
accompanied by his eldest son, Django DG Junior, to spend time
with R
and introduce her to his son.
7. Although several of the other children in the care of Second
Respondent and myself have been adopted during the time R has been
living with us, R remains in the foster care of the Second Respondent
and myself as she has done since 17 November 2004.
8. The Second Respondent and I had agreed to foster R temporarily
until a permanent family could be found for her. We are not seeking
to adopt R, nor is it our intention to have her live with us
permanently.
9. R is now over two years of age. In my opinion, she will languish,
in an institution if a permanent family is not found for her:
she
requires parental care, even if that is in another country.’
[39] The admission of the affidavit was not seriously
opposed. Its content is clearly relevant and material. The best
interests of
a minor child are dynamic not static. In my opinion the
affidavit contains information essential to a just and sufficient
determination
of those interests and should be admitted. Counsel for
the
amicus curiae
, the
Centre for Child Law,
submitted that it must
carry little weight since the application and the pending appeal
would probably have discouraged interest in
the child. That is an
inference which in my view does not reach a level of probability. In
any event the future prospects of the
child must be judged by what
has happened and what is probable in the future and not by what may
have happened in different circumstances.
[40] What is clear is that R has a need for and a right
to family or parental care (s 28(1)(b) of the Constitution). Her
prospects
of satisfying either the need or the right are bleak and
diminishing as the months pass.
ii) Factors personal to the applicants
[41] I consider it unnecessary to enter upon detail in
this regard. The applicants’ case is entirely unquestioned.
Their own
evidence of a stable, happy and secure family life in
reasonably affluent circumstances and an attractive environment is
supported
by affidavits from persons who know them and by the report
of the Virginian adoption agency, Autumn Adoptions Inc, which carried
out a comprehensive investigation. Every personal circumstance seems
to favour the applicants as future adoptive parents for the
child.
One is bound to conclude that the future which they offer her is a
glowing one which would be difficult to match at a level
of material,
emotional and spiritual concerns even in the Republic of South
Africa.
iii) Matters of public interest
[42] Goldblatt J quoted the views of the
amicus
curiae in extenso
with approval and a minimum
of comment. I think it necessary to examine them in closer detail.
South Africa’s international treaty obligations
[43] The
amicus
submitted
that the grant of the order would be in conflict with or at least
circumvent such obligations.
[44] Relevant to this aspect are ss 39(1), 231(2) and
(4) and 233 of the Constitution. The correct approach is that
formulated by
the Constitutional Court in
S v
Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at 413-4:
‘[35] Customary international law and the ratification and
accession to international agreements is dealt with in s 231 of
the
Constitution, which sets the requirements for such law to be binding
within South Africa. In the context of s 35(1), public international
law would include non-binding as well as binding law. They may both
be used under the section as tools of interpretation. International
agreements and customary international law accordingly provide a
framework within which chap 3 can be evaluated and understood, and
for that purpose, decisions of tribunals dealing with comparable
instruments, such as the United Nations Committee on Human Rights,
the Inter-American Commission on Human Rights, the Inter-American
Court of Human Rights, the European Commission on Human Rights,
and
the European Court of Human Rights and, in appropriate cases, reports
of specialized agencies such as the International Labour
Organisation, may provide guidance as to the correct interpretation
of particular provisions of chap 3.’
[45] South Africa has adopted the Convention on the
Rights of the Child. Art 3 affirms the best interests of the child as
‘a
primary consideration’ in all actions concerning
children whether undertaken by public or private social welfare
institutions,
courts of law, administrative authorities or
legislative bodies.
[46] Art 21 provides:
‘States Parties that recognize and/or permit the system of
adoption shall ensure that the best interests of the child shall
be
the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by
competent authorities who determine, in accordance with applicable
law and procedures and on the basis of all pertinent and reliable
information, that the adoption is permissible in view of the child’s
status concerning parents, relatives and legal guardians and that, if
required, the persons concerned have given their informed consent
to
the adoption on the basis of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an
alternative means of child’s care, if the child cannot be
placed in a foster or an adoptive family or cannot in any suitable
manner be cared for in the child’s country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys
safeguards and standards equivalent to those existing in the
case of
national adoption;
(d) Take all appropriate measures to ensure that, in inter-country
adoption, the placement does not result in improper financial
gain
for those involved in it;
(e) Promote, where appropriate, the objectives of the present article
by concluding bilateral or multilateral arrangements or agreements,
and endeavour, within this framework, to ensure that the placement of
the child in another country is carried out by competent authorities
or organs.
[47] South Africa has adopted but not yet made part of
its municipal law the Hague Convention on Protection of Children and
Co-operation
in Respect of Intercountry Adoption 1993 (‘the
Hague Convention’). In this regard The Children’s Act 38
of 2005
has been passed by Parliament. The Act proposes inter alia to
provide for inter-country adoptions and to give effect to the Hague
Convention. The legislation has been some time in the preparation but
even so there is no immediate prospect of it being brought
into
force. I am prepared to assume that sooner rather than later a date
will be fixed for its operation.
[48] The relevant provisions of the Hague Convention are
the following:
‘
Article 4
An adoption within the scope of the Convention shall take place only
if the competent authorities of the State of origin-
a)
have established that the child is adoptable;
b)
have determined, after possibilities for placement of the
child within the State of origin have been given due consideration,
that
an intercountry adoption is in the child’s best interests;
c)
have ensured that
(1) the persons, institutions and authorities whose consent is
necessary for adoption, have been counselled as may be necessary and
duly informed of the effects of their consent, in particular whether
or not an adoption will result in the termination of the legal
relationship between the child and his or her family of origin,
(2) such persons, institutions and authorities have given their
consent freely, in the required legal form, and expressed or
evidenced
in writing,
(3) the consents have not been induced by payment or compensation of
any kind and have not been withdrawn, and
(4) the consent of the mother, where required, has been given only
after the birth of the child; and
(d)
have ensured, having regard to the age and degree of
maturity of the child, that
(1) he or she has been counselled and duly informed of the effects of
the adoption and of his or her consent to the adoption, where
such
consent is required.
(2) consideration has been given to the child’s wishes and
opinions,
(3) the child’s consent to the adoption, where such consent is
required, has been given freely, in the required legal form,
and
expressed or evidenced in writing, and
(4) such consent has not been induced by payment or compensation of
any kind.’
‘
Article 5
An adoption within the scope of the Convention shall take place only
if the competent authorities of the receiving State-
a)
have determined that the prospective adoptive parents are
eligible and suited to adopt;
b)
have ensured that the prospective adoptive parents have
been counselled as may be necessary; and
c)
have determined that the child is or will be authorized to
enter and reside permanently in that State.’
Every principle of the Hague Convention which is
relevant to this application (and its spirit) has been satisfied by
the evidence
presented to the court
a quo
in
so far as that was practicable.
[49] In terms of Art 6 of the Hague Convention a
contracting state is to designate a Central Authority to discharge
the duties which
are imposed by the Convention upon such authorities.
