AD and Another v DW and Others (CCT48/07) [2007] ZACC 27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC) (7 December 2007)

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[2007] ZACC 27
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AD and Another v DW and Others (CCT48/07) [2007] ZACC 27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC) (7 December 2007)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 48/07
[2007] ZACC 27
AD
*
                                                                                                   Â
             Â
First Applicant
DD                                                                                                    Â
        Â
Second Applicant
versus
DW                                                                                                   Â
         Â
First Respondent
CW                                                                                       Â
                Â
Second Respondent
ROODEPOORT CHILD AND FAMILY                                                Â
Third
Respondent
WELFARE SOCIETY
THE CENTRE FOR CHILD LAW                                                    Â

Amicus Curiae
THE DEPARTMENT OF SOCIAL                                              Â
Intervening
Party
DEVELOPMENT
Heard on          :           18 September 2007
Decided on       :           7 December 2007
JUDGMENT
SACHS J:
Introduction
[1]
On 14 November 2004 newly-born Baby R was found
abandoned in a veld in Roodepoort.  She was placed in the foster care of the
first
and second respondents, nationals of the United States of America
resident in South Africa, who were the founders and managers of
a sanctuary for
children in need of care.  The applicants, friends and former fellow
congregants of the first and second respondents,
are also citizens of the United States.  On visiting the first and second respondents in South Africa, they met
Baby R, established
a relationship with her, and resolved to adopt her, if
possible.  This case stems from the legal difficulties they encountered
in
trying to effect an inter-country adoption.
[2]
On seeking legal advice on what route to follow, they
were informed that current policy of those responsible for administering
adoptions
in South Africa would effectively bar their adopting Baby R in
the country.  They were accordingly encouraged to
apply
to the Johannesburg High Court for an order granting them sole custody and sole
guardianship.  This order would enable them
to take Baby R to the United States of America where they could then formally adopt her.
[3]
When they applied to the High Court for an order of
sole custody and sole guardianship, the High Court expressed
concern
about the need to ensure that the best interests of the child would be
protected in the absence of any opposition to the
application.
[1]
Â
The High Court accordingly requested the Centre for Child Law at the University of Pretoria to assist it as amicus curiae.  The
Centre accepted this role and
filed extensive papers which advised against granting the application.  Its
principal contention
was that it would not be in the best interests of Baby R
in particular, and of children available for adoption in general,
for sole
custody and sole guardianship proceedings in the High Court to be used as a
mechanism for by-passing proper adoption proceedings
in the Children’s Court.
[4]
Basing its decision largely on the submissions made by the
amicus, the High Court held that it was not for it to decide what was
in the
best interests of the child; this was something to be done by the Children’s
Court in accordance with the adoption procedures
of the Child Care Act.
[2]
Â
It therefore dismissed the application.
[5]
The
applicants were granted leave to appeal to
the Supreme Court of Appeal.
[3]
Â
The Centre for Child Law applied for and was granted leave to be admitted as
amicus curiae, and again provided extensive information
and argument in support
of its opposition to the granting of the appeal.
[6]
The Supreme Court of Appeal divided sharply, and
by a majority of three to two, dismissed the appeal.  Four judgments were
written.
[7]
Theron AJA
, with whom
Ponnan JA and
Snyders AJA concurred,
held
that to grant
the order sought by the applicants would result in sanctioning an alternative
route to inter-country adoption under
the guise of a sole custody and sole
guardianship application.  This, she stated, was an unsavoury form of by-passing
the Children’s
Court adoption system and jumping the queue.  She held further
that
the appeal should in any event fail because of the principle of
subsidiarity.  In her view, unless it was established that suitable
care could
not be found in a child’s country of origin, an inter-country adoption
application would not lie, whatever other considerations
there might be.
[8]
In a separate concurring judgment, Ponnan JA held that even though
the relevant provisions of the Children’s
Act
[4]
had not yet entered into force,
regard had to be had to the fact that it envisaged that all applications for
sole custody and sole
guardianship of minor children by foreign nationals would
be treated as inter-country adoptions.  Supporting the need for the matter
to
go to the Children’s Court, he held that a court should be slow to lend its stamp
to a procedure which ignored the international safeguards and standards in
the 1993
Hague Convention on the Protection of Children
and Co-operation in Respect of Inter-country Adoption (the Hague Convention)
, even if these did not as yet form part of
South African domestic law.
[9]
Heher JA, with whom Hancke AJA concurred, viewed the
matter quite differently.  He held that as upper guardian of minors, the High

Court was both empowered and obliged to enquire into all matters concerning the
best interests of children.  This empowers it
to make an order for sole custody
and sole guardianship.  It therefore had jurisdiction to hear the application.Â
In the present
matter the High Court should not have opted for a formalistic
approach to procedure.  Instead it should have investigated what
was in Baby R’s
best interests.
  In his view the
papers
showed
that it was overwhelmingly in her best interests for the order of
sole custody and sole guardianship to be granted, since there was
no evidence
of the existence of other prospective adoptive parents for her in South Africa.
[10]
In a separate judgment
concurring in the judgment of Heher JA, Hancke AJA stated that unless the
setting aside of the High Court’s
order was likely to result in a real benefit
to Baby R, her best interests were merely being held to ransom for the
sake of
legal niceties.  This was because an adoption in South Africa would confer no material advantage on Baby R which she could
not obtain if she
were adopted in the United States of America.
[11]
The majority of the Supreme Court of Appeal therefore
dismissed the appeal.  On 22 June 2007 the applicants applied to this Court
for
leave to appeal.  T
he Court set the matter down for hearing on
18 September 2007
.Â
The directions invited any interested party to apply to be admitted as amicus
curiae; the Centre for Child Law did so and was
admitted as amicus with the
right to make both written and oral submissions.  The Court requested the
Johannesburg Bar to recommend
a person to act as curator ad litem to represent
the interests of Baby R;
[5]
the Bar proposed Advocate Melanie Feinstein, who was appointed as curatrix.  Finally,
the Court sent a letter to the Department
of Social Development (the Department)
informing it of the hearing and advising that if it desired to make
representations it should
intervene without delay; the Department responded by
submitting affidavits and briefing counsel to oppose the application.  The

directions laid down a tight time-frame for the lodging of reports and written
submissions, the last one coming in two court days
before the hearing.  I
summarise them in the order they were submitted.
[12]
The applicants sought an order
setting aside and
replacing the order of the Supreme Court of Appeal with an order awarding sole
custody and sole guardianship of
Baby R to the applicants; declaring her
to have been abandoned; discharging the foster care order placing her in the
custody
of the first and second respondents; and authorising the applicants to
leave South Africa with her with a view to their adopting
her in the United
States of America.  They
maintained that t
he High Court
had inherent jurisdiction in respect of applications for sole custody and sole
guardianship even if these applications
were made with a view to secure an adoption
abroad.  They acknowledged that the principle of subsidiarity provided that
ordinarily
a child available for adoption should be placed in circumstances as
close as possible to those of his or her own culture and upbringing.Â
They
submitted, however, that the principle was not intended to create an inflexible
jurisdictional hierarchy which automatically
favoured placement in the child’s
country of origin.  On the contrary, in order to comply with section 28(2) of
the Constitution,
the courts were obliged to adopt a flexible approach focused
on what was in the best interests of the particular child in the particular

situation.
[6]
[13]
The Centre for Child Law maintained its stance
that it was impermissible for the High Court to grant foreigners a sole custody
and
sole guardianship order as an alternative to an adoption order.  It
contended that the Children’s Court had sole jurisdiction
to deal with the
matter, and emphasised that the granting of sole custody and sole guardianship
by the High Court would not provide
protection for the child equivalent to the
safeguards inherent in adoption proceedings undertaken in the Children’s
Court.Â
It was accordingly in Baby R’s best interests, and the best
interests of children generally, for the Children’s Court route
to be followed.
[14]
In similar vein the Department contended that
the procedural route followed by the applicants had been unlawful and repugnant
because
it contravened the provisions of the Child Care Act, the rule of law
and South Africa’s international obligations.  It stated
that the procedure was
contrary to the best interests of South African children in general and those
of Baby R in particular.Â
The Department submitted that there were in fact
potential South African adoptive parents for Baby R.  The question
therefore
was whether her best interests would be served by her being adopted
by the applicants as opposed to her being adopted by South Africans.Â
It
requested that a Children’s Court enquiry be conducted to examine how the
principle of subsidiarity should be applied to Baby R’s
circumstances.
[15]
The curatrix submitted a comprehensive report
[7]
and followed up with written
submissions.  In her view the circumstances of Baby R were unique.  Her
report stated that
of the five South African couples mentioned as prospective
adoptive parents by the Director-General, three were unsuitable, the

