Opinionista Robyn Wolfson Vorster 18 February 2019

Adoption-related amendments to the Children’s Act: The arguments and the elephants in the room

In the short time since the media drew national attention to the proposed amendments to the Children’s Act and their impact on adoptions, the government has proffered numerous arguments about why and how the amendments were included. But how do these arguments stand up to scrutiny, and what isn’t being said? Unpacking them and exploring the elephants in the room like money, race and consent, reveals some interesting insights into the state of adoptions in South Africa.

When the news broke in the second week of January that the proposed third amendment to the Children’s Act contained three changes that would make charging fees for national and intercountry adoptions illegal, and effectively shut down adoptions in South Africa, it elicited an immediate response. The public and the media, along with the adoption community and the Department of Social Development (DSD) swung into action trying to explore the reasons behind the changes. But it was the department that went on the offensive, issuing press statements and speaking on multiple platforms trying to counter any negative perceptions about its approach to adoptions.

The debate has been insightful, uncovering several of the government’s adoption-related concerns, but it has also been useful to highlight those aspects of adoption that aren’t discussed. If, as some are arguing, access to adoptions is currently at its optimal and the government already minutely controls the adoption process, including placements and fees charged; and it will be more expensive and a further drain on already stretched resources if the government takes over adoptions, then the real reason for the proposed amendments lies elsewhere. Is the truth, as the Centre for Child Law has suggested, that government would like to eliminate adoptions but isn’t willing to be direct about its intentions? Either way, until we acknowledge the spectres of trafficking, race, colonialism and consent dogging adoptions, no amount of healthy debate around the issues raised will stop the proposed amendments from being passed.

While it may be inadequate to take the department’s justifications for the amendments at face value, it’s still the place to start. The department has claimed on various platforms that it negotiated the amendments with the adoption sector, that they are essential to make adoptions more accessible to the poor, that it isn’t preventing private adoption social workers and those in Child Protection Organisations (CPOs) from continuing to facilitate adoptions, but that it has adequate resources to perform all adoptions if necessary. It has also contended that existing social workers are charging exorbitant fees for adoptions and unethically placing children in adoptive families who have other familial options. So how do these arguments stand up to scrutiny?

Firstly, the government has consistently asserted that it consulted with interested parties about the amendments. But this is only partly true. It did consult with adoption practitioners about the amendments to the Children Act in July and August of 2018, and with the provinces in September. But, a cursory inspection of the documents from those sessions shows that the consultations did not include the three changes that affect the charging of fees, and who can participate in the adoption process (changes to sections 249, 250 and 259 of the Act). These proposed changes were not discussed prior to the publishing of the government gazette in October. The first consultation about them was on 21 November at the National Child Protection Forum, just a week prior to the closing of public comments. Community representatives who attended the forum describe how the amendments were read out by Dr Tebogo Mabe, Director of Adoptions and International Social Services at National DSD, at 3.50pm, 10 minutes before the end of the first day’s session. As they stared at him in astonishment, he closed the meeting. He then absented himself from day two’s proceedings when discussions continued.

But, while the consultation was clearly not transparent, what is true is that these amendments were hiding “in plain sight” in the government gazette for three weeks before the Child Protection Forum. When the adoption community was asked how they missed them, their response was disarming. They admitted that they should have been more vigilant, but they had no expectation of the amendments containing anything untoward. They certainly didn’t anticipate a government ambush, especially not related to fees. Not only had relationships between the different parties in the adoption community seemed co-operative prior to October, but the department’s Child Care and Protection Policy, which was only finalised in August 2018, contained a section both confirming and regulating adoption fees. Regardless of government arguments to the contrary, it is likely that these changes were deliberately concealed.

If so, how credible is the government’s assertion (the only justification for the amendments written into the Gazette), that its actions are warranted because the amendments will increase adoption access and finally allow poor people in rural areas to adopt? Child protection activists contend that it isn’t convincing, because, in terms of the Children’s Act, access to adoptions is currently at its zenith. Although the 2010 Children’s Act prohibited DSD social workers from performing adoptions, it was amended in January 2017 when the 2nd Amendment of the Children’s Act was ratified. So, despite what the spokesperson for Social Development Lumka Oliphant said in an interview with Uveka Rangappa on eNCA, DSD social workers have been legally permitted to perform adoptions for the last two years. What is true is that the department has not completed many adoptions since 2017, but not because of any legality issues, but because its social workers lacked the necessary specialisation to process them (either obtained through a post-graduate degree or three years of relevant experience).