Chapter IV of the Convention sets up the procedural requirements for
inter-country
adoptions. The procedure is initiated in the state of
the proposed adoptive parents and carried on between the respective
Central
Authorities who are responsible for the prescribed
investigations and reports. Art 21 ensures protection for a child
after transfer
to the receiving state and before adoption. Art 29
places limits on
contact between the prospective adoptive parents and the
child’s parents or any other person who has care of the child
prior
to satisfaction of certain requirements of the Convention. Art
30 provides for preservation of information concerning the child’s
origin, parents and medical history.
[50] Art 4(b) quoted above recognizes and gives effect
to the principle of subsidiarity. Goldstone J in
Minister
of Welfare and Population Development v Fitzpatrick
[2000] ZACC 6
;
2000
(3) SA 422
(CC) (at para 23
fn
13)
described subsidiarity as ‘
the principle that
intercountry adoption should be considered strictly as an alternative
to the placement of a child with adoptive
parents who reside in the
child’s country of birth’
. The principle is
also referred to in paras 27, 32 of that judgment. To the
last-mentioned paragraph Goldstone J added the following
footnote,
(33 at p 433):
‘Although no express provision is
made for the principle of subsidiarity in our law, courts would
nevertheless be obliged to
take the principle into account when
assessing the “best interests of the child”, as it is
enshrined in international
law, and specifically art 21
(b)
of
the Constitution that “(w)hen interpreting the Bill of Rights,
a court, tribunal or forum . . . must consider international
law’.
Of particular importance in this context are the remarks
of the learned justice in para 32 of the judgment:
‘The concerns that underlie the
principle of subsidiarity are met by the requirement in s 40 of the
Act [the Child Care Act
74 of 1983] that courts are to take into
consideration the religious and cultural background of the child, on
the one hand, and the
adoptive parents, on the other.’
As I shall attempt to show (in paragraphs 62 to 68
below) all the underlying concerns to which the learned justice
referred have indeed
been answered by the applicants.
[51] In my view any recognition of the ‘Interim
Central Authority’ or the children’s court as an
implementer of
inter-country adoptions in relation to the present
application would be inappropriate. The law must be applied as it is,
not as it
may become, however probable the prospect. There are of
course no regulations in place to regulate inter-country adoptions
because
there is, at the present time, no statute which authorizes
the content or making of such regulations. The furthest this Court
should
go is to give appropriate weight to the content of the
prospective law and the views expressed by the representatives of the
Department
and the Society and to recognize the eventual objectives
that they are striving to achieve, all in the context of determining
what
is in the best interest of the child R W. Both the applicants
and the child are entitled to the full benefit of the law as it is.
An attempt to superimpose the inchoate legislation on the application
would be unfair to the child and the applicants, against her
best
interest (in so far as it puts a damper on an application by
prospective adoptive parents in or from the United States) and
would
subject consideration of the substance of the application to
unnecessary delay without the prospect of achieving a concomitant
benefit for the child. It is not without relevance that the
applicants have indicated, while the proceedings in the High Court
were
under way, that their financial ability to pursue further
litigation in South Africa was in serious doubt.
30
Nor do I regard it as fair to the child that her future
should depend upon the determination of wholly unnecessary legal
battles to
determine the form of an application which is to place her
in the applicants’ care.
[52] Before I consider the relationship between the case
made by the applicants and the legal considerations, it is necessary
to refer
to the interaction between the Hague Convention and the
content of the Children’s Act. It was common cause in the
application
and on appeal that the Department of Social Welfare was
in the process of setting up the structures which the Convention
contemplates
on an interim basis pending the operation of the
legislation. It was however also clear that these structures are
incomplete and
that, in the particular case of proposed adoptions by
citizens of the United States, not yet adequate to serve the demands
of the
Convention. Section 24(1) of the Children’s Act
preserves sole jurisdiction in granting orders of guardianship to a
high court.
However s 25 proposes that an application for
guardianship by a non-South African citizen is to be regarded as an
inter-country adoption
for the purposes of the Hague Convention and
Chapter 16 (which legislates for such adoptions). In terms of the
proposals in that
Chapter adoptions between countries are to be
initiated between the Central Authorities of Hague Convention
countries or between
the competent authority of a non-convention
country and the Central Authority of the Republic. The intention
appears to be that the
Central Authority will accredit child
protection organizations in the Republic to act on its behalf in
investigating and reporting
on any such application for adoption. To
further this purpose such an accredited organization may enter into
working agreements with
accredited adoption agencies in other
countries.
[53] The implementation of the procedure cannot be
divorced from the creation of adequate structures to cope with
inter-country adoptions.
The reality at the time that this
application was launched (as it still is today) is that-
1) both South Africa and the United States have not
passed laws which incorporate the Convention in their domestic law;
2) neither country has created a Central Authority which
is empowered by law to exercise the functions which the Convention
contemplates
(and for which, in South Africa, the Children’s
Act will provide the legal framework);
3) ‘accredited’ South African agencies, such
as the Johannesburg Child Welfare Society, have established no
working agreements
with adoption agencies in the United States.
[54] I disagree strongly with Theron AJA that the grant
of the application would ‘sanction an adoption procedure which
is in
conflict with international treaties which South Africa has
ratified’.
[55] The substance of the Hague Convention is the
achieving of the child’s best interest through the formal
structures which
are to be provided by the adopting states. In the
overall conclusion which I have reached I am satisfied by the
totality of the evidence
presented by the applicants that in this
case, the goal has been reached despite the structural shortcomings
(which should not be
laid at the door of the applicants or be allowed
to prejudice the child).
The policy of the Department and the agency
[56] The
amicus
informed
us that the Johannesburg Child Welfare Society (‘the Society’)
is accredited by the Department as a body authorized
to exercise
powers on its behalf under the Child Care Act and in its capacity as
Interim Central Authority. Ms Pamela Wilson deposed
to an affidavit
on its behalf in opposition to the application. She said:
’15. As an agency, we have an adoption policy in place where it
is stated that we will only negotiate with approved and recognized
adoption agencies in overseas countries. . .’
[57] Dr Maria Mabetoa, the Chief Director: Children,
Youth and Families in the Department, deposed as follows:
‘
Only organizations/private social workers that have
registered a speciality in adoptions, who have a working agreement in
place with
a foreign accredited organization, can do intercountry
adoptions. Organizations and social workers do therefore not work
randomly
with any country, but with a country they know well and
where procedures were spelt out in the working agreement. . . Most of
the
working agreements currently in place are with other Hague
countries that have also ratified the convention. The only exception
is
a working agreement between Johannesburg Child Welfare and
Botswana
. This agreement was supported by the Department of
Social Development for the following reason: Although the culture of
the population
in Botswana differs from the population in South
Africa, it is not as radical as other countries. . .
This
Department is of the opinion that when working with a non-Hague
country, such as the United States of America, one must be careful
with procedures and responsibilities as the Convention does not apply
and therefore the necessary safeguards do not exist
.’