suitability of another was speculative, and placement with the remaining couple
was problematic, since Baby R, who was accustomed
to a large foster family,
would be their only child.  She added that with no manifestly suitable local
family placement having
been identified after all this time, Baby R’s
chances of local adoption had become remote.  Baby R was now older and

more entrenched in an American culture, and it was clearly in her best
interests to be placed permanently with the applicants.Â
The curatrix submitted
that giving effect to Baby R’s best interests was a matter that could and
should be separated from
the broader legal and procedural issues raised before
this Court.
[16]
She accordingly recommended that the case be
referred to the Children’s Court, on the understanding that in substance the
requirements
of the Child Care Act had been fully complied with.  There were
three social workers’ reports already before this Court, and
it was neither
necessary nor in Baby R’s best interests that the application for adoption be
started from the beginning again.Â
The Children’s Court should therefore decide
the matter on the papers to be placed before it so as to secure Baby R’s best
interests without delay.
[17]
Shortly after the hearing commenced the Chief
Justice enquired from the applicants and the Department whether in the light of
the
curatrix’s report there was a possibility of their reaching an agreement on
how the matters should be resolved.  The Court then
adjourned and the parties
later indicated that they had indeed reached agreement.  As a result they asked
for the following terms
to be made an order of court by consent:
“1.        RW is declared to have been
abandoned.
  2.       The Children’s Court for the district of Johannesburg is
directed to hear on an expedited basis the application
for adoption of RW by
the applicants, within 30 days of today’s date.  The Children’s Court is
requested in its deliberations
to consider the reports of the social workers
Hanekom and Jackson and the report to this Court by the curatrix ad litem,
Advocate
M Feinstein in relation to the requirements of section 18(1)(b) of the
Child Care Act 74 of 1983.
  3.       It is recorded that given the exceptional circumstances
of this case, and in the light of the evidence before this
Court, the parties
agree that it is in the best interests of RW to be adopted by the applicants
and that the principle of subsidiarity
is not a bar to the adoption.
  4.       The Department of Social Development and the amicus
curiae record that they express no opposition to such adoption,
and the
Department undertakes to sign all documentation necessary to facilitate the adoption.
  5.       The adoption, once finalised, shall be registered by the
Department.
  6.       The appointment of Advocate M Feinstein as curatrix to RW
is extended to enable her to act on behalf of RW in the
adoption proceedings.”
The Court acceded to their request
and made the agreement an order of court by consent.  As this agreement did not
resolve the
underlying issues, the Court indicated that judgment on those
issues would be given in due course.  In dealing with these issues
I will also
furnish reasons why the Court made the agreement an order of court.
The application for leave to
appeal
[18]
Two interrelated constitutional issues are
raised.  The first concerns the jurisdiction of the High Court to hear an
application
for sole custody and sole guardianship where the ultimate purpose
is for the child to be adopted in another country.  The second
is how section
28(2) of the Constitution should be interpreted in the context of a proposed
inter-country adoption.
[19]
A more difficult question is whether it is in
the interests of justice for leave to appeal to be granted now that the
agreement
between the parties has been made an order of court.  In my view,
although the determination of the best interests of Baby R
is no longer a
live issue before this Court, there are strong reasons for dealing with other
issues raised in the application for
leave to appeal.
[20]
In the first place, the Supreme Court of Appeal
divided sharply on the question whether a High Court has jurisdiction to hear
an
application for sole custody and sole guardianship with a view to
facilitating an adoption in a foreign country.  The issue could
well arise
again, and it is appropriate that this Court resolve the matter.  Secondly, the
role of the subsidiarity principle
in respect of inter-country adoptions was
forcefully raised in the majority judgment in the Supreme Court of Appeal, and
provided
the subtext for most of the questions debated in both the High Court
and Supreme Court of Appeal.  It is a key concept for regulating
inter-country
adoption, and it is in the interests of the many children whose future will be
at stake in days to come that more
clarity be given on the significance of the
principle for South African law.
[21]
I accordingly hold that it is in the interests
of justice that these issues be dealt with.  Leave to appeal should therefore
be
granted.
[22]
I will deal first with the question of the
jurisdiction of the High Court to grant a sole custody and sole guardianship
order as
a step towards adoption in a foreign country.  I will then consider
the significance of the subsidiarity principle for inter-country
adoption in South Africa.
The jurisdiction of the High Court
[23]
Until 2000 the matter of inter-country adoption
was dealt with definitively and explicitly by statute.  Section 18(4)(f) of the

Child Care Act stated that an adoption of a child born of any person who was a
South African citizen, could only be made if the
applicant,
or one of
the applicants, was a South African citizen resident in the Republic.
[8]
  The effect of this provision was
that no court would be permitted to facilitate the adoption of a South African
child by a person
who was not a South African citizen.  Then in
Fitzpatrick
[9]
this Court declared the provision to be unconstitutional.
[24]
Dealing with the question of whether the
declaration of invalidity should be suspended to allow Parliament time to
remedy the defect,
Goldstone J stated that Children’s Courts were the sole
authority with power to grant orders of adoption.  The Children’s Courts
would
oversee the well-being of children and examine the qualifications of applicants
for adoption.  In his view the Child Care
Act established a coherent policy of
child and family welfare, which, if conscientiously applied, guarded against
the dangers inherent
in inter-country adoption.  In these circumstances no
suspension of the order of invalidity was necessary.
[10]
[25]
If in the present matter the Children’s Court
was available to handle the proposed adoption of Baby R, why did the
applicants
not go there directly?  The answer lies in the fact that they felt
that instructions issued by the Department would block them
as citizens of the United States of America from adopting Baby R, independently of what her best
interests might be.  In particular,
they were advised that the subsidiarity principle
would be applied by the Children’s Court in such a way that they could not
become adoptive parents even if the facts showed that it was in Baby R’s
best interests to go to the United States with them
as their adopted child.
[11]
[26]
The applicants explained that their recourse to
the High Court for a sole custody and sole guardianship order was not a
disguised
attempt to by-pass the Children’s Court, but an openly-declared
effort to secure the adoption by means of the only judicial mechanism
open to
them.  They asserted that their experienced professional advisors had made
numerous and varied attempts to communicate
constructively with the Department,
and responses from both officials in the Department and Commissioners of Child
Welfare had
confirmed that in practice the Children’s Court route would be a
cul de sac for them.
[27]
Only in documents filed in this Court shortly
before the hearing did it become clear that much of what had been conveyed to
the
applicants’ attorneys was an inaccurate reflection of the true content and
status of the departmental policy.
[12]
Â
The Director-General acknowledged that the Department had no right to “veto” an
inter-country adoption application.  Nor
was a letter of no objection from the
Department a jurisdictional requirement before a Children’s Court could grant
the order
concerned.
[13]
Â
The Department is at present limited to exercising an advisory and monitoring
role.  The Director-General added that the Department
did not have a policy
prohibiting inter-country adoptions by United States nationals, and that to the
extent that such a perception
prevailed amongst adoption practitioners and
departmental officials, it was unfortunate.
[28]
These facts were regrettably not made known by
the Department to the litigants or the High Court, nor were they later
furnished
to the Supreme Court of Appeal.  Had they been communicated earlier
the case might have taken a different course.  The High Court
undoubtedly acted
correctly when it requested that the Centre for Child Law participate as amicus.Â
Its participation ensured
that the Court would receive dependable and
well-researched information and hear argument on the legal and welfare context
in which
the application had to be considered.  Yet, valuable though the
participation by the Centre proved to be, on its own it was insufficient.
[14]
  While the Centre for Child
Law was able to produce extremely helpful materials on departmental policy,
there were limits to the
degree to which it could act as a surrogate for the
Department.  In my view, then, the High Court should have invited the
Department
to intervene directly and clarify its position in relation to
inter-country adoption.
[29]
With or without the necessary information, the
High Court was correct in holding that the appropriate route for the proposed
inter-country
adoption was to bring proceedings for adoption in the Children’s
Court and not to pursue a sole custody and sole guardianship
order in the High
Court.  On the facts of this case the decision of the High Court to decline the
application for sole custody
and sole guardianship cannot be faulted.  If after
applying to the Children’s Court, the applicants were later to feel that
departmental policy as understood and applied by the presiding officer at the
Children’s Court had resulted in a violation of
Baby R’s best interests as
protected by section 28(2) of the Constitution, their remedy would have been to
take the matter
on review to the High Court.  In this way the departmental
policy could have been challenged rather than avoided.  In the event,

