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[2013] ZAGPPHC 305
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Centre for Child Law v Minister of Social Development (21122/13) [2013] ZAGPPHC 305; 2014 (1) SA 468 (GNP) (30 October 2013)
REPORTABLE
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: 21122/13
DATE:
30 October 2013
In
the matter between:
CENTRE
FOR CHILD
LAW
...................................................................................
Applicant
and
MINISTER
OF SOCIAL
DEVELOPMENT
............................................................
Respondent
Summary:
Declaratory order -
s. 230(3)
of the
Children's Act, 38 of 2005
, does
not preclude a child from being adoptable where the child has a
guardian and person seeking to adopt the child is the spouse
or life-
partner of guardian -
s. 242
of the Act does not automatically
terminate all parental responsibilities and rights of guardian where
such adoption order is granted.
J
W LOUW, J
[1]
The applicant is the Centre for Child Law established by the
University of Pretoria and is registered as a law clinic with the
Law
Society of the Northern Provinces. I shall refer to the applicant as
the CCL. It has brought the present application against
the Minister
of Social Development, who is the Minister responsible for the
implementation and administration of the Children's
Act, 38 of 2005
("the Act"), for an order:
1.
declaring that s. 230(3) of the Act does not preclude a child from
being adoptable in instances where the child has a guardian
and where
the person seeking to adopt is the spouse or permanent life-partner
of the guardian of the child;
2.
declaring that s. 242 of the Act does not automatically terminate all
the parental responsibilities and rights of the guardian
of a child
whose spouse or permanent domestic life-partner seeks to adopt the
child;
alternatively
to 1 and 2
3.
that s. 230(3) of the Act is inconsistent with the Constitution and
invalid to the extent that it precludes a child from being
adoptable
in instances where the person seeking to adopt is the spouse or the
domestic life-partner of the guardian of the child;
4.
that s. 242(1) of the Act is inconsistent with the Constitution to
the extent that it automatically terminates all parental rights
and
responsibilities of the guardian of a child whose spouse or permanent
domestic life-partner seeks to adopt the child.
[2]
The main objective of the CCL, in terms of its constitution, is to
contribute within its means to establish and promote the
best
interests of children in the South African community, more
particularly to use the law as an instrument to advance such
interests.
It submitted that it had the necessary focus standi in
terms of s. 38 of the Constitution to bring the present application
as it
was an organisation dedicated to uphold and protect children's
rights. There can be no doubt that it is in the public interest that
bodies like the CCL exist and that they act, where necessary, to
protect and promote the interests of the children of this country.
I
agree, therefore, that the CCL has standing to bring the
application.
1
The Minister has not challenged the CCL's standing and also does not
oppose the relief claimed by it. This was confirmed by Adv.
Ramoshaba
who appeared for the Minister.
[3]
Ms Carina du Toit, who is an attorney employed by the CCL and who
deposed to the CCL's founding affidavit, states that the matter
arises out of numerous approaches over recent months by parents,
step-parents and practitioners who have been turned away by the
Children's Court when seeking to apply for adoption by a step-parent,
Step-parent adoption refers to where a step-parent, who is
married to
the guardian of a child, wishes to adopt the child. She refers to two
examples.
2
[4]
The first is the case of a child who is currently four years old, to
whom I shall refer as J. J's mother was previously married
to his
biological father, but his mother moved out of the common home while
she was still expecting J. She subsequently got divorced
from J's
father and later applied for sole guardianship of the child. The
application was not opposed by the father. When J was
15 months old,
she met her current husband and they got married some time
thereafter. A daughter was recently born of the marriage.
J's
step-father wanted to secure J's position in the family and decided
that he wished to adopt J. J's father consented to the
adoption.
After lodging the application for adoption with the Children's Court,
J's mother and step-father were contacted by the
clerk of the court
who wanted to know whether they were aware that, in terms of s. 242
of the Act, the adoption would effectively
terminate all parental
rights and responsibilities. J's mother agreed to sign the s. 242
consent form because she believed that
J would be more secure and
protected if he was legally adopted by his step-father and because
she felt that she could in that way
protect J from his father, who
she says was abusive. Immediately upon returning home, she started
doubting whether she had done
the right thing. She and J's
step-father then approached the presiding officer of the court and
tried to persuade him that sections
230 and 231 of the Act made it
possible for a step-parent to adopt their spouse's child without
terminating the spouse's rights
and responsibilities in respect of
the child. They were unsuccessful and they then approached the CCL
for assistance.