(The emphasis is mine.)
[58] I understand the quoted passages to say that
because the Society and the Department do not have working agreements
in place with
the United States an agency such as the Society cannot
negotiate adoptions involving United States citizens, or, at best,
will only
do so in rare cases. In an affidavit in reply filed by the
applicants’ attorney on their behalf it was made clear that my
understanding
is, if anything, a generous interpretation of a
restrictive policy. Ms Wybrow deposed as follows:
’11. In addition and pursuant to my discussions with the
Amicus
on the refusal of the Department of Social Development to allow
placements to the United States of America in particular, I forwarded
to the
Amicus
via email on 7 December 2005, the email I had
previously submitted in the
Reid
matter before this Honourable
Court (Case No. 05/27085), wherein the American Applicants were
advised by the Department of Social
Development that they would not
be allowed to adopt South African children, (despite the provisions
of
Fitzpatrick
).
12. I annex hereto and marked “DLW4” a copy of the
abovementioned email.
13. I also telephoned Mrs Raath, the Commissioner of Child Welfare,
Johannesburg Children’s Court, on 24 January 2006 and was
advised that a policy decision had been taken not to allow
Inter-Country adoptions to the United States of America.
14. I advised the
Amicus
of this in an email dated 24 January
2006, a copy of which is annexed hereto and marked “DLW5”.
15. Mrs Raath suggested I telephone Mrs Marike Bloem of the “Interim
Central Authority”, which I then did on 25 January
2006. Mrs
Bloem confirmed that the stance of her Department remained as per
Annexure “DLW4”, in that they would not allow
adoptions
to the United States of America. I was advised by Mrs Bloem that the
only exception would be if it were an “in-family”
placement. The reason given to me was that no one in South Africa had
“experience” in dealing with the United States
of
America.
16. Despite receiving the Applicants’ Heads of Argument, the
Memorandum of Advocate Skinner S.C., the Memorandum from Advocate
Julyan S.C., and the documentation and emails referred to in
Paragraphs 6 to 11 above, the
Amicus
has not seen fit to make
any mention of these facts in her submission to this Honourable
Court.’
[59] The
amicus
has
also not seen fit to seek leave to rebut any of these averments. As
they merely serve to confirm the statements of policy to which
I have
referred in the affidavits of Wilson and Mabetoa I have no hesitation
in accepting them at face value. They tell me that the
policy which
the Department, its agency and the Johannesburg Children’s
court has adopted is not one which is likely to support
or assist a
United States citizen in the adoption of a South African child, to
state the matter at its lowest. Moreover they make
it clear that the
Department and the agency do not regard themselves as properly
equipped to handle such applications by reason of
the lack of contact
between the social welfare agencies of the respective countries. It
is, in the circumstances, hardly surprising
that the applicants
followed the route of a high court application. But it is astonishing
that the main submission of the
amicus
(accepted by Goldblatt J) was and is that the
children’s court is the forum best-equipped to deal with the
application in the
particular circumstances of this case.
[60] The
amicus
also
submitted that if the children’s court shows itself fettered by
policy against an adoption by the applicants they would
have every
right to review its decision. That may be so, but it is hardly an
approach which favours the interest of the child in
obtaining an
appropriate hearing as soon as reasonably practicable and while the
applicants are still willing and able to pursue
the matter. I think
the applicants were well-advised in the circumstances to pursue the
route which they did.
vi) The concerns of the
amicus
curiae
[61] In amplification of her submission that the
children’s court is the proper and appropriate forum the
amicus
referred to certain matters which, she
submitted, would better and more appropriately be investigated and
decided by a children’s
court. (I do not ignore Ms Julyan’s
disturbing submission on behalf of the applicants that in the normal
course of events no
such investigation is carried out in the
children’s court for
reasons of lack of capacity, lack of expertise, inertia
or sheer indifference. I find it sufficient to test Ms Skelton’s
submissions
at face value.) Those matters are:
i) subsidiarity;
ii) potential exploitation for monetary or other
reasons;
iii) adequate compliance with the adoption procedures
and safeguards laid down in the Child Care Act.
[62] As to subsidiarity, the principle is one recognized
in the interest of children, in order that, wherever possible, a
child shall
enjoy its parental upbringing in a culture which is
familiar to him or her and comparable to that from which he or she
would have
benefited as a sharer in the opportunities open to most
other children in the country of his or her birth with normal
parental care.
The applicants in presenting their case made the
following averments in this regard:
a) that since birth the child has been cared for by Mr
and Mrs W and has been given their surname;
b) no other potential parents have expressed an interest
in having the child placed permanently with them;
c) the Third Respondent, the Roodepoort Child and Family
Welfare Society does not have any prospective parents for the child;
d) the applicants are of African descent and have been
interested in African culture throughout their lives; they have done
extensive
research on and study in South African history, people,
culture and art.
e) the applicant’s own children have been raised
‘with a real sense of what it means to be an African-American’,
believing that each child should be imbued with a sense of pride as
to who they are and where they come from;
f) the applicants intend to raise R ‘with an
in-depth knowledge of her roots and her history, and to travel back
to South Africa
with her in future so that she can develop an
intimate knowledge of her country of origin’.
[63] In her submissions to the court
a
quo
the
amicus
conceded that ‘there is no clear system
relating to establishing whether there are any prospective South
African adopters .
. . and it is evident that the Department of
Social Development will need to establish clear procedures in this
regard’. She
suggested that, in order to comply with the
subsidiarity principle, ‘substantial efforts’ to place
the child in foster
care or adoption in South Africa must be made.
She was not able to suggest in argument on appeal how such efforts
were to be made.
[64] In her affidavit Ms Wilson deposed that
‘6. Johannesburg Child Welfare Society has prospective local
adoptive parents on the waiting list for female babies between
the
ages of birth – 5 years old. The majority of our adoptive
parents are black and most of them prefer to adopt a girl. There
are
certain cultural beliefs behind the demand for girls rather than
boys. There is therefore always a greater demand for girls and
the
adoptive parents will wait much longer if they especially want a
girl. Over the past few years there has been an encouraging
increase
in the number of local black adopters approaching the agency and we
always have people on the waiting list. We also have
local applicants
wishing to adopt trans-racially. It is for this reason that we
usually only consider our older black boys (from
1 year upwards) for
inter-country adoption. Johannesburg Child Welfare Society always has
prospective adopters on its adoption waiting
list, waiting for girls
of all ages. There is no acceptable reason why a female baby should
be placed out of the country when there
is such a demand within the
country.
7. With regard to this particular case, our agency has not received
any requests for a local family for this baby.’
[65] She does not suggest that the Society, with its
list of prospective adopters, has been able to effect a single
introduction between
such persons and the child. The proof of the
pudding must be in the eating.
[66] As to what may be the reasonable processes after
the exhaustion of which the subsidiarity principle may be deemed to
be fulfilled,
Dr Mabetoa said
‘A national register of children available for adoption and
prospective adoptive parents (RACAP) will have to be established
by
the Department of Social Development. No child can be considered for
an inter-country adoption unless the child has been on the
register
for 60 days and no fit and proper parents could be found within the
country.’
