Opinionista Robyn Wolfson Vorster 3 June 2016

Fearing the foreigner: When child protection and institutionalised xenophobia collide

Adoption, like all child protection initiatives, is predicated on the principle of “the best interests of the child”. Except when it isn’t. In some significant matters, government agenda has overridden this tenet, at times with disastrous and even tragic consequences.

One of the areas where this is most evident is “foreigners”: foreigners resident in South Africa who want to adopt, and children born in South Africa to foreign parents. New and increasingly aggressive policy regarding foreigners may result in large numbers of children being made unadoptable, and possibly stateless, others left in limbo without a name and nationality, and others exposed to significant psychological and physical harm. So why is the government pursuing this approach, which according to some amounts to institutionalised xenophobia, and what will happen to the large numbers of children caught in the cross-hairs?

Kate* sits across from me, twists the piece of paper in her hand over and over and then slams it down on the table with exasperation. For an adoptive parent like myself, seeing an adoption order treated this way is shocking. I treasure mine, and years later am still moved by the profundity of the words: “Your child is now for all purposes regarded as your child, as if born to you…”. Who could fail to be touched by that? The answer, sadly, is an adoptive mother of a child deemed by Home Affairs to be a foreigner. Quite simply put, it is hard to value a document that Home Affairs will not honour.

Her anger seems justified. After all, this family have been scrupulous in their adoption process. They were properly vetted, screened and approved, their son’s biological mom signed consent at court for him to be adopted. He was adopted in the country in which he was habitually resident and as reflected in the adoption order she is holding, both the court and the Department of Social Development endorsed the adoption. So hearing from the Department of Home Affairs that the adoption should never have been granted and that his name change and unabridged birth certificate application would take about a year (if it happened at all) came as a bolt out of the blue.

The problem, it seems, is a simple one, Kate’s son Jacob* was born to a mom from Lesotho who was residing and working in South Africa at the time of his birth and so, as the child of a foreigner, he was issued a handwritten birth certificate without an ID number. And even though, through his adoption to South African parents, Jacob is now legally a South African citizen, this lack of ID number has resulted in Home Affairs continuing to deem him “foreign” — hence, the reluctance to change his name or issue a new unabridged birth certificate reflecting his adoptive parent’s details. It is a shockingly common situation, so much so that Home Affairs has already been subjected to a number of lawsuits.

In defence of Home Affairs, the mandate it has been given of updating the population register (essential if we are to adequately resource and apportion said resources across the country), is a difficult one, and these children are statistically problematic. However, its approach is also somewhat disingenuous. Legal experts question why home affairs issues a birth certificate for these children if its goal is “safeguarding citizenship”, and it doesn’t intend on adding them to the population register. If the objective is simply to note the birth so it can be ratified in the parent’s country of origin, surely that is what the document should state. But it doesn’t, even without an ID number, these are clearly birth certificates; and potentially useless ones at that. It is something that the department has finally recognised, and it is now becoming reluctant to even issue the handwritten versions, claiming to have no jurisdiction over the child – this despite the fact that our Constitution states that every child is entitled to a name and a nationality from birth, and the Children’s Act protects all minors within the country’s borders.

For this reason, Jacob may actually be one of the fortunate ones. It could take a while, but the issuing of his new unabridged birth certificate is somewhat inevitable (although Home Affairs seems to be endlessly willing to go to court to defend the assertion that these adoption orders are illegal, it doesn’t appear to win these cases). There is however huge concern about “foreign” children who are still to enter the system (either those not yet in child protection or those waiting to be placed with adoptive families). Pressure is now building to prevent these children from being adopted. It is perhaps why some courts have stopped granting adoption orders for children born to foreigners, and why courts in at least one area won’t allow foreign birth mothers to sign consent to place a child for adoption, stating that they don’t have jurisdiction over “foreign” children (even ones who have been habitually resident in South Africa since birth).

This was staggeringly illustrated last month when Joyce*, a married Zimbabwean woman, whose child was conceived through rape at the hands of a South African taxi driver, approached a local court to sign consent for her child to be adopted. Her application was denied. According to social workers, the implications could be tragic: without the option of adoption, women like Joyce may feel forced to abandon their children. And even if consent is signed, many social workers are now nervous about taking on cases involving “foreign” children, not just because of the time, effort and stress involved for adoptive parents to obtain documentation, but also because they cannot risk placing a child if the adoption order may not be granted – an outcome that would be devastating for the child and the adoptive parents.

No matter how sympathetic one might be to the dilemma faced by Home Affairs, its lack of a plan is worrying. Relying on children “returning” to their mother’s home nation is not a given, especially since many of the children have South African birth fathers, have lived their whole lives here, and have no ties to any other country. If birth moms relinquish their parental rights and adoption ceases to be an option, who will care for these children? The upshot will be that hundreds (potentially thousands) of children born in South Africa to foreigners will grow up in care and dependant on state resources (which seems ironic, given the reason why they were denied a proper birth certificate in the first place). Without a valid birth certificate or ID number, these children will be “stateless”, with no access to schooling or healthcare and critically, no nationality. Not only is this a government-facilitated human tragedy, but this approach is also diametrically opposed to UN recommendations that countries “allow children to gain the nationality of the country in which they were born if they would otherwise be stateless”. Best interests of the child, it seems, does not extend to those children unfortunate enough to be deemed foreign.

Nor does it apply to South African children who have a foreign adoptive parent. Across the globe, citizenship or permanent residency is a fairly standard criterion for a national adoption. It is however a standard that has not been enforced in South Africa; until now that is. According to Sue Krawitz of Impilo Child Protection Agency, the complication has arisen because the Children’s Act does not make permanent residency a criterion for being able to adopt in South Africa, it is only a requirement for being placed onto the Registry of Adoptive Children and Parents.