[5]
The second example is that of a girl who is currently fourteen years
old. I shall refer to her as T. T's father deserted her
and her
mother when she was eleven months old and they have had no contact
with him since. T lives with her mother and her mother's
present
husband. Although not expressly dealt with in the founding affidavit,
I assume for purposes of the present application
that T's parents
were divorced and that her mother obtained sole guardianship over her
or that, as provided for in s. 236(l)(b)
of the Act, her father's
consent to her adoption was not necessary because he abandoned T or
because his whereabouts cannot be
established. T informed Ms. Du Toit
during a consultation that she considered her step-father as her
father and that she had asked
her mother and her step-father whether
her step-father would adopt her. She told Ms du Toit that she wanted
to "feel like
she belongs" and thus would like to take her
step-father's surname. They approached the Children's Court (not the
same one
as in J's case), where the officials refused to provide them
with the necessary documentation to begin the adoption process. They
were also informed that T's mother would lose her parental
responsibilities and rights if T was adopted by her step-father.
[6]
Section 1 of the Act defines a child as a person under the age of
eighteen years. Chapter 15 of the Act contains the substantive
and
procedural provisions which govern the adoption of children. The
relevant provisions for purposes of the present application
are the
following:
229. Purposes of adoption. - The
purposes of adoption are to -
(a)
protect and nurture children by providing a safe, healthy environment
with positive support; and
(b)
promote the goals of permanency planning by connecting children
230. Child who may be adopted. - (1)
Any child may be adopted if -
(a)
the adoption is in the best interests of the child;
(b)
the child is adoptable;
(c)
the provisions of this Chapter are complied with.
(2) ..
(3)
A child is adoptable if -
(a)
the child is an orphan and has no guardian or caregiver who is
willing to adopt the child;
(b)
the whereabouts of the child's parent or guardian cannot be
established;
(c)
the child has been abandoned;
(d)
the child's parent or guardian has abused or deliberately neglected
the child, or has allowed the child to be abused or deliberately
neglected; or
(e)
the child is in need of a permanent alternative placement.
231. Persons who may adopt child. - A
child may be adopted -
(a)
jointly by-
(i)
a husband and wife;
(ii)
partners in a permanent domestic life- partnership; or
(Hi)
other persons sharing a common household and forming a permanent
family unit;
(b)
by a widower, widow, divorced or unmarried person;
(c)
by a married person whose spouse is the parent of the child or by a
person whose permanent domestic life- partner is the parent
of the
child;
(d)
by the biological father of a child born out of wedlock; or
(e)
by the foster parent of the child.
242. Effect of adoption order. - (1)
Except when provided otherwise in the order or in a post-adoption
agreement
confirmed
by the court an adoption order terminates -
(a)
all parental responsibilities and rights any person, including a
parent, step-parent or partner in a domestic life-partnership,
had in
respect of the child immediately before the adoption.
[7]
It appears from the information received by Ms du Toit from parents,
step-parents and practitioners that the basis upon which
officials at
the Children's Courts turn away prospective applicants for adoption
in the above described circumstances, is that
they consider the child
not to be adoptable by reason of the provisions of s. 230(3) of the
Act. The approach appears to be that
a child who has a guardian does
not fall within one of the categories of s. 230(3) and is therefore
not adoptable. As a result,
a child living safely with an adequate
parent is excluded from being adopted by a step-parent to whom the
child's parent is married
or living with in a permanent domestic
life-partnership .
[8]
Such interpretation and application of s. 230(3) is, in my view,
incorrect. Where a non-custodian parent has consented to an
adoption
of his or her child, as happened in the case of J, such parent must,
in my view, be taken to have abandoned the child
as contemplated in
s. 230(3)(c). "Abandoned", in relation to a child, is
defined in s. 1 of the Act to mean, inter alia,
a child who has
obviously been deserted by the parent, guardian or care-giver of the
child. The definition does not require that
the child must be
abandoned by both parents. The primary meaning of the verb "desert"
in the Shorter Oxford English Dictionary
is "give up,
relinquish, leave". A further meaning given is "forsake,
abandon (a person or thing having a claim
upon one)". These
definitions clearly apply to the situation where a non-custodian
parent consents to the adoption of his
or her child by the spouse or
a person who is the permanent domestic life-partner of the custodian
parent of the child. It follows
that in such circumstances, the child
is adoptable within the meaning of s. 230(3)(c).
[9]
In terms of the definition of "abandoned" in s. 1 of the
Act, a child is also taken to have been abandoned where the
child,
for no apparent reason, has had no contact with the parent, guardian
or care-giver for a period of at least three months.
Again, the
definition does not require that the child must have had no contact
with both parents for the said period. It is also
not required that
the whereabouts of that parent cannot be established. If J therefore
has, for no apparent reason, had no contact
with his biological
father for a period of not less than three months, he will, for that
reason also, be adoptable.
[10]
In terms of s. 233(l)(a) of the Act, a child may only be adopted if
both parents have consented to the adoption, regardless
of whether
the parents are married or not. In a case where a child's biological
parent or guardian has not consented to the adoption
of the child by
a step-parent because his or her whereabouts cannot be established,
as in the case of
T,
such a child will be adoptable in terms of s. 230(3)(b) of the Act.