[67] Three inferences arises from this: first, that the
ability and means to test the availability of prospective parents is
regarded
as a national responsibility; second, the dissemination of
information about the availability of a child for adoption is a
matter
to be carried out through the instrumentality of a
comprehensive list known by all persons desirous of adoption to be
available for
perusal; third, in those circumstances an unrewarded
period of 60 days will be deemed to satisfy the principle of
subsidiarity. It
is immediately apparent that such standards have no
relevance at all to the present case; in the absence of appropriate
structures,
they set an impossible level of compliance for the
private citizen. In my view the court must deal with the evidence
before it. The
degree of interest shown in the child until now –
which is non-existent – must be regarded as the closest proof
to the
likelihood that prospective parents will emerge after this
case is concluded.
[68] There is a further aspect of importance in this
regard. The subsidiarity principle does not exist in a vacuum.
Goldstone J, as
I have earlier noted, regarded s 40 of the Child Care
Act as embodying ‘the concerns that underlie the principle of
subsidiarity’.
Section 18(3) of the Act provides that in
considering an application for adoption ‘the children’s
court shall have regard
to the matters mentioned in section 40’.
Those matters are ‘the religious and cultural background of the
child concerned
and of his parents as against that of the person in
and to whose custody he is to be placed or transferred’. But
the circumstances
of R are not those of an ordinary child from a
broken home. She was abandoned at birth. She has no experience of a
religious or cultural
background other than such as Mr and Mrs W have
provided for her. Their religious and cultural background is
essentially that of
the applicants themselves. It seems to me that,
in the peculiar circumstances of this case, the subsidiarity
principle is very largely
reduced in importance by reason of these
uncontested facts. In so far as regard should still be had to that
inherent and perhaps
dormant cultural heritage which is conferred by
the fact of being born in a particular environment or background, I
have already
pointed out that the applicants have undertaken to
respect and promote that awareness. It seems to me, as a probability,
that the
cultural alienation of R, should she be taken by the
applicants to the United States and there adopted, will be little
different
from that of any other young South African child who is
taken by his parents to a foreign country. Such children are
notoriously
adaptable, the more so while very young.
[69] The
amicus
highlighted
four possible aspects of exploitation: the grasping adoptive ‘parent’
who seeks to make money out of the child
with no bona fide intention
to adopt or care for the child; the exploitative and conscienceless
adoption agency which will prepare
reports to suit its client; the
undesirability of contact between ‘adoptive parent’ and
the child before adoption other
than through or under the supervision
of an independent social worker; the inability of a South African
court to oversee the continuing
care of a child removed under the
pretext of an order for custody and guardianship. As to the first two
possibilities the evidence
presented by the applicants should be
approached with care. But, doing so, it clearly and satisfactorily
establishes the good faith
of both the applicants and Autumn
Adoptions Inc. Moreover the Society and the Department to whom it was
open to make enquiries through
official or private channels have not
produced a tittle of evidence which casts doubt or suspicion on
either. As to the third consideration
it is no doubt desirable that
the prospective parents, the reporting social welfare worker and the
child should be at arms length
during the adoption procedures both to
ensure the integrity of the investigation and reports and to avoid
the potential of emotional
turmoil in the child if the application
for adoption fails or is abandoned. In the present instance the
applicants employed a South
African private social worker of 30 years
experience in the field of adoptions, Ms Hanekom, to prepare a report
for submission to
the High Court. Neither Ms Hanekom nor her report
was the subject of any criticism by the professional bodies involved
in the matter.
In the circumstances it seems to me that the criticism
of conflict with good social work practice inherent in that
employment is
sufficiently met by the acceptable manner in which she
in fact carried out her mandate.
[70] Lastly, it is true that the court which grants an
order in the terms sought by the applicant places itself beyond the
possibility
of continuing to oversee the welfare of the child. But
that, of course, applies to any child lawfully removed from South
Africa at
the instance of a custodian. The more important question is
the integrity and reliability of the custodian and that is on the
papers
convincingly answered in favour of the applicants. In the
present instance the case for removal is visibly strengthened by an
affidavit
produced by the applicants from Ms Karen Law, an attorney
practicing in the State of Virginia of more than 20 years appropriate
experience
who practices in family law. She speaks to ‘a
foreign child’s immigration status upon entry to the United
States and
to the oversight provided by the United States Citizenship
and Immigration Services (‘USCIS’) and the Commonwealth
of
Virginia from entry until the child’s adoption is
finalised’.
[71] It is unnecessary to enter upon the detail. The
following passages from her affidavit are highly relevant (and
indicative of
her thoroughness):
’17. After submitting the Immigration documentation, I
continued to monitor the progress of the DG application to USCIS. The
DG family received final approval to adopt two orphans from South
Africa on the twentienth (20) September 2005. A copy of their
approval
notice is attached. This approval indicates that the family
has satisfied USCIS that they will provide a good home for up to two
orphans from South Africa.’
and
’28. Prior to the finalization of the adoption, R Joy’s
welfare would be overseen by the Virginia Court system, the
Commissioner
of Social Services, and Autumn Adoptions, Inc. If there
were any mistreatment, Social Services would have jurisdiction to
immediately
address that in Juvenile and Domestic Relations Court
under Section 63.2-1517 of the Virginia Code, 1950 Edition, as
amended. In
addition, Autumn Adoptions, Inc. is required by Virginia
Code Section 63.2-1509, 1950 Edition, as amended, to report any
suspicion
of child abuse to Social Services. Virginia laws to protect
the best interest of the child are very strict with regard to abuse
and
neglect, and the Juvenile and Domestic Relations Court has the
authority to remove a child from home temporarily or permanently
where
abuse or neglect is suspected.
’29. In addition, for six months after R Joy entered the U.S.,
the family would be in a probationary period, pursuant to Virginia
Code, Section 63.2-1210, 1950 Edition, as amended. During this
period, Virginia law requires that the family be visited by a
licensed
child-placing agency three times with at least ninety days
between the first and last visit. Autumn Adoption Agency, Inc. has
made
a commitment to conduct the three required post-placement visits
(See attached). The purpose of the visits is to ensure the well-being
of the child in the adoptive family.
30. At the end of the probationary period, the Agency is directed to
furnish a full report to the Commissioner of Social Services
for
review under Virginia Code, Section 63.2-1212, 1950 Edition, as
amended. If the Commissioner is concerned about the welfare of
the
child, he has the authority to refuse to approve the finalization of
the adoption.
31. When the six-month probationary period has ended, the adoptive
family can file a Petition in Circuit Court to finalize the adoption,
pursuant to Virginia Code, ection 63.2-1227-1228, 1950 Edition, as
amended. The Petition is then forwarded to the Agency that conducted
the post-placement visits during the probationary period. The Agency
has ninety days to write a report of Investigation, which is
then
forwarded to the Commissioner of Social Services for review. If the
Commissioner is satisfied with the report and the Circuit
Court that
has jurisdiction over the prospective adoptive family is satisfied
that all other legal requirements have been met, the
Court will issue
a Final Order of Adoption. Typically, it takes about ten (10) months
from the time the family returns home with
the orphan until the
family is awarded the Final Order of Adoption.