However, the department now has 889 social workers trained to perform adoptions. The implication is that the poor can currently access a free adoption from the DSD, or a CPO accredited to do adoptions (who means test their applicants and charge fees according to the adoptive parent’s ability to pay), or even some private adoption social workers (if they are willing to provide a free adoption).

If access is already quite extensive, is it feasible that the amendments will increase it even further? This is unlikely. Firstly, despite Pauline Maaga, Acting DDG of Social Welfare stating in an interview with 702’s Joanne Joseph, that government isn’t prohibiting private social workers and social workers at CPOs from providing adoptions, it is simply stopping them from charging fees, the result will be the same, for the fairly obvious reason that no organisation can exist without some form of income.

The country’s 59 adoption social workers in private practice are not permitted to apply for a government subsidy. In the absence of fees, they will close down immediately.

The situation regarding the 93 designated and accredited CPOs providing adoptions is more nuanced. Some CPOs already receive government subsidies, but subsidies are per post and typically cover only a third to a half of a specialist social worker’s salary. Amounts also vary depending on the province, and on strategic priorities, which seldom include adoption. In the absence of fees and donations, CPOs will not be able to top up salaries to continue to pay their staff or meet operational expenses. Moreover, if adoption ceases to be a child protection priority in any province, there may be no subsidies. Even when subsidies are forthcoming, they are often paid erratically and late. The implication is that those organisations that receive subsidies are also unlikely to survive.

Secondly, the department has never asserted that it is hiring new social workers to complete adoptions. It wouldn’t make financial sense to do so, given tight welfare budgets, and the reality that the subsidy paid to CPOs to perform adoptions is on average R10,000 per month, versus a government social worker’s salary of about R25,000 per month. And although Dr Mabe claimed in an interview on PowerFM that the 889 social workers will be dedicated to adoptions, it seems inconceivable that the department can divert so many resources to processing adoptions considering the level of need in South Africa and how under-resourced it currently is.

DSD social workers allegedly have an eye-watering caseload of between 100 and 300 cases at any time, depending on the province. This regardless of national norms recommending no more than 60 cases per social worker. By contrast, social workers in the United Kingdom and the United States typically have a tenth of the caseload (about 20 to 30 cases at a time). Most department social workers are already overwhelmed by their volume of work which is typically allocated according to the importance of the case and departmental priorities. Cases deemed “less urgent” are unlikely to be given precedence.

The impact of social worker caseloads is already evident in abuse cases, where children are sometimes removed from an abusive environment too late to avoid long term damage, trauma or even death. According to Stefanie Rohrs from the Children’s Institute, as many as 500 children die annually because of abuse and neglect, deaths which could have been prevented if the department had sufficient resources to intervene timeously.

It is also felt in foster care. Most provinces still have a backlog of thousands of foster care cases needing to go to court. Unati* began caring for her 10-year-old niece Tuelo* in 2010 after Tuelo’s parents and maternal granny died tragically. Unati reported that even though her late brother worked for the DSD, and their case involved kinship foster care and was, therefore, one of the department’s top strategic priorities, it took social workers almost 8 years to secure a foster care order. Tuelo received it just months before her 18th birthday when she was deemed no longer in need of care and protection.

While children needing adoption are seldom in immediate danger, most are in Child and Youth Care Centres (CYCCs) prior to placement, and extensive studies have shown that even the best institutions have a negative impact on children’s neurological development and ability to attach, especially in the crucial first 1000 days of life. In addition, the adoption placement of older children is uncommon in South Africa, so the older a child is, the less likely they are to find an adoptive family. Adoptions are therefore time urgent. But the adoption community and the Centre for Child Law has already accused the government of slowing down adoption cases and making placement harder. The amendments are likely to further increase the government social worker’s burden as they attempt to fit complex adoptions into their already onerous caseloads, where life and death cases must take priority. The upshot is that many children will become unadoptable and institutions will be too full to take in new children requiring care.