This may seem like semantics; after all, in terms of the adoption process, parents must be placed on the registry prior to being matched to a child. But it is an important distinction because adoptive parents sometimes have a prior relationship with the child. In those cases (and as it happens a myriad others), foreigners who had been in the country for five years or more have been adopting for years (even without permanent residency). But all of that changed in June 2015 with a Department of Social Development directive which effectively ended the practice.

The directive states that in the absence of permanent residency, all adoption cases must be referred to the South African Central Authority (the body responsible for executing The Hague Convention governing inter-country adoptions). The implication is that these adoptions are now being treated as inter-country adoptions or, if one spouse is a citizen or permanent resident and the other is not, as national adoptions with an inter-country element. It is a decision which has dramatically affected how, or if, these adoptions are processed.

In theory, the move may be well-intentioned, designed as it is to safeguard children who could end up leaving the country with their adoptive parents: facilitating aftercare services and providing the “Letter of No Objection” that adoptive parents need to relocate to another country with their child. Despite this, the execution of this new approach has been extremely problematic.

The biggest issue seems to be the length of time taken for Home Affairs to process a permanent residency application. The Home Affairs website does not commit to a time frame. However, it seems to take at least a year but could, more typically, be up to three years. The implication is that an adoption can now be delayed for significant time periods while the parent waits for permanent residency. In addition, there appears to be a lack of consideration given to adoptions already in process. The Central Authority undertook to deal with the transition on a case by case basis (which in itself is a deeply problematic approach for service providers trying to give advice), but magistrates in at least one circuit have apparently been instructed that they may not under any circumstances allow a foreigner without permanent residency to adopt, and personally, I am yet to find an adoption of this nature that has been granted since June 2015. It appears that the Central Authority has made few or no exceptions, not even when a child’s life is at stake, and this unwillingness or inability to prioritise the best interests of the child is deeply troubling.

Mpho’s* story is a case in point. Born into poverty, HIV+, suffering from TB and scabies, his birth mother (who could not afford nappies or formula) prop fed him diluted Coca-Cola (often his only sustenance for the day) and allowed him to soil himself. At the age of 19 months, he was diagnosed with end-stage malnutrition and his hair turned grey. At 21 months, he still couldn’t roll over or push himself up.

This was the point when his birth mother “went to the clinic” for the day and never came back, abandoning him into the care of a local pastor, Themba* and his wife Juliette*. The couple arranged for his care at a local Place of Safety and funded and facilitated his medical treatment while they applied for custody of him. But, to their dismay, despite Mpho’s extremely fragile health, they were told by the courts that they could not adopt him because Juliette was from the US.

According to Juliette, it was a shock, not only because she had been in the country since 2009 but because she had already adopted a South African child, as recently as 2014. But the family had fallen foul of what has amounted to a change in policy (their misfortune was to apply for the adoption in the very month that the directive was issued).

The implications have been dire. Although the court finally allowed Themba to foster Mpho (on his own) so he could remain in the family’s care, it was adamant that the child could not be adopted until such time as Juliette has permanent residency (she has already been waiting for more than eight months). And, until such time as it has been granted and the adoption order issued, he cannot be admitted onto the family’s medical aid (Juliette is the main member, and the company policy is that they will only add an adopted child with an adoption order).

For Mpho, the wait has been interminable. Now five, in the past year his birth mother’s neglect has led to his front teeth rotting – in the absence of medical aid, he had to wait more than four months for them to be removed – and in him developing phimosis, the only remedy for which is an emergency circumcision. Almost three months later, he has yet to have the operation, and the constant pain has undone months of his “parent’s” careful nurturing and left him emaciated and distraught. In the world of child protection, Mpho’s case is a tragedy.

Nor is his the only one; another serious concern is what will happen to children in foster care with parents who don’t have permanent residency. Some courts have also started to clamp down on “foreigners” fostering, leading to apprehension about whether foster care orders will be renewed when these foster parents apply (which they are required to do every two years). If they aren’t renewed, what will happen to the children involved, will they be removed from loving homes and placed in care?

Denise* is a foster parent facing this crisis. Her son, Christopher* who is now six, has been in foster care with her since the age of eight months. A foreign national on a temporary visa, she would have to return to her country of origin – without her son – in order to apply for permanent residency. But, since she is a single mom, Christopher would probably have to be placed in care while she was out of the country (again, she has been told that this could be up to three years). For now, she is hoping that the foster care order will continue to be renewed or that she may be allowed to adopt him so she doesn’t have to confront this potential heartache. But despite Christopher’s need for family, this is no longer a given.

Crucially, the application of this approach regarding “foreigners” and child protection is still in its infancy, but its progression seems to be inexorable. In the absence of any amendments, it will probably result in another decline in the adoption rate, and increasing cost to the country, as Home Affairs is forced into court to defend multiple lawsuits, and the Department of Social Development has to fund the care of “unadoptable foreigners”, as well as longer-term care for those waiting for adoptive families (and potentially, those removed from foster care).

But the overall impact will be on our children, those who will never be placed in families or lose the ones they have, those waiting for identities, those suffering loss until adoptions can be processed, and those ruled to be stateless and marginalised in every sphere of our society.

For one veteran social worker, it harkens back to an ugly chapter in our recent past. She remembers placing a baby on a desk at Home Affairs, loosening his nappy and watching while an official fastidiously used a ruler to move the child’s genitals this way and that in an attempt to guess his race. For her, the situations are not dissimilar. Once again, she is faced with being complicit with Home Affairs (and the Department of Social Development) in discriminating against children based on criteria outside of their control – in this case, implementing institutionalised xenophobic practices which may (probably will) affect their lives forever. In the best interests of the child? No, I think not. DM

* Not their real names, all names changed for fear of reprisal.

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