32. I am experienced in handling adoption finalizations and the DGs
have included enough funds in my retainer to cover that process,
which I will begin when the required six-month probationary period
has elapsed.
33. Once the family has been awarded a Final Order of Adoption, the
child automatically becomes a U.S. citizen under the Child
Citizenship
Act of 2000, because the final requirement for
citizenship is satisfied. However, to obtain proof of citizenship,
the family files
an application for a Certificate of Citizenship with
USCIS. The DGs understand the necessity of applying for a Certificate
of Citizenship
and I am experienced in assisting families with these
types of applications.
34. Because South Africa is a country with whom the United States has
diplomatic relations, Virginia gives full faith and credit
to the
order of the South African court awarding sole custody and sole
guardianship to the DGs. This means that the DGs would be
considered
the legal guardian of R Joy in Virginia with the same rights and
privileges as if a Virginia court had awarded guardianship.
There is
no separate procedure in Virginia law to mirror the guardianship
order of the South African high court, because the Virginia
courts
recognize the authority of the South African High Court order.’
In the report of Ms Hanekom, confirmed on oath, she
stated
‘It must be said that the United States of America has one of
the best adoption After-care Systems in the world. Everything
possible will be done to make sure that the children’s best
interests are served. By law there are mandatory follow-ups done
on
the family for a period of two years and a multitude of services are
rendered for adopted children and their families.’
[72] No aspect of the evidence of Ms Law or Ms Hanekom
was placed in dispute. The possibility of exploitation through lack
of supervision
is in the circumstances excluded on any reasonable
basis and is entirely speculative. I am satisfied that the practices,
laws and
procedures of the State of Virginia are designed for the
best interests of children generally and that R will not be
prejudiced by
committing her care to the trusteeship of the
authorities of that State. The difference in status to which Theron
AJA refers in para
14 is of no consequence given what Ms Law says in
paras 29 to 33 of her affidavit and the assurance that the applicants
will expeditiously
pursue the route of an adoption under Virginian
law.
vii) The procedures and requirements of the Child
Care Act
[73] The
amicus
placed
reliance on the judgment in
Minister of Social
Welfare and Development v Fitzpatrick
. She
submitted that the inference to be drawn from it was that the
children’s court alone through its oversight of the operation
of the Act was the appropriate forum to bring an adoption application
or one which in substance sought to adopt a child. That judgment
certainly held that the procedures of the Act applied, were properly
and appropriately sufficient to protect a child in cases of
adoption.
It did not, because it was not necessary to do so, decide that
applications for sole custody and guardianship at the instance
of a
foreign citizen must be brought in the form of an adoption
application to a children’s court. I am prepared to accept
that
in the exercise of its duty as upper guardian in applications like
the present a proper exercise of its protective function
requires a
high court to consider whether the substance of the requirements laid
down by the Act for an adoption has been met and
I shall do so. In
doing so it is also proper to acknowledge the
bona
fide
intentions of the applicants to submit
the final determination of the adoption issue to a competent and
well-equipped adjudication
in a foreign jurisdiction. I do not accept
the submission that the children’s court possesses by virtue of
training, skills,
experience or the facilities available to it for
investigation any advantages over a high court. Of course there are
exceptions in
both courts and on both sides of the line but there is
no acceptable basis for such a generalized proposition.
[74] Section 18(4) of the Child Care Act prohibits the
making of an order for adoption unless the court is satisfied as to
certain
matters. Specifically, on the facts of this case-
(a) both applicants are qualified to adopt the child as
contemplated by s 17(a) of the Act, and are possessed of adequate
means to
maintain and educate the child;
(b) both applicants are of good repute and fit and
proper to be entrusted with the custody of the child;
(c) the proposed order and the eventual adoption in the
United States will serve the interests and conduce to the welfare of
the child;
(d) thee are no known parents to give consent;
(e) the foster parents have stated in writing that they
do not wish to adopt the child;
(f) the requirements of s 40 have for the reasons
discussed at length earlier in this judgment, been satisfied.
[75] The applicants placed before the High Court at
least as much as (and according to counsel for the applicants, far
more than)
would have been required of them in a children’s
court application. This is not, in my view, a case where any
necessary safeguards
or protections, whether arising from local or
international law, have been left unexplored or can reasonably be
strengthened by an
application to the children’s court.
[76] It was submitted that the granting of this order
would be the thin end of the wedge, enabling foreigners to take
advantage of
a loophole not open to South African citizens. I do not
regard such an order as anything of the sort. Any South African who
is able
to make out a case for sole custody and guardianship is at
liberty to approach a high court for such an order and thereafter to
remove
the child from the country without the need to disclose that
intention at the time of applying for the order. Nor will he
necessarily
find his application scrutinized according to the
standards which apply to an adoption. I would also point out that the
present application
presents a total and unique picture which
justifies the order which is finally made. Whether any other
applicants can satisfy the
onus on them will depend entirely on the
facts peculiar to that application. In another case the facts may
justify the conclusion
that the best interests of the child require
that he or she be formally adopted in South Africa before being
removed from the country.
The weight of evidence lies heavily against
it in present instance.
Conclusion
[77] Having attempted to identify the arguments for and
against the granting of the order it becomes necessary to decide
whether the
benefits and advantages to the child in this case
outweigh those on the opposite side of the scale to the extent that
the level of
the child’s best interest is reached in the
overall evaluation. I have no doubt that that level is comfortably
exceeded. The
substantial value to R of a stable, happy and
potentially prosperous future with the applicants in the United
States and the enormity
of the deprivation and prejudice which she
will suffer if no adoptive parent should come forward far outweighs
the sum of formal
compliance with the Child Care Act, the speculative
possibility of remotely comparable parents coming to her rescue in
South Africa,
the preservation of her cultural and religious
identity, the maintenance of a rigid and unyielding policy on
intercountry adoptions,
and the avoidance of the possibility of an
undesirable precedent. At the same I remain wholly unpersuaded that
an inflexible insistence
on strict compliance with every procedural
aspect laid down for a formal adoption according to the supervision
of a children’s
court would have strengthened or weakened the
applicants’ case in any material respect.
[78] For all these reasons I am left in no doubt that
the appeal should succeed.
___________________
J A HEHER
JUDGE OF APPEAL
PONNAN JA
[79] I have had the benefit of reading the judgments of
Heher JA and Theron AJA and for the reasons that follow I am in
agreement
with the conclusion reached by my learned Sister.
[80] The success of a litigant's claim is often
dependent upon the path chosen to press that claim. A claim should
not be decided
in splendid isolation but rather within the context of
the form chosen to stake the claim. Not infrequently an asserted
claim, with
at first blush an aura of invincibility, falters because
the chosen legal vehicle proves inappropriate for the challenges of
the
legal journey.