But are adoptions really complex, or is the government’s argument that adoption is the same as foster care, placing a child in a CYCC or other child protection services valid? Government’s position is perplexing. Strict controls over adoption and the need for specialisation written into the Children’s Act have always been interpreted as an acknowledgement of adoption’s ethical complexity. Not only does adoption result in a permanent change to a child’s legal and familial identity, but it also requires a social worker to balance the sometimes competing needs of the adoptee, birth mother and adoptive parents.

In addition, South African social workers must navigate the cultural challenges of matching adoptable children, most of whom are black, to adoptive parents, many of whom are not black. These challenges are even greater for the social workers responsible for approximately 150 annual inter-country adoptions. But, regardless of the cultural, racial and social obstacles, there is an extremely low rate of adoption failures in South Africa, which is a testament to the skill of existing social workers.

Critically, adoption is different from other child protection measures like foster care or CYCCs where children remain wards of the state, or child-headed households, where supervision and oversight from a social worker are continuous through childhood (or at least, it’s supposed to be). Adoptive children don’t typically receive ongoing support from social workers which makes expert screening even more crucial. Once an adoption order is granted, adopted children are legally deemed to have the same status as biological children (the wording is, “as if born” to their adoptive parents). A mistake in screening could, therefore, have life-long consequences for the child.

Conversely, when done correctly, adoption is intended to end the state’s ongoing participation in the life of a previously vulnerable child, allowing the government to allocate scarce resources elsewhere. It is the reason why a comment made by the DDG for Social Welfare, Conny Nxumalo, on SAfm’s mediated conversations with Stephen Grootes was so concerning. She referred to adoption as a way for adoptive parents to “take care of a child on behalf of the government”, implying a lingering involvement in the lives of adoptive children by the state. This lack of willingness to confirm permanent care and protection is evident in the government’s emphasis on foster care. Along with family reunification, foster care is the government’s first prize child protection strategy. Other interventions are therefore considered secondary options. Oliphant stated in the eNCA interview that for a child, being adopted is the same as institutionalisation or growing up in a child-headed household.

The department’s stance that adoption is one of several equivalent child protection services prompted it to argue that adoption should not be “a business”. And given Oliphant’s claim about government research indicating that adoption practitioners charge between R3,000 and R600,000 for adoptions, it may have a point. The alleged R600,000 fee sent shock waves through the adoption community because while some adoptions are free, they on average cost between R12,000 and R15,000, and those performed by CPOs are highly regulated by the government itself. Even fees for inter-country adoptions, known to be lengthy and for their legal and moral complexity, are capped at R35,000. And although the government is not permitted to limit the fees charged by private social workers, all fees must be disclosed and justified at court before an adoption order can be granted, information which is then made available to the DSD. If that R600,000 figure was correct, it would be 17 times the maximum amount that CPOs can charge, and the government would probably be correct in suspecting illegal activity.

However, there are some problems with the spokesperson’s allegation. If the government suspects trafficking or fraud, why is it ”researching” fees, rather than acting to shut down or prosecute possible offenders? Equally, if it has evidence of offenders, why legislate to control the entire industry rather than litigating against the perpetrators? It is also unclear why the department is claiming to be disempowered when it already tightly controls the adoption process. It can stop an adoption at the adoption panel stage if it feels that an errant social worker has unethically placed a child prior to seeking out a family solution. It can also act against any social worker or CPO that is charging too much for adoptions.

Moreover, some activists argue that using fees to explain low adoption numbers is a red herring. The real reason why poor people are not adopting is not the cost of the adoption, but the ongoing cost of raising a child. The Centre for Child Law contends that while families who foster orphans or vulnerable children are entitled to the Foster Care Grant and other benefits like school fee exemptions, the only financial support available for adopted children is the Child Care Grant. This is two and a half times less than the Foster Care Grant. If the government really wanted to increase adoption numbers, it could do so by providing commensurate means-tested financial assistance to adoptive parents.

So, if there is no credible proof that fees prevent adoptions, or that adoptions are inaccessible because of fees, what is the real motivation for these amendments?