forbidding though the prospects of a protracted legal battle might have been,
the result could not have been more arduous than
the forensic journey that
actually was to follow.
[30]
By the time the matter finally came to be dealt
with in the Supreme Court of Appeal the situation had changed in one important
respect.
[15]
Â
Baby R had by then passed her second birthday, and had become deeply
embedded in her foster family.  A factor favouring
her adoption by the
applicants had become stronger.  In matters of this nature the interests of
minor children will always be
paramount.  To this extent the approach of the
minority in the Supreme Court of Appeal was correct in its insistence that
Baby R’s
best interests should not be mechanically sacrificed on the altar
of jurisdictional formalism.
[31]
In its capacity as upper guardian of all minor
children, the High Court had not been dispossessed of its jurisdiction to make
such
an order, even if the ultimate objective was adoption in the United States of America.  The Child Care Act should not be interpreted
as creating by
implication an inflexible jurisdictional bar to a High Court granting sole
custody and sole guardianship orders
to foreigners desirous of effecting an
adoption in a foreign jurisdiction.
[16]
[32]
Yet, this was not one of those exceptional cases
where it could be said that to follow the Children’s Court route would not have

been in the child’s best interests.  Thus the majority of the Supreme Court of
Appeal were right in deciding that the granting
of a sole custody and sole
guardianship order, either by the High Court or by itself, would not have been
the appropriate judicial
response.
[33]
In the present matter it was clearly in
Baby R’s best interests that the process pre-figured in
Fitzpatrick
for inter-country adoption be followed.  Referring the matter to the Children’s
Court would have ensured that there would be
safeguards and appropriate
procedures to protect her, something that a sole custody and sole guardianship
order could not achieve.Â
Furthermore, the presiding officer at the Children’s
Court would in all probability be well-positioned to apply the applicable
law
pertaining to the rights of the child.
[17]
Â
The High Court could not have provided a similar legal infrastructure, nor
could it have guaranteed that the adoption order in
the United States of America would have been sought and granted.
[34]
I conclude therefore that from start to finish
the forum most conducive to protecting the best interests of the child had been
the
Children’s Court.  Although the jurisdiction of the High Court to hear the
application for sole custody and sole guardianship
had not been ousted as a
matter of law, this was not one of those very exceptional cases where by-passing
the Children’s Court
procedure could have been justified.  It follows that the
question of the best interests of Baby R in relation to adoption
was not
one to be considered by the High Court, nor at a later stage by the Supreme
Court of Appeal, but a matter to be evaluated
by the Children’s Court.  The
question was not strictly one of the High Court’s jurisdiction, but of how its
jurisdiction
should have been exercised.
[35]
I now consider whether the majority in the
Supreme Court of Appeal was right in holding that the principle of subsidiarity
without
more barred the granting of an adoption order in favour of the
applicant.
The principle of subsidiarity
[18]
[36]
A direct consequence of the decision in
Fitzpatrick
was that while foreigners were not barred from adopting South African children,
no clear statutory regime existed to deal with
the many specific problems
inherent in inter-country adoption.  Thus, although the Children’s Court
procedures were designed
to ensure proper enquiries into the suitability of all
potential adoptive parents, nationals and non-nationals alike, the only
guidance as far as regulating inter-country adoption was concerned came from
section 40 of the Child Care Act, which required that
regard be had to
achieving a religious and cultural match between the child and the adoptive
parents.  Because of the paucity
of statutory guidance, it therefore fell
largely to international law, and more specifically to the principle of
subsidiarity,
to fill the lacuna.
[37]
The subsidiarity principle in relation to
inter-country adoption was first articulated internationally in article 17 of
the United
Nations Declaration on Social and Legal Principles Relating to the
Protection and Welfare of Children, with Special Reference to
Foster Placement
and Adoption Nationally and Internationally.
[19]
Â
It reads:
“If a child cannot be placed in a foster or
an adoptive family or cannot in any suitable manner be cared for in the country
of
origin, intercountry adoption may be considered as an alternative means of
providing the child with a family.”
[38]
The issue which dominated the litigation in this
matter was how to interpret and apply this principle to Baby R’s
situation.Â
In
Fitzpatrick
Goldstone J pointed out that the
principle required that inter-country 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.  He emphasised that regardless
of the fact that
it was not expressly provided for in our law, the subsidiarity principle had to
be respected.  It was enshrined
in article 21(b) of the United Nations
Convention on the Rights of the Child (the CRC),
[20]
which, according to
section 39(1)(b) of the Constitution had to be considered when
interpreting the Bill of Rights.
[39]
It is important to note that in
Fitzpatrick
the
question of subsidiarity was raised only in relation to remedy.  In
the present matter, however, it has been central.  It is the
mediating principle for adoption across political and cultural borders
which,
as Volkman has vividly put it, is seen as being simultaneously “an act of love,
an excruciating rupture and a generous
incorporation, an appropriation of
valued resources and a constitution of personal ties.”
[21]
  The application of the
subsidiarity principle to this emotion-laden subject has fluctuated with
changing attitudes towards inter-country
adoption over the decades.
The history of inter-country
adoption
[40]
Inter-country adoptions were initially spurred
on by the socio-economic and welfare decrepitude caused by World War II.
[22]
  Many countries were left with
war orphans for whom they did not have the resources to provide alternative
care within the country.Â
Witnessing this tragedy, individuals from unaffected
and lesser affected countries who wished to alleviate the plight of these
children did so through adoption.
[41]
However, from its origins as a sequel to
international political turmoil, it mutated into a measure aimed at alleviating
the plight
of couples unable to conceive.
[23]
Â
Thus, already during the 1980s adoption was regarded internationally as serving
the interests of prospective adoptive parents
rather than those of the child in
question, as it is better viewed today.
[24]
  Combined with the effects of
contraception, legalised abortion, lowering birth rates and improved social
welfare benefits for
single mothers in developed countries, to which can be
added the effects of armed conflict and natural disasters in the developing

world, this adult-centred approach led to an increased interest in
inter-country adoptions.
[25]
[42]
Much of the initial humanitarian optimism over
inter-country adoption was shed, however, as reports of child trafficking, “child