[81] The real issue in this matter, to my mind, relates
to the procedure adopted by the appellants and the form chosen to
press their
claim. For it seems to me that the form chosen carries
with it its own failure. What the appellants ultimately sought was in
effect
an inter-country adoption. How they hoped to achieve that was
through the guise of some other application.
[82] It has been suggested that it was permissible for
the high court to be approached in its capacity as the upper guardian
of the
minor child for the relief sought. There can be no question
that the high court has jurisdiction to grant a sole custody and
guardianship
order. But that was not all that it was being asked to
do in this case. That order was no more than a precursor to the
authority
solicited for the removal of the child to the United States
where an adoption order was to be sought from the appropriate court.
The High Court was therefore being asked in effect to grant an
adoption order to foreign nationals. That it could not do.
[83] South African nationals seeking an adoption order
are obliged to approach the children's court which has the sole
authority and
power to grant orders of adoption. I can conceive of no
basis on which foreign nationals should escape that stricture. The
burden
for South African citizens desirous of adopting is quite
rightly an onerous one. The Child Care Act offers what the
Constitutional
Court (
Fitzpatrick
para 31) describes as a coherent policy of child and
family welfare at the heart of which is the children's court. It is
the first
port of call for citizens seeking to adopt and should
likewise be such for non-citizens as well. In terms of s 18(1)(
b
)
of the Act no adoption may be made before consideration of a
prescribed report from a social worker. Needless to add the social
worker must be an independent social worker with no ties -
particularly financial - to the prospective adoptive parents. The
children's
courts are charged with examining the qualifications of
the prospective adoptive parents and granting adoption orders.
Importantly,
a children's court may not grant an adoption order
unless it is satisfied that the requirements contained in s 18(4) of
the Act have
been met.
[84] Article 21(
c
)
of the UNCRC states that State Parties are required to ensure that a
child concerned by an inter-country adoption enjoys safeguards
and
standards equivalent to those existing in the case of national
adoptions. In my view, those safeguards and standards clearly
apply
to both the procedures employed before an order is made and the
status of the child following upon the making of an order.
[85] Where a child's existing family no longer functions
to meet her needs, article 20 of the UNCRC requires the state to
provide
special protection and assistance to such a child and 'to
ensure alternative care' for her. That alternative care may include
adoption.
Article 21 requires those states which recognise adoption
to ensure that 'the best interests of the child shall be the
paramount
consideration'. Article 21(
b
)
of the UNCRC articulates the principle that inter-country adoption,
as an alternative form of child care, may only be considered
if there
is no suitable alternative for the child in her country of origin.
This principle finds expression in article 4(
b
)
of the Hague Convention which provides that the competent authorities
of the state of origin must 'have determined after possibilities
for
placement of the child within the state of origin have been given due
consideration, that an inter-country adoption is in the
child's best
interests'. The African Charter is even more emphatic. It provides
that inter-country adoption may, as a last resort,
be considered as
an alternative means of child care if the child cannot be placed in a
foster or an adoptive family or cannot in
any suitable manner be
cared for in the child’s country of origin.
[86] These international instruments promise a more
child-centred approach to inter-country adoptions. This approach
seeks to eliminate
various abuses that have hitherto been associated
with the movement of children from one country to another, such as
profiteering,
bribery, falsification of birth documents, coercion of
biological parents, the intervention of unqualified or paid
intermediaries
and the sale and abduction of children.
[87] One of the most important objectives of the Hague
Convention is to secure the automatic recognition in all contracting
states
of adoptions made in accordance with the Convention and thus
avoid the legal limbo of non-recognition which has in the past
plagued
many children who have been the subject of inter-country
adoptions.
[88] The detailed legal, administrative and procedural
provisions of the Hague Convention informed the thinking of the
Constitutional
Court in
Fitzpatrick
.
That at a stage when this country had neither ratified the Convention
nor indicated an intent to do so. Since then not only have
we
ratified the Convention, but in addition we have gone some way to
incorporating it into domestic law.
[89] During 1997 the South African Law Commission was
tasked by the Ministers for Welfare and Population Development (now
Social Development)
and Justice to investigate legislative reform
proposals in the Child Law sphere. A project committee
was appointed and an issue paper was published for
general information and comment in May 1998. The issue paper was
followed by an
extensive process of consultation with all the
relevant stake-holders including a large array of NGO’s working
in this sphere.
The ultimate consequence of all of this was a final
three volume report and draft Children's Bill which was released in
2002 by the
Commission at the conclusion of that process.
[90] The Children's Bill was introduced into Parliament
during 2003. The Bill covered areas of both national and provincial
constitutional
competence. The composite legislative enactment
produced by the Commission thus came to be split into what became
known as the s
75 Bill and the s 76 Bill (a reference to the
constitutional provisions which outline parliamentary procedure for
national and provincial
Bills respectively). A decision was taken to
deal with the s 75 Bill first. It is envisaged that the sections
eliminated from the
composite Bill will be enacted as an amendment to
the principal Act, perhaps during 2008. The s 75 Bill which evolved
into the
Children's Act No 38 of 2005
was ultimately passed by
Parliament on 14 December 2005 and signed into law by the President
on 8 June 2006. Once the Act comes into
operation, the provisions of
the Hague Convention which are contained in Chapter 16 will be
incorporated into domestic law. That
does not mean, however, that the
provisions of the Convention can be safely ignored until then. The
Act itself represents the culmination
of a protracted legislative
process. Notwithstanding the Convention not yet having been
incorporated into domestic law, the Department
of Social Development
has put in place interim arrangements to give effect to this
country's international convention obligations.
[91] Both the passage of the Act and the implementation
of the interim arrangements are a firm and considered statement of
governmental
policy in regard to inter-country adoptions.
Section 273
of the
Children's Act is
unequivocal in stating that no person may
process or facilitate an inter-country adoption otherwise than in
terms of Chapter 16.
[92] The policy framework underpinning the
Children's
Act is
the clearest signal from the South African state that it
intends to honour its international legal obligations in regard to
the protection
of children who are to be the subject of inter-country
adoption. Courts should accordingly not sanction a procedure that
flies in
the face of this country's treaty obligations. Furthermore,
in choosing between two possible procedural options a court should,
it
seems to me, rather plump for the one that is compatible with this
country’s international legal obligations than the one that
is
not.
[93]
Section 24(1)
of the
Children's Act provides
:
'Any person having an interest in the care, well-being and
development of a child may apply to the High Court for an order
granting
guardianship of the child to the applicant.'
That, however, is qualified by
s 25
which reads:
'When application is made in terms of
section 24
by a non-South
African citizen for guardianship of a child, the application must be
regarded as an inter-country adoption for the
purposes of the Hague
Convention on Inter-country Adoption and Chapter 16 of this Act.'