Much of the argument around the amendments presupposes that government wants adoptions to continue. But, although Nxumalo stated that adoption is a key South African child protection strategy and the department wants to increase adoption numbers, the government’s attitude towards adoptions has been far from supportive in recent times. It is notoriously difficult to get the DSD to provide Form 30 documents essential for adoptive parent screening, panels to approve adoption matches are infrequent and often adversarial, the Department of Justice regularly makes obtaining an adoption order challenging, and the Department of Home Affairs is notorious for its delays and obfuscation when adoptive parents want to obtain birth certificates for their adopted children. Further, Karabo Ozah from the Centre for Child Law cites the Centre’s frequent need to resort to litigation forcing the department to uphold the law regarding adoption as proof of its lack of endorsement.

There is certainly convincing evidence that government isn’t pro-adoption. But why is that? To understand, we need to look past the narrative to the elephants in the room: culture, race, money and consent.

The most well-accepted answer is culture, aligned to apprehension about permanently changing a child’s identity. In a recent article on the topic, Dee Blackie, an anthropologist and activist stated that cutting the patrilineal line (line to their father’s ancestors) is problematic and that adoptive parents and even government officials are concerned about angering the ancestors when they participate in adoption.

Of equal concern is the routine placement of black children in trans-racial families. The government certainly cannot allege that “supply and demand” are driving South African adoptions because there are too many children in need, and too few adoptive parents able to adopt unrelated children. It is also true that black children are always matched with available black families first, so they are being adopted by white parents as a “last resort” in terms of government strategy, largely because there are insufficient black adoptive parents. This is partly due to cultural concerns, including a reluctance amongst some black families to adopt abandoned children because of their unknown heritage. But it’s primarily because many black families are already caring for the children of relatives, and because of legacy issues: the consequence of adoption reflecting class lines which, even after nearly 25 years of democracy, still mirror race. Regardless of the driving factors behind trans-racial adoption or the motivation of adoptive parents (usually the desire to give a child a permanent family or grow their family), the fact that so many children are adopted trans-racially is deeply distressing for some black people, a reinforcement of the ongoing wound of apartheid.

Government’s same-race adoption emphasis also means that there are no stories about black people adopting white children further accentuating adoption’s racial divide. Some black South Africans, therefore, view adoption as an ugly addendum to colonialism: “You have taken everything else, and now you want our children too.” Add to that the underlying concern about the commercialisation of adoption and it is easy to see why, despite a lack of corroborating evidence, certain adoption critics have linked adoption to trafficking and even a new form of slavery. Oliphant, for example, has as far back at 2015, explained low adoption numbers by saying that “our babies are not for sale”.

But even same-race adoptions are problematic for many officials because of the seldom discussed, but thorny issue of consent. African families are built on the principle of extended family and multiple layers of familial support which should mean that African children grow up in some form of extended family structure. The Children’s Act, however, allows biological parents to consent to placing a child in an unrelated family without the need to consult their immediate family. Most activists can quote cases where officials have opposed consented adoptions because extended family was not consulted.

After consenting to her son’s adoption, Kholiwe*, a young biological mother, was almost driven to suicide when a local department official threatened to tell her parents about the baby. Kholiwe was the first of her family to go to university and was estranged from the baby’s father, so the thought of her family knowing about her pregnancy was devastating. But although the law permitted her to consent to adoption without parental approval (she was over 18), the official was determined that her son shouldn’t be placed without the family’s knowledge. Kholiwe’s consent was eventually upheld by the courts, but not before the official had contacted her parents. It resulted in significant damage to her emotional well-being (she missed crucial exams and was intent on self-harm). However, the official has not been sanctioned. Her intervention gives us insight in just how controversial consented adoptions are in South Africa, and the significant clash between traditional values and the law.

So, what is the way forward? Adoption fees will be the battleground when the amendments are eventually debated at parliamentary level. But it seems that the adoption community is in for another agonising wait. The Children’s Act Amendments are not on the agenda until the 6th parliamentary committee convenes after the upcoming May elections. That committee will (hopefully) take cognisance of the intense public opposition to the amendments, and be open to ongoing debate on the proposed changes.

But this challenge also represents an opportunity for the adoption community and the government. If both want adoption to continue, it’s imperative for them to work to make it less euro-centric and culturally threatening.

One option is to make it mandatory for