The section does not require that the whereabouts of both
parents or
guardians cannot be established. Such a child will further be
adoptable in terms of s. 230(3)(a) if the child has, for
no apparent
reason, had no contact with that parent or guardian for a period of
not less than three months.
[11]
The aforegoing interpretation of s. 230(3)(b) and (c) finds support
in s. 231 (1 )(c), which expressly permits the adoption
of a child by
a stepparent. The section does not contain a limitation that a
step-parent may only adopt a child if the child's
non-custodian
parent is no longer alive. It is therefore in order for a step-parent
to adopt a child if the non-custodian parent
has consented to the
adoption of the child or if the child has, for no apparent reason,
had no contact with the non-custodian parent
for at least three
months, or if the whereabouts of the non-custodian parent cannot be
established.
[12]
Adv. Courtenay, who appeared for the CCL, submitted that, should
there be any doubt about the correctness of the above interpretation
of ss. 230(3)(b) and (c), the provisions of the Constitution favour a
conclusion that step-parent adoption in the aforementioned
circumstances is permissible under the
Children's Act. I
agree with
the submission.
Section
28(l)(b) of the Constitution provides that every child has the right
to family care or parental care, or to appropriate
alternative care
when removed from the family environment. An interpretation of the
aforesaid sections of the Act in a way which
permits the adoption by
step-parents in the circumstances mentioned, promotes this
constitutional right. Section 28(2) of the Constitution
further
provides that a child's best interests are of paramount importance in
all matters concerning the child. In S v. M (Centre
for Child Law as
amicus curiae)
3
the Constitutional court said the following:
"The
comprehensive and emphatic language of s 28 of the Constitution
indicates that just as law enforcement must always be
gender-sensitive, so must it always be child-sensitive; that statutes
must be interpreted and the common law developed in a manner
which
favours protecting and advancing the interests of children; and that
courts must function in a manner which at all times
shows due respect
for children's rights."
[13]
I conclude therefore that 230(3) of the Act does not preclude a child
from being adoptable merely because the child has a parent
or
guardian who cares for the child and the person seeking to adopt the
child is the spouse or permanent domestic life-partner
of the child's
parent or guardian.
[14]
The advice allegedly given by officials of the Children's Court to
prospective applicants for adoption that, in terms of s.
242 of the
Act, the granting of an application for adoption by a step-parent
will automatically terminate all rights and responsibilities
of the
parent in respect of the child, ignores the exception provided for in
the preamble of s. 242. In terms thereof, an adoption
order
terminates those rights "except when provided otherwise in the
order............... The Children's Court therefore has
a discretion
to order that the rights and responsibilities of a child's parent or
guardian will not terminate upon the grant of
an adoption order in
favour of the step-parent. It will, save in exceptional
circumstances, clearly be in the best interests of
the child that
such an order be made. The Children's Court is obliged to function in
a manner which in each case promotes the best
interests of the child
and should, except where there are sound reasons not to do so, make
an order that the granting of an adoption
order in favour of a
step-parent will not terminate the responsibilities and rights of the
child's parent or other guardian.
[15]
In view of the aforegoing, it is not necessary to consider the
alternative relief sought by the CCL regarding the constitutionality
of ss. 230(3) and 242(1) of the Act.
[16]
The parties were agreed that, in the event of an order being granted
in terms of prayers 1 and 2 of the notice of motion, the
Minister
should be ordered to publish the order in the Government Gazette.
[17]
In the result, I grant the following order:
1.
It is declared that
section 230(3)
of the
Children's Act, 38 of
2005
, does not preclude a child from being adoptable in instances
where the child has a guardian and the person seeking to adopt the
child is the spouse or permanent domestic life-partner of that
guardian.
2.
It is declared that
section 242
of the
Children's Act, 38 of 2005
,
does not automatically terminate all the parental responsibilities
and rights of the guardian of a child when an adoption order
is
granted in favour of the spouse or permanent domestic life-partner of
that guardian, having regard to the discretion which
section 242
affords the court to order otherwise.
3.
The Minister of Social Development is ordered to publish this order
in the Government Gazette.
J.
W. LOUW
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH COUR
T
HEARD
ON:
1 October 2013
FOR
THE APPELLANT
: Adv. R.M. Courtenay
INSTRUCTED
BY:
The Child Law Centre, University of Pretoria
FOR
THE RESPONDENT
: Adv. Ramushaba
INSTRUCTED
BY:
The State Attorney
1
See:
Freedom under Law v. Acting Chairperson: Judicial
Sen'ice Commission, and Others.
201 I (3) SA 549 (SCA), paras. [21]- [23].
2
The
CCL joined the two children concerned as second and third applicants
to the application, stating that it acts on their behalf.
The
children, of course, do not have the necessary locus standi to bring
such an application and their joinder was also unnecessary.
I will
therefore disregard the fact that they have been joined.
3
2008
(3 ) SA 232 (CC) par. [15]