The procedure adopted by the appellants will thus be
expressly proscribed once the Act comes into force. Until that
occurrence, which
is just a matter of time, this Court should be slow
to lend its
imprimatur
to
a procedure that ignores the internationally recognised safeguards
and standards to be found in the Hague Convention. For a court
to
permit what is sought in this case, would, I dare say, be akin to
embarking upon a law-making function inconsistent with what
has
already been ordained by the Legislature. This course of conduct
would obviously be constitutionally inappropriate.
[94] The essential premise of the international
instruments is the paramountcy of the criterion of the best interests
of the child.
Paradoxically we are being asked to jettison all of the
procedural and structural safeguards that seek to achieve that end in
the
context of inter-country adoptions ostensibly because it is in
the best interests of this particular child to do so. As interesting
as that esoteric debate may be, it is perhaps unnecessary to embark
upon it for the tr is that the route chosen by the appellants
precluded a proper ventilation of that issue.
[95] The safeguards essential to the enquiry, such as
independent experts and an inquisitorial procedure of the nature
envisaged in
the Child Care Act during adoption proceedings, are
absent in the procedure chosen by the appellants. Moreover, it is
quite inexplicable
that in an application of the kind encountered
here a
curator ad litem
had
not been appointed to represent the interests of the minor child.
Once underway there may well have been a divergence of interests
between the minor child and all the other parties, not anticipated at
the inception of the application. To my mind a
curator
ad litem
was thus indispensable. Although
cited as respondents the foster parents made common cause with the
appellants and the Roodepoort
Child and Family Welfare Society
adopted what can only be described as a supine attitude. In that, in
my view, the Roodepoort Child
and Family Welfare Society failed the
child. The role of the
amicus curiae
was defined by its brief from Goldblatt J. Despite Ms
Skelton's commendable industry for which we are indebted, she was
obviously
constrained by a rather limited remit. The absence of a
curator
, as also other
independent evidence, is a telling deficiency. It denied the most
important role player -
the minor child
- a voice in those proceedings.
[96] An evaluation of the best interests of this child
must of necessity entail an enquiry into both her long-term and
short-term
best interests and the interplay between the two.
Undoubtedly a difficulty in applying the standard is the
impossibility of predicting
whether certain decisions will in the
long term benefit a particular child. It is so that the child has
been languishing in foster
care since birth. It may well be that
little if any interest has been shown in her by prospective adoptive
parents locally. Why that
is so does not emerge satisfactorily on the
papers. The immediate allure of her being placed with the appellants
is seductively appealing.
But to succumb to that allure is, with
respect, to distort the enquiry and to subvert the long-term
interests of the child to the
immediate gratification that a
placement with the appellants provides. The instinctive joy that is
felt upon learning that a family
has been secured for a foundling and
the natural reticence to deny such a child the rich opportunities
that a placement of that kind
will provide, is understandable. Those
temptations must however be tempered by the important consideration
that an inter-country
adoption is an alternative means of child care
foundational to which is the principle of subsidiarity.
[97] The evidence on behalf of the appellants that the
child's prospects of being placed with adoptive parents who reside in
this
country are slim, is rather perfunctory. With that must be
contrasted the evidence solicited by the
amicus
which is far more cogent. That exercise impels me to the
conclusion that the evidence, such as it is, falls far short of
establishing
that there is an absence of prospective parents in this
country for the child, much less that an inter-country adoption would
be
in her best interests.
[98] I pause to record that the evidential and
procedural lacunae to which I have alluded would either not have
arisen or could have
been remedied by the inquisitorial procedure
available had the route of the children's court been followed. On
that score I hasten
to add that nothing in this judgment should be
construed as a criticism of the appellants. They appear to be
philanthropic people
who obviously acted on advice in launching the
high court application. The appellants are not remediless. They are
still free to
approach the children's court, an avenue that, in any
event, was open to them after their lack of success in the High Court
instead
of their pursuing this appeal. Had the appropriate forum been
approached with the proper application and had all the requirements
been met, an order for adoption would have issued in this country
prior to the departure of the appellants and the child to the United
States. Instead the High Court was asked in consequence of the grant
of the order sought to sanction the removal of the child to
the
United States in the expectation that an adoption order would be
granted there. Until the order is granted there — and
there is
no guarantee that it will be — the child will be in a state of
legal limbo. The security which comes with an adoption
order is what
the Hague Convention requires and the best interests of the child
demands. To fashion relief that is less than that
accorded to her by
the Convention is, to my mind, the very antithesis of the best
interests of the minor child.
_____________________
V M
PONNAN
JUDGE OF
APPEAL
HANCKE AJA:
[99] The legal process has been fiddling for more than
18 months while the child’s prospects are consumed by the
delay. The
majority of the Court adopts a non-possumus attitude. They
seem to be content that the fires be stoked for some while longer.
For
what? Unless the setting aside of the court order is likely to
result in a real benefit to the child, her best interests are merely
being held to ransom for the sake of legal niceties. If that is so I
want no part of it. An examination of whether such a benefit
is
likely to flow from the rejection of this appeal results in what
follows hereunder.
[100] In the circumstances of this case an adoption in
South Africa will confer no material advantage on the child, which
she could
not obtain by adoption in the State of Virginia.
[101] The applicants produced evidence sufficient to
satisfy the requirements of the law of adoption in South Africa and
the Hague
Convention on Inter-Country Adoption. There is no advantage
to the child in having them rehash the evidence in the children’s
court.
[102] The applicants cannot reasonably be expected to
make a better case in the children’s court than they have done
here.
[103] There is no real prospect that the applicants will
proceed with the adoption, if they are obliged to pursue it in the
children’s
court. They have not said that they are willing to
do so. Their resources are at an end. They must be disillusioned by
the South
African legal process. The application for adoption will
clearly be a gamble given (
i
)
that this Court would have found that the case presented to it was
insufficient; (
ii
) the
seeming reluctance of the Department, the Society and the children’s
court itself to grapple with adoptions by residents
of the United
States.
31
[104] If the application for adoption is not pursued or
is pursued and is unsuccessful the possibility of another good
Samaritan appearing
to rescue the child is purely speculative. If the
possibility of adoption by South Africans is a reasonable one I would
have expected
the Department, the society or the
amicus
curiae
to have produced evidence to the High
Court. On the contrary the Department has admitted that the
procedures to identify prospective
adoptive parents are not yet in
place.
[105] All the aforegoing features persuade me that the
best interests of the child are served by relying on the case
presented by
the applicants and not by deferring a decision on the
merits.
[106] There is one further matter. The suggestion that
the child was not represented in the application or the appeal seems
to me
to be almost frivolous given the involvement of the foster
parents, the social worker, the Roodepoort Child Welfare Society, the
State and its accredited agency, the Society and the
amicus
curiae
. All are agreed that the applicants
established at least
prima facie
that the best interests of the child lie in the eventual
adoption by them. The only issue raised in opposition is whether that
prima facie
case could
and would be rebutted by using the procedures and standards of the
Child Care Act, the Convention and the Children’s
Act. All
these matters have been thoroughly canvassed. It is in the highest
degree unlikely that separate representation for the
child would have
cast any new light on the application. Neither counsel nor the Court
a quo
thought that a
curator was necessary.