markets” and “baby farms” spawned over the last four decades.
[26]
  As a result some of the
so-called “sending States”
[27]
either prohibited or strictly regulated such adoptions.
[28]
  Other countries
[29]
which experienced exceptional
exigencies placed moratoria on inter-country adoptions pending an overhaul of
national legislation
in order to align it with international standards,
[30]
while yet other countries did
nothing at all.  The global result was a disarray of national policies in
sending countries, described
by Van Bueren as “a confusion which often operates
against the best interests of the child.”
[31]
[43]
For many years the broad stance of developing countries
was to discourage inter-country adoptions, regarding them as “exporting”
their
children to developed countries, as a blemish on a country’s perceived ability
to care for its citizens, and as exploitation
of developing countries by
developed ones.
[32]
Â
A major shift came about, however, as a result of the adoption and application
of the Hague Convention.  It is now largely accepted
that most countries from
both the receiving and sending sides of the world earnestly seek only to
provide good alternative family
care for ill-fated children.
[33]
  The standardisation and
universalisation of criteria and controls has produced a situation where
embracing the institution of
inter-country adoption is increasingly less seen
as a sign of weakness or the acceptance of “international charity”, or even
a
dereliction of a social welfare duty resting on a State.  The emphasis has
shifted to acknowledging that onerous duties are
imposed on a sending State to
apply diligently its discretion on whether an inter-country adoption would
serve the best interests
of the particular child involved.
[34]
The
Hague Convention
[44]
The history of inter-country adoption made it
clear that a specialist convention was needed to regulate such adoptions
specifically.Â
Propelled by the demand for inter-country adoptions which had
been proceeding on a steady upward trajectory since the 1970s,
[35]
the international community
filled the hiatus by concluding the Hague Convention.  Its inception on 1 May
1995 heralded a nascent
global approach to inter-country adoption,
acknowledging that—
“the child, for the full and harmonious
development of his or her personality, should grow up in a family environment,
in an atmosphere
of happiness, love and understanding . . . [and that] each
State should take, as a matter of priority, appropriate measures to enable
the
child to remain in the care of his or her family of origin . . . [and
recognise] the necessity to take measures to ensure that
intercountry adoptions
are made in the best interests of the child and with respect for his or her
fundamental rights, and to prevent
the abduction, the sale of, or traffic in
children”.
[36]
[45]
In line with this recognition the Convention
addressed various objectives.  Firstly, it sought to create legally binding
standards
in inter-country adoption.  Secondly, it introduced a system of
supervision that would ensure the observation of these legal standards,

including prevention of adoptions that were not in the best interests of the
child, and that would protect children from adoptions
that occurred through
duress, fraud or for monetary reward.  Thirdly, it established communication
channels between authorities
in sending and receiving countries.  Fourthly, it
furthered co-operation between sending and receiving countries to promote
confidence
between those countries.
[37]
[46]
What is clear is that the Convention seeks to
regulate inter-country adoptions, not to facilitate them.
[38]
  It sets out detailed legal,
administrative and procedural provisions
[39]
to ensure that its objects are fulfilled.
[40]
[47]
Rigorous procedural mechanisms are put in place to
reduce possible abuse.  In these circumstances the framers appear to have felt

it would be permissible to reduce the relatively autonomous effect of the
subsidiarity principle as expressed in the CRC and the
African Charter on the
Rights and Welfare of the Child (the African Charter),
[41]
and bring it into closer alignment
with the best interests of the child principle.
[42]
Â
Thus, using language notably less peremptory, article 4(b)
of the Convention provides:
“An adoption within the scope of the
Convention shall take place only if the competent authorities of the State of
origin 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”.  (Emphasis added.)
[48]
The Convention seems to accept the notion that
“[e]nsuring that a child grows up in a loving, permanent home is the ultimate
form
of care a country can bestow upon a child”,
[43]
even if that result is achieved through an inter-country adoption.Â
It follows that children’s need for a permanent home and
family can in certain
circumstances be greater than their need to remain in the country of their
birth.
[44]
[49]
However, the intricacies consequent upon an
inter-country adoption must serve as confirmation that the principle of
subsidiarity
should be adhered to as a core factor governing inter-country
adoptions.
[45]
Â
This is not to say that the principle of subsidiarity is the ultimate governing
factor in inter-country adoptions.  As
Fitzpatrick
emphasised,
[46]
our Constitution requires us
in all cases, including inter-country adoption, to ensure that the best
interests of the child will
be paramount.
[47]
  Indeed, the preamble to the Hague Convention suggests that there
will be circumstances in which an inter-country adoption will
be preferable for
a child over institutional care in the country of birth.
[48]
[50]
Determining the best interests of the child
cannot be circumscribed by mechanical legal formulae or through rigid
hierarchical rankings
of care options.  As was stated in
M
:
“A truly principled child-centred approach
requires a close and individualised examination of the precise real-life
situation
of the particular child involved.  To apply a pre-determined formula
for the sake of certainty, irrespective of the circumstances,
would in fact be
contrary to the best interests of the child concerned.”
[49]
In practice this requires that a
contextualised case-by-case enquiry be conducted by child protection
practitioners and judicial
officers versed in the principles involved in order
to find the solution best adjusted to the child, taking into account his or
her
individual emotional wants, and the perils innate to each potential solution.
[50]
[51]
On a pragmatic level, the successful application
of the principle will depend heavily on the ability of placing agencies in the
country of origin to investigate adequately the viability of local placement
for the child in question.
[51]
Â
It is one of the basic premises of the Hague Convention that adoption is not a
private affair but a State responsibility requiring
the involvement of
government agencies of both sending and receiving countries.
[52]
  Accordingly, collaboration
between the government and child welfare agencies in the country of origin is
conducive to success
in inter-country adoptions.
[53]
  Conversely, flouting the
established regulatory institutions is to be discouraged.  The debate has
accordingly shifted away
from implacable abstract positions in favour or
against inter-country adoption.  It now focuses more on how best to put dependable

institutions in place to ensure that:
·
High priority is given to finding suitable local
placement wherever possible;
·
where, however, it would be in the best
interests of a particular child to be adopted by non-nationals, a
properly-regulated inter-country
adoption will be permissible; and
·
sending and receiving States co-operate through
appropriate public machinery to prevent abuses and to ensure adequate follow-up
when inter-country adoptions take place.
Inter-country adoption in South Africa
[52]
Since
Fitzpatrick
the Department has made
significant progress towards putting in place all the necessary structures for
inter-country adoptions.Â
It has sought simultaneously to ensure that the best
interests of all children are safeguarded and that the State adheres to its

various obligations in terms of international law.
[54]
[53]
After South Africa’s accession to the Hague
Convention,
[55]
Chapter 16 of the Children’s Act was passed to give effect to the Convention.
[56]
  The Act has been signed by
the President, but has not yet entered into force in its entirety.
[57]
  In the interregnum, the Child
Care Act continues to govern both national and inter-country adoptions.  In
order to prepare the
way for bringing the Children’s Act fully into force, the
Department has accordingly concluded working agreements with numerous
countries
and established an interim Central Authority.
[58]
Â
Since Central Authorities are essential to the operation of inter-country
adoption under the Hague Convention regime, it is clear
that the absence of a
duly incorporated Central Authority in South Africa leaves a major gap.
[59]
  The embryonic interim Central
Authority established by the Director-General does not have the legal or
structural capacity to
fill the void effectively, nor can the current working
agreements established between South Africa and some other countries completely

fill the lacuna.
The treatment of subsidiarity by
the Supreme Court of Appeal
[54]
It is against the above background that I now
turn to answer the question raised by the assertion in the majority judgment in
the
Supreme Court of Appeal that the principle of subsidiarity acted as an
additional insurmountable bar to the granting by the High
Court of an order of
sole custody and sole guardianship in favour of the applicants.  In my view,
the proposition was stated in
terms that were too bald.  Like other questions
it was a matter to be decided in all the circumstances by the Children’s Court.
[55]
Child law is an area that abhors maximalist
legal propositions that preclude or diminish the possibilities of looking at
and evaluating
the specific circumstances of the case.  The starting-off point
and overall guiding principle must always be that there are powerful

considerations favouring adopted children growing up in the country and
community of their birth.  At the same time the subsidiarity
principle itself
must be seen as subsidiary to the paramountcy principle.  This means that each
child must be looked at as an
individual, not as an abstraction.  It also means
that unduly rigid adherence to technical matters such as who bears the onus of

proof, should play a relatively diminished role; the courts are essentially
guarding the best interests of a child, not simply
settling a dispute between
litigants.  In this context a particularly important role will be given to the
involvement of public
mechanisms created by the law to deal with inter-country
adoption.
[60]
[56]
In light of the above, I accordingly hold that
the Supreme Court of Appeal was basically correct in deciding that even at that
late
stage the matter should have been pursued in the Children’s Court.  Yet it
should not simply have dismissed the appeal, leaving
Baby R in a legal
limbo.  Rather, in taking account of the new situation created by her being
much older, the Supreme Court
of Appeal should pro-actively itself have made an
order, similar to the one issued in this Court, referring the matter to the
Children’s
Court for speedy resolution.  This would have enabled the question
of subsidiarity to be looked at not in an isolated way by the
Supreme Court of
Appeal, but by the Children’s Court in the overall context of determining where
the best interests of Baby R
lay.
[61]
[57]
Before concluding this judgment it is necessary
to give the reasons which led this Court to make the agreement between the parties