[107] I agree with the judgment of Heher JA. I would
uphold the appeal.
___________________
S P HANCKE
ACTING JUDGE OF APPEAL
1
[2000] ZACC 6
;
2000
(3) SA 422
(CC);
2000 (7) BCLR 713
(CC). In
Fitzpatrick
the
Constitutional Court declared s 18(4) of the Child Care Act 74 of
1983, which expressly prohibited adoption of South African
children
by non-South Africans, unconstitutional. No inter-country adoption
had taken place prior to this decision.
2
Para
31.
3
Section
18(1)(a)reads:
‘The adoption of a child shall be effected by an order of the
children’s court of the district in which the child concerned
resides.’
4
Section
18(3) read with s 40.
5
Section
257(1).
6
Section
232(1).
7
The
objects of the Hague Convention as encapsulated in Article 1 are:
‘
(a)
to establish safeguards to ensure that intercountry adoptions take
place in the best interests of the child and with respect
for his or
her fundamental rights as recognized in international law;
(b) to
establish a system of co-operation amongst Contracting States to
ensure that those safeguards are respected and thereby prevent
the
abduction, the sale of, or traffic in children;
(c) to
secure the recognition in Contracting States of adoptions made in
accordance with the Convention.’
8
Article
21 provides as follows:
‘
States Parties that recognize and/or
permit the system of adoption shall ensure that the best interests
of the child shall be the
paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by
competent authorities who determine, in accordance with applicable
law and procedures and on the basis of all pertinent and reliable
information, that the adoption is permissible in view of the
child's
status concerning parents, relatives and legal guardians and that,
if required, the persons concerned have given their
informed consent
to the adoption on the basis of such counselling as may be
necessary;
(b) Recognize that inter-country adoption may be considered as an
alternative means of child's care, if the child cannot be placed
in
a foster or an adoptive family or cannot in any suitable manner be
cared for in the child's country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys
safeguards and standards equivalent to those existing in the
case of
national adoption;
(d) Take all appropriate measures to ensure that, in inter-country
adoption, the placement does not result in improper financial
gain
for those involved in it;
(e) Promote, where appropriate, the objectives of the present
article by concluding bilateral or multilateral arrangements or
agreements, and endeavour, within this framework, to ensure that the
placement of the child in another country is carried out by
competent authorities or organs.’
9
Fact
Sheet No 36 on Intercountry Adoptions,
International
Social Service General Secretariat, International Reference Centre
for the Rights of Children Deprived of their Family,
available
http://www.iss-ssi.org
/
Resource_Centre/New_Documents/documents/FactSheetNo36ENG.pdf.
10
Minister
for Welfare and Population Development v Fitzpatrick
[2000] ZACC 6
;
2000 (3) SA
422
(CC);
2000 (7) BCLR 713
(CC) para 32 fn 33. Goldstone J, in para
32 states that one of the concerns ‘that underlie the
principle of subsidiarity
are met by the requirement in s 40 of the
[Child Care] Act that courts are to take into consideration the
religious and cultural
background of the child, on the one hand, and
the adoptive parents, on the other’. In terms of s 39(1)(b) a
court is obliged,
w
hen interpreting the Bill of
Rights, to consider international law.
11
Article
24 reads, in relevant part:
‘
States Parties which recognize the system
of adoption shall ensure that the best interest of the child shall
be the paramount consideration
and they shall:
(a) …
(b) recognize that inter-country adoption in those States who have
ratified or adhered to the International Convention on the Rights
of
the Child or this Charter, may, as the last resort, be considered as
an alternative means of a child’s care, if the child
cannot be
placed in a foster or an adoptive family or cannot in any suitable
manner be cared for in the child’s country of
origin’.
12
See
generally Van Heerden, Cockrell, Keightley,
Boberg’s
Law of Persons and the Family
2 Ed
(1999) 450-452.
13
Section
29(2) of the Children’s Act 33 of 1960.
14
Sections
1(4)(e)
and (5) of the
Intestate Succession Act 81 of 1987
.
15
Section
28(2)
reads:
‘A child’s best interests are of
paramount importance in every matter concerning the child.’
See also
Sonderup v
Tondelli
[2000] ZACC 26
;
2001 (1) SA 1171
(CC);
2001
(2) BCLR 152
(CC) paras 28-32.
16
Law
states that she and the appellants’ local attorney had
previously worked together in connection with the adoption of two
South African orphans by an American family. The family were awarded
an order for custody and guardianship of the children in December
2004. It is noted that almost a year later, when Law deposed to her
affidavit, the adoption of the children had not yet been finalised.
17
Articles
21(c) and 24(c) of the UNCRC and the African Charter, respectively.
18
Professor
Dr. William Duncan,
Fundamental Principles of the Hague
Convention of 29 May 1993 on Protection of Children and Co-operation
in Respect of Intercountry
Adoption
, a paper delivered at The
Hague Forum for Judicial Expertise, in The Hague, Netherlands, 3-6
September 2006.
19
The
concept ‘permanent placement’ is not defined in South
Africa law. The only form of placement (with non-biological
parents)
that may be described as ‘permanent’ is adoption. At the
hearing counsel for the appellants accepted that
permanent
placement, in the context of this matter, meant adoption.
20
Section
28(1)(b)
provides that e
very child has the
right ‘to family care or parental care, or to appropriate
alternative care when removed from the family
environment’.
21
Para
18.
22
T
he
African Charter contains a similar provision, Article 4(1), which
reads:
‘
In all actions concerning the child
undertaken by any person or authority the best interests of the
child shall be the primary consideration.’
23
Above
fn 8.
24
Artice
1. Above fn 7.
25
Minister
for Welfare and Population Development v Fitzpatrick
[2000] ZACC 6
;
2000 (3) SA
422
(CC);
2000 (7) BCLR 713
(CC) para 23 fn 13.
26
Professor
Dr. Duncan,
Fundamental Principles of the Hague Convention of 29
May 1993 on Protection of Children and Co-operation in Respect of
Intercountry
Adoption
,
supra
.
27
[2000] ZACC 6
;
2000
(3) SA 422
(CC);
2000 (7) BCLR 713
(CC) para 34.
28
Section
18 of the Child Care Act.
Minister of Welfare and
Population Development v Fitzpatrick
[2000] ZACC 6
;
2000 (3) SA 422
(CC);
2000
(7) BCLR 713
(CC) para 33.
29
Above
para 9.
30
In
para 3 of the affidavit of their attorney Ms Wybrow dated 27
February 2006.
31
In
this regard it is important to note what Dr Mabetoa, Chief Director:
Children Youth and Family said in respect of the procedures
that
will have to be implemented
once the
bill comes into operation
, namely:
‘
When an application is made for
guardianship by a non-South African citizen for guardianship of the
child, the application must
be regarded an intercountry adoption for
the purpose of the Convention.’