an order of court.
Reasons for making the agreement
between the parties an order of court
[58]
The fact that the applicants, the Department and
the curatrix had reached accord on how the interests of Baby R should best

be served, could not in itself be decisive as to whether the agreement should
be made an order of court.  To accede to the request
of the protagonists would
clearly have been in keeping with growing recognition worldwide “of
‘settlement’ as an approved,
privileged objective of civil justice” and that
“courts have come to present themselves not just as agencies offering judgment

but also as sponsors of negotiated agreement”.
[62]
Â
Yet, as
Mokgoro J pointed out
in the context of confirmation proceedings in this Court:
“An offer to settle the dispute made by one
litigant to the other, even if accepted, cannot cure the ensuing legal
uncertainty
or dispose of the confirmation proceedings.  Even if the applicants
had accepted the offer it would have settled the dispute only
between these
litigants.  The impact of the settlement would have been too limited and would
not resolve the unconstitutionality
of the impugned provisions and the impact
that they have on the broader group of permanent residents who qualify in all
other respects
for social grants.  An important purpose of confirmation
proceedings is to ensure legal certainty.  If parties were permitted
to reach
agreements that would remove this Court’s power to hear confirmation
proceedings in relation to an order of invalidity,
that purpose would be
defeated.”
[63]
Â
(Reference omitted.)
And, as Owen Fiss observed more
generally, the job of the courts “is not to maximize the ends of private
parties, nor simply to
secure the peace, but to explicate and give force to the
values embodied in authoritative texts such as the Constitution and statutes:

to interpret those values and to bring reality into accord with them.  This
duty is not discharged when the parties settle.”
[64]
[59]
In this respect this Court had to bear in mind
that inter-country adoption has a strong public as well as a private
dimension.Â
Both the sending and the receiving States have an obligation to
establish appropriate regulatory machinery to minimise the possibilities
of
abuse.  It is not simply the risk of trafficking in children for nefarious
purposes, or developing a trade in babies, that
needs to be guarded against.Â
The dignity of the sending country can be affected if it appears that it is
failing to find appropriate
resources to look after its children.  Courts need
at all times to be sensitive to these matters.  Thus, while giving due weight

to the fact that the parties had come to an agreement, the Court had to ensure
that its terms were neither against Baby R’s
best interests
[65]
nor in broad terms likely to
be incompatible with the country’s international obligations.
[60]
It would, of course, not have been appropriate
for this Court itself to have attempted to pre-judge in any way whether the
applicants
would be suitable adoptive parents for Baby R.  This was a
matter pre-eminently to be left to the Children’s Court.  Yet
a limited but
important responsibility fell to the Court, namely, to ensure that it was in
Baby R’s best interests to facilitate
an expedited hearing in the
Children’s Court, while satisfying itself that there was nothing on the face of
the agreement which
appeared to militate against her best interests.
[66]
[61]
The report of the curatrix was particularly
helpful in regard to establishing the ripeness of the matter for an expedited
hearing.
[67]
Â
On the correct basis
[68]
that it was Baby R’s current circumstances that needed to be considered,
and not her hypothetical position had the matter
followed a different course,
she pointed out that Baby R was now almost three years old and at a
particularly significant
stage in her emotional, cultural and ethical
development, and her ability to adapt to change.
[69]
  A speedy resolution was
imperative and a considerable body of reliable information had been gathered
for use by the Children’s
Court.
[62]
We were satisfied, then, that the terms of the
agreement were calculated to serve Baby R’s best interests.  Safeguards
would
be in place.  The Department had indicated that it had no objection to
the adoption on the ground of subsidiarity or otherwise,
and would facilitate
the administrative process.  Finally, the curatrix, whose diligence and
sensitivity had been of great assistance
to the Court — and for whose assistance
the Court is grateful — would continue to act on behalf of Baby R in the
Children’s
Court proceedings.  In the result, it would not be the High Court,
nor the Supreme Court of Appeal, nor the Constitutional Court,
but the
Children’s Court that would have the last word.
[70]
Order
[63]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is set
aside and replaced by the consent order set out in paragraph 17 of this
judgment.
4.
No costs order is made.
Langa CJ, Moseneke DCJ, Madala J,
Mpati AJ, Ngcobo J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J
concur in the judgment
of Sachs J.
For the Applicants:                                                    Advocate

JJ Gauntlett SC and Advocate A Annandale instructed by Wybrow Oliver Attorneys.
For the Amicus Curiae:                                            Advocate
AM Skelton
instructed by the Centre for Child Law.
For the Intervening Party:                                         Advocate
S Budlender and
Advocate M du Plessis instructed by The State Attorney, Pretoria.
Curatrix ad Litem:                                                     Advocate

M Feinstein.
*
On 27 August 2007 this Court ordered that the identity of the
applicants, the first and second respondent and the child in this
matter may
not be revealed.
[1]
The judgment was reported as [
AD and Another v DW and Others
]
2006 (6) SA 51 (W).
[2]
Act 74 of 1983.
[3]
The judgment was reported as [
AD and Another v DW and Others
]
2007 (5) SA 184 (SCA).
[4]
Act 38 of 2005.
[5]
In
Du Toit and Another v Minister of Welfare and Population
Development and Others (Lesbian and Gay Equality Project as
Amicus Curiae
)
[2002] ZACC 20
;
2003 (2) SA
198
(CC);
2002 (10) BCLR 1006
(CC) at para 3 it was
stated:
“In
matters where the interests of children are at stake, it is important that their
interests are fully aired before the Court
so as to avoid substantial injustice
to them and possibly others.  Where there is a risk of injustice, a court is
obliged to appoint
a curator to represent the interests of children.  This
obligation flows from the provisions of s 28(1)(h) of the Constitution
which
provides that:
‘Every child has the right—
. . .
(h)           to have a legal practitioner assigned to the child by
the state, and at state expense, in civil proceedings
affecting the child, if
substantial injustice would otherwise result.’”  (Footnote omitted.)
[6]
Section 28(2) reads: “A child’s best interests are of
paramount importance in every matter concerning the child.”Â
The
applicants also relied on section 39(1)(b) of the Constitution which reads:
“When interpreting the Bill of Rights, a court,
tribunal or forum must consider
international law”.
[7]
The report, filed seven court days before the hearing, was the
product of interviews with various stakeholders, including senior
officials in
the Department of Social Development.
[8]
The only exceptions allowed were an application made
by a
married person whose spouse was the child’s biological parent
and
an
application made by an applicant who possessed the necessary residential
qualifications to obtain a certificate of naturalisation
and had applied for
such a certificate
.
[9]
Minister of Welfare and Population Development v Fitzpatrick and
Others
[2000] ZACC 6
;
2000 (3) SA 422
(CC); 2000 (7) BCLR 713 (CC).  In that
case
British citizens permanently resident in South Africa, who expected to be transferred to the United States of America, wished to adopt
a
South African-born child, Baby K.  To make this possible they applied to
the Cape High Court for an order declaring section 18(4)(f)
of the Child
Care Act constitutionally invalid.  The High Court granted the order, but
suspended it for two years to allow Parliament
to correct the defect.  The
order of invalidity was then referred to this Court for confirmation, in terms
of sections 167(5)
and 172(2)(a) of the Constitution.  Writing for a
unanimous Court, Goldstone J held that although the substance of the “best

interests” principle had not been given exhaustive content in South African,
foreign or international jurisprudence, it was necessary
that the standard be
flexible because individual circumstances determined which factors ensured the
best interests of a particular
child.  Since in certain circumstances the best
interests of a South African child could well be served by granting an order of

adoption in favour of non-nationals, the provision was unconstitutional.  He
therefore confirmed the order of invalidity.
[10]
The declaration of invalidity accordingly had immediate effect,
and, following the normal procedure for adoption in the Children’s
Court,
within a month Baby K and the Fitzpatricks became the first non-nationals
to benefit.
[11]
In her affidavit the applicants’ attorney stated that during the
course of the litigation in the High Court she contacted the
Johannesburg
Commissioner of Child Welfare and was informed that the Johannesburg Children’s
Court had a policy not to allow
adoptions to citizens of the United States unless the interim Central Authority authorised it to do so.  This was confirmed by a

senior official in the Department designated to act as interim Central Authority,
who indicated that since no working agreement
between South Africa and the United States existed, it was not possible for citizens of the United States to adopt a South African
child.
[12]
Not only the applicants’ attorneys, but also academic commentary
has interpreted the departmental policy as barring inter-country
adoptions to
States with which no working agreement has been established.  See Louw
“Intercountry Adoptions in South Africa”
(2006)
De Jure
503 at 511.
[13]
This, he states, will only be the case in terms of the Children’s
Act once it comes into force.  He points out that when that
happens section
261(5)(e) will provide that the Children’s Court must be satisfied that the
Central Authority has consented to
the specific inter-country adoption before
granting the order.
[14]
It did not make the appointment of a curator ad litem redundant, as
the High Court felt it would.  A curator should have been appointed
to
represent the interests of Baby R.  An independent curator would have had
a degree of access to the parties and the child
that the amicus could not have
had.  The curator’s task, moreover, would have been to investigate and advise
on the specific
interests of the child, and not simply or even primarily to
deal generally with the processes and principles involved.
[15]
The chronology of the matter has been as follows.  On 11 November
2004 Baby R was born, three days thereafter she was found
abandoned and
another two days after that the Children’s Court ordered her placement in
foster care with the first and second
respondents.  On 14 October 2005 the
application in the High Court for the sole custody and sole guardianship order
was brought,
and judgment was handed down on 21 April 2006.  On 9 May 2007
the Supreme Court of Appeal heard the matter and delivered judgment
on 1 June
2007.  The application for leave to appeal to this Court was brought on 22 June
2007.  On 18 September 2007 the matter
was heard, and the consent order was
made the next day.
[16]
Nor is this possibility excluded by the Hague Convention (see below
paras 44-51), which in fact provides little guidance on this
issue.  It leaves
it to national legislators to decide on the identity or nature of the forum or
institution tasked with approving
the adoption, hence it may be a higher or lower
court or even an administrative body.  The Convention similarly does not
express
itself on whether the adoption should be finalised in either the
sending or the receiving State.  See
Duncan
“The Hague
Convention on the Protection of Children and Co-Operation in Respect of
Intercountry Adoption 1993: Some Issues of
Special Relevance to Sending
Countries” in Jaffe (ed)
Intercountry Adoptions: Laws and Perspectives of
“Sending” Countries
(Martinus Nijhoff Publishers, Dordrecht 1995)
at 222-3.
[17]
Under section 7(2) of the Child Care Act the Minister of Justice
and Constitutional Development may appoint Children’s Court assistants
to support
that court in performing its functions.  Under section 7(3) the Children’s
Court may designate any competent officer
in the Public Service to act as a
Children’s Court assistant.  Under section 42(3) of the Children’s Act the
Minister may
appoint a Magistrate or an additional Magistrate as a dedicated
presiding officer of the Children’s Court.
[18]
As
L’Heureux-Dubé pointed out in
Canada Ltée (Spraytech, Société d’arrosage) and
Another v Town of Hudson and Others
[2001]
2 SCR 241
at 249,
the
principle
of
subsidiarity is used i
n constitutional law
generally
to denote
the notion that “law-making and implementation are often best achieved at a
level of government that is not only effective,
but also closest to the
citizens affected”.  In the context of children’s rights, however, it has a
specialised meaning.Â
Unfortunately for our purposes very little
guidance on the topic exists in the form of foreign and international
jurisprudence.Â
We were not referred to any case law directly in point.  See,
however,
Pini and Others v Romania
(2005) 40 EHRR 13
at para O-IV9 and
J
(AL) v M (SJ); ALJ v SJM and Others
(1994)
98 BCLR (2d) 237 at paras 82-104 where
respectively the European Court of Human Rights and the British Columbian
Supreme Court marginally
touched upon this principle.
[19]
Adopted by the General Assembly on 3 December 1986.
[20]
The CRC (ratified by South Africa on 16 July 1995) and the African
Charter on the Rights and Welfare of the Child (acceded to by
South Africa on 7
January 2000) require States parties to give effect to the principles of the
best interests of the child,
subsidiarity and non-discrimination, and to
establish safeguards to prevent child trafficking and comity between States.Â
They
also contain provisions recognising and protecting a child’s right to a
name, nationality and identity.  Article 21(b) of the
CRC 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 recognise that inter-country adoption may 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”.
Article 24(b) of the African Charter states:
“States Parties
which recognize the system of adoption shall ensure that the best interests of
the child shall be the paramount
consideration and they shall 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”.  (Emphasis
added.)
[21]
Volkman “Introduction: New Geographies of Kinship”
in
Volkman
(ed)
Cultures of Transnational Adoption
(2005) at 4 quoted by McKinney “International Adoption and the Hague Convention: Does Implementation of the
Convention Protect
the Best Interests of Children?” (2007) 6
Whittier
Journal of Child and Family Advocacy
361 at 366.  See too Saclier
“Children and Adoption: Which Rights and Whose?” in UNICEF “Intercountry
Adoption” 4
Innocenti Digest
at 12
:
“At
present, speaking of children’s rights when talking about inter-country
adoption forces us to confront a highly uncomfortable
situation.  In the name
of the child, everyone raises his or her banner and simplifies the issues to
the extreme, whereas, in
this field, the rights of the children concerned are
not always so clear-cut and obvious.  The passions the topic unleashes, in
both
countries of origin and receiving countries, distort information, confuse
people’s thinking and make action difficult and
risky.  Often there is a
tendency to consider only one aspect of the problem, filtered through the prism
of the side of the planet
on which one lives.  Everyone defends his or her
personal convictions or interests, forgetting that at stake are the lives of
human beings, and young and particularly vulnerable ones at that.”
[22]
Liu
“International Adoptions: An Overview” (1994) 8
Temple
International and Comparative Law Journal
187 at 191;
McKinney
above n 21 at 371
.
[23]
UNICEF above n 21 at
2.  Already by mid-1990
the number of children adopted from developing States by American,
Australian, Canadian and European nationals has been estimated
at 20 000
per year, and this number has grown consistently ever since.  Wardle
“Parentlessness: Adoption Problems, Paradigms,
Policies, and Parameters” (2005)
4
Whittier
Journal of Child and Family Advocacy
323 at 343.
[24]
Van Bueren
The International Law on the Rights of the Child
(Martinus
Nijhoff Publishers, London 1998)
at 95.
[25]
Id at 96; UNICEF above n 21 at
2-3;
Jaffe
“Cooperative Global Adoptions: A New East-West Partnership” in Jaffe (ed)
Intercountry
Adoptions: Laws and Perspectives of “Sending” Countries
(Martinus Nijhoff
Publishers, Dordrecht 1995) at 1-2.
[26]
Van Bueren above n 24 at
96.
[27]
These are
States from which children are adopted by
foreigners, typically developing countries.  T
he Hague
Convention refers to these countries as “States of origin”.
[28]
See Marx “Whose Best Interests Does it Really Serve? A Critical
Examination of Romania’s Recent Self-Serving International Adoption
Policies”
(2007) 21
Emory International Law Review
373
at 410 citing Cambodia, Thailand and Ukraine as examples.  See also Jaffe above n 25 at 8 stating:
“Some [of
the sending countries] do not relish foreign adoptions as an alternative [to
parental or institutional care], and are
fearful of exploitation and illegal
traffic in their native children.  These countries have very bad memories of
exploitation
by foreign, western countries, including selling of children, and
they are rightly concerned about ending these practices.  Yet
their concern for
abandoned and homeless children had enabled them, over the past decades, to work
with foreign, professional adoption
agencies which operate approved branches in
their (foreign) countries in order thus to find acceptable adoptive families
abroad,
and adhere to the laws of both the local and foreign countries.”
[29]
For example Albania, Bolivia, El Salvador, Guatemala, Paraguay, Peru and Romania.  See McKinney above n 21 at 394; UNICEF
above n 21
at 4.
[30]
As the Director-General points out in his founding affidavit, a
most recent example is the moratorium on inter-country adoptions
by South East
Asian countries in the aftermath of the Asian tsunami in 2004.  Despite the
acute need that the tsunami had presented,
affected countries took the view
that the risk of abuse was so great that they had to halt all inter-country
adoptions until they
could be sure that the best interests of the children
would be secured in such adoption processes.
[31]
Van Bueren above n 24 at 96.
[32]
Freundlich “Window to the World: Families Without Borders -
I” (1999)
UN Chronicle
vol 36 no 2 at 88-9 read in Sargent “Suspended
Animation: The Implementation of The Hague Convention on Intercountry Adoption

in the United States and Romania”
(2003-2004) 10
Texas Wesleyan Law Review
351
at 361.
[33]
Jaffe above n 25 at 8.  This is in line with the current
understanding of adoption as a means “providing a child with a family,
not a
family with a child”.Â
See for example
Fretté v France
[2002] ECHR 156
;
(2004) 38 EHRR 21
at para 42.
[34]
It has been contended that the position the subsidiarity principle
assumes is an in itself subsidiary one — one subservient to
the best interests
of the child.  See Nicholson “The Hague Convention on the Protection of
Children and Co-operation in Respect
of Inter-country Adoption 1993” in Davel
(ed)
Introduction to Child Law in South Africa
(Juta & Co Ltd,
Lansdowne 2000) at 248.
[35]
As often happens with the creation of multi-lateral treaties, the
very process of elaboration of the Convention was to foster international

goodwill through widespread participation and give-and-take of views.  Building
on the experience gained during the 1970s and 1980s,
more than 60 States
representing both sending and receiving countries and approximately 10 international
NGOs co-operated extensively
to establish a specialist convention to regulate
inter-country adoptions comprehensively, if not exhaustively.  UNICEF above n

21 at
2 and 5.
[36]
Preamble to the Hague Convention.
[37]
Parra-Aranguren,
Explanatory Report on the
Convention on Protection of Children and Co-operation in Respect of
Intercountry Adoption
(1994)
http://hcch.e-vision.nl/upload/expl33e.pdf, accessed on 1 December 2007, at
para 7.
[38]
See
Nicholson above
n 34 at 248; UNICEF above n 21 at
5
.
[39]
For example, it requires that a Contracting State designate a
Central Authority tasked with fulfilling the duties imposed by the
Convention,
and prescribes at what moment a child becomes adoptable and who is eligible to
adopt.  It establishes a regime of
mutual aid between States ensuring that an
adoption only takes place through the co-operation of the receiving State,
whose role
it is to ensure that certain requirements have been met by the
prospective adoptive parents, and obliges receiving States to afford
a minimum
standard of local involvement by following up on the well-being of the child
after the adoption.  See articles 4, 5,
6, 14, 15, 17 and 20.  Provision is
also made subject to safeguards for the accreditation by Contracting States of
non-governmental
organisations to assist in achieving the objects of the
Convention.  See articles 8-11.Â
Article 6 establishes Central Authorities,
whose duties, from a sending-country perspective, includes: establishing the
adoptability
of a child; matching the child with the adoptive parents; deciding
whether to place the child with the prospective adoptive parents;
procuring an
adoption in the country of origin, if one is to be procured before transferring
the child to the receiving country;
transferring the child to the receiving
State; and, if it did not procure an adoption in the country of origin,
recognising one
procured in the receiving country.  Article 7 further provides
that it is the responsibility of Central Authorities of States parties
to see
to the application of the Convention and ensure smooth co-operation between
sending and receiving States.  See further
Duncan
above n 16 at 227.
[40]
These extensive regulations impart onerous obligations on sending
States, which come at a time when the number of requests from
receiving States
is relatively high.  Accordingly, successful implementation of the now
pervasive child-centred approach to inter-country
adoption is a high
aspiration, especially since seeking suitable parents for adoptable children
requires a level of regulation
which numerous States are still striving to
achieve.
[41]
See above n 20.
[42]
See Bhabha “Moving Babies: Globalization, Markets, and
Transnational Adoption” (2004) 28
Fletcher Forum of World Affairs
181 at
192-3.  See also Wallace “International adoption: The most logical solution to
the disparity between the numbers of orphaned
and abandoned children in some
countries and families and individuals wishing to adopt in others?” (2003) 20
Arizona
Journal of International and Comparative Law
689 at 702.
[43]
Marx above n 28 at 379.
[44]
Id at 403; Wallace above n 42 at 702.  In similar vein, Duncan above n 16 at 221-2 states:
“The
principle of subsidiarity, while of central importance, should not be applied
in an inflexible manner.  There will sometimes
occur cases where, in the
interests of the child, a placement with parents from abroad may be more
appropriate than with prospective
adopters in the country where the child is
resident, as for example where the child’s roots are in fact in that foreign
country.Â
Also it would be unfortunate if the principle were operated in a way
which led to excessive delay in the placement of a child, as
for example by the
adoption of rigid administrative practices such as the imposition of quotas for
foreign adoptions on placing
agencies.  It is important that the idea of
subsidiarity be always interpreted and applied in the context of the ‘best
interests’
principle.”  (Footnote omitted.)
The International Social Service
“Intercountry Adoption: The Principle of Subsidiarity”
Fact sheet No 36
(April, 2007) has pointed out that every matter—
“should
be studied individually, so as to devise a permanency plan, in line with the
principle of the child’s best interests.Â
Only a careful examination of each
case, carried out preferably by a group of professionals with varied training .
. . should make
it possible to take the appropriate course of action.”
Furthermore, sociological studies
have shown that inter-country adoptions are largely successful and that
children who are adopted
to foreign countries “remain proud of their ethnic,
racial and national origins, happy in their adoptive families and countries
—
and proud of themselves” and that they adjust well to their new circumstances.Â
Liu above n 22 at 193 fn 60 referring to
a study conducted by Prof Rita James
Simon.  See also Strong “Children’s Rights in Intercountry Adoption: Towards a
New Goal”
(1995) 13
Boston
University International Law Journal
163
at 172.
[45]
The intricacies further go to show that it is unrealistically
simplistic to regard the interests of a child as being served better
by being
adopted by nationals of a materially rich country.  See UNICEF above n 21 at
6.
[46]
Fitzpatrick
above n 9 at para 19.  For the importance
generally of the paramountcy principle in our law, see
M v The State
[2007]
ZACC 18
, 26 September 2007, as yet unreported.
[47]
Article 3 of the CRC reads “the best interests of the child shall
be
a
primary consideration” (emphasis added) and article 4 of the
African Charter provides that “the best interests of the child
shall be the
primary
consideration” (emphasis added).  However, both these conventions (the CRC in
article 21 and the African Charter in article
24) provide that in the case of
adoption the best interests of the child shall be “the” paramount consideration.Â
See above
n 20.  Clearly a higher status is attributed to the best interests
principle in the sphere of adoption than in relation to other
matters
concerning the child.
[48]
Duncan above n 16
at 221.  Duncan adds, however, that it is for the State of origin to determine what amounts to
satisfactory prospects of placement
in that country, and what form due
consideration of alternative placement options must take.
[49]
M
above n 46 at para 24.
[50]
See International Social Service above n 44.
[51]
Duncan
above n 16 at 222.
[52]
UNICEF above n 21 at
5.Â
Certainly the mere
fact that some parts of the world are materially richer than others should not
be seen as in itself justifying
the transport of children to those countries.Â
At the same time one has to take account of the fact that war, famine, natural
disasters and endemic diseases frequently place unbearable burdens on countries
with scant resources.  Each case has to be looked
at in the light of its own
particular circumstances.  To achieve a proper balance of all the
considerations involved requires
a maturity of vision on the part of all of
those involved, as well as the creation of specialised regulatory machinery.Â
Absolutist
positions and mutual recriminations can only undermine the very
principle at stake, namely, ensuring that the best interests of
the child are
respected.
[53]
Jaffe above n 25 at 9.
[54]
The Department indicated in its founding affidavit that following
on the adoption of Baby K, a total of 1 362 further inter-country

adoptions have taken place to date, 54 of which were to the United States of
America, which is the country responsible for receiving
by far the largest
number of children through inter-country adoption.  The total of 1 362 comprise
28 inter-country adoptions
in the year 2000; 73 in 2001; 159 in 2002; 210 in
2003; 239 in 2004; 248 in 2005; 256 in 2006; and 150 in 2007 up to 16
August
2007.  Of these adoptions 292 were to the Netherlands; 274 to
Sweden; 208 to Germany; 159 to Denmark; 125 to Finland; 65 to
Belgium; 54 to
the United States of America; 50 to Austria; 43 to Norway; 42 to Luxembourg;
and 23 to Canada.  A small number
of inter-country adoptions have also been
concluded with a range of other countries including Botswana, Kenya, Mauritius, Namibia,
Nigeria, Tanzania, the United Kingdom and Zimbabwe.
[55]
Effectively from 1 December 2003.
[56]
The requirement that each country designate a Central Authority to
deal with inter-country adoptions is fundamental to the Hague
Convention
regime.  Because the relevant Chapter of the Children’s Act has yet to come
into force, no Central Authority has
been established for South Africa.  Nevertheless, pursuant to the pressure placed on South Africa by various foreign
countries
desirous of fostering a partnership, the Department set up an interim
Central Authority in 2003.  This was to counter serious concerns
over the
adequacy of safeguards protecting the best interests of the children involved,
and of compliance with the principle of
subsidiarity.
[57]
Section 315 of the Children’s Act provides for a progressive
implementation of the Act, with different provisions of the Act coming
into
force on a date indicated by the President by proclamation in the Government
Gazette.  By Proclamation 13 in Government Gazette
30030 on 29 June 2007 the
President established 1 July 2007 as the date on which sections
1
-
11
,
13
-
21
,
27
,
30
,
31
,
35
-
40
,
130
-
134
,
305(1)(b)
,
305(1)(c)
,
305(3)
-
(7)
,
307
-
311
,
313
-
315
,
and the second, third, fifth, seventh and ninth items of
Schedule 4
to the Act become operative.  The remainder of the Act, including the parts
relevant to adoption and sole custody and sole guardianship
orders, has not yet
entered into operation.  We were told from the bar that it was expected to do
so during 2008.
[58]
In addition, the Department has assisted local adoption
organisations to conclude working agreements for inter-country adoptions
with
organisations in various countries.  Working agreements have thus far been
concluded with organisations in Belgium, Canada,
Denmark, Finland, Germany, Luxembourg, the Netherlands, Norway, Sweden, Botswana and India.  All of these countries, except Botswana,
are States parties to the Hague Convention.  With
the exception of India, in respect of all of these countries, South Africa is
the sending country.  Inter-country adoptions have also been concluded with other
countries that are not yet party to the Hague
Convention, for example Namibia and the United States of America.
[59]
Although in papers before this Court the Department expressly
disavowed having ever placed a moratorium on inter-country adoptions
to the
United States of America, it pointed out that it does not generally encourage
inter-country adoptions to that country, because
it is not a party to the Hague
Convention and there is no working agreement in place between the United States
and South Africa.Â
The United States signed the Hague Convention on 31 March
1994 and passed implementing legislation, the Intercountry Adoption Act,
which
was signed into law on 6 October 2000.  However, the final rules governing the
accreditation of adoption agencies were only
issued on 15 February 2006, hence
the Act was expected to come into force during this year.  The Department
claims that these
factors make it more difficult to ensure safeguards against
the risks that inter-country adoptions hold.  The Department’s attitude
toward
inter-country adoptions to the United States is that such adoptions can in fact
take place via the ordinary mechanism of
the Children’s Court, but that they
should only take place with departmental oversight and only in exceptional
circumstances.Â
The examples are where the child has special needs, where the
child is particularly hard to place within South Africa, where there
is a
long-standing pre-existing relationship between the adoptive parents and the
child, or where the child is related to the adoptive
parents.
[60]
This is an area where religious and other civil society bodies have
traditionally been active, and their contribution can also be
invaluable.
[61]
Furthermore, the Supreme Court of Appeal should have seen to it
that a curator ad litem was appointed to ensure that the specific
interests of
Baby R were fully protected while the broad issues of principle were being
considered.
[62]
Roberts and Palmer
Dispute Processes: ADR and the Primary Forms
of Decision-Making
(Cambridge University Press, Cambridge 2005) at 243.
[63]
Khosa and Others v Minister of Social Development and Others;
Mahlaule and Others v Minister of Social Development and Others
[2004] ZACC 11
;
2004 (6) SA
505
(CC);
2004 (6) BCLR 569
(CC) at para 35.
[64]
Fiss “Against Settlement”
(1984)
Yale Law Journal
1073
at
1085.
[65]
See
Girdwood v Girdwood
1995 (4) SA 698
(C) at 708J-709A:
“As upper
guardian of all dependent and minor children this Court has an inalienable
right and authority to establish what is
in the best interests of children and
to make corresponding orders to ensure that such interests are effectively
served and safeguarded.Â
No agreement between the parties can encroach on this
authority.”
This statement was quoted with
approval in
Du Toit
above n 5 at para 36 fn 37.
[66]
See
Fitzpatrick
above n 9 at para 6.
[67]
Apart from the interviews with various senior officials in the
Department, the report draws on direct observations of Baby R
and
telephone interviews with the applicants.  It pointed out that the applicants
had a large family comparable to Baby R’s
foster family; they were clearly
concerned with imbuing in her the respect they themselves had for what they
regarded as their
African roots; and they shared the religion, language and
culture of her foster parents.  Three comprehensive reports prepared
by
experienced social workers had supported the view that they were an appropriate
match for Baby R, and recommended permanent
placement with them.Â
Furthermore, they had been screened by an accredited agency in their State of
residence, and the affidavit
of Ms Law, a practising attorney in the State of
Virginia where Baby R was to be adopted, had established that appropriate
after-placement
monitoring services would be carried out by a State-accredited
adoption agency.
[68]
Fraser v Naude and Others
1999 (1) SA 1
(CC);
1998 (11) BCLR
1357
(CC)
at paras 8-10
.Â
See also
Pini
above n 18 at
para O-IV8;
Fretté
above n 33
.
[69]
The curatrix had produced substantive material to enable the
Children’s Court to deal swiftly with the matter.  She had gained
a very
favourable impression of the applicants.  Her report indicated that Baby R
already spoke with a distinct American
accent.  The curatrix had added that the
applicants had started making preparations for Baby R’s arrival and had
been devastated
when the application in the High Court had been refused.Â
Subsequently they had been in contact with Baby R through frequent

telephone conversations.  As in
Fitzpatrick
, the presence of the bond
established between the applicants and Baby R weighed heavily in favour of
their being considered
worthy as adoptive parents.  The applicants were
paradoxically a closer match to her in terms of culture and religion than a
local
family would have been.  The report by the curatrix had also established
that the reliance placed by the Department on alternative
permanent family
placement in South Africa had been somewhat misplaced.  As the amicus pointed
out, however, child-care policy
generally discourages any pre-adoption bonding,
which could be used as a device to favour certain would-be adoptive parents,
presenting
child-care practitioners with a fait accompli.  The circumstances in
the present matter, however, were rather special.
[70]
On 11 October 2007
The Cape Times
reported the decision of
the Children’s Court as follows:
“There
was only one pair of dry eyes in the court when it granted the adoption of
Baby R by the United States couple who
had fought long and hard to make
her part of their family — and they were the toddler’s. . . .  The 25-minute hearing
on Wednesday
marked the end of a two-year legal battle in which the African-American
couple sought to secure guardianship of Baby R so they
could adopt her in
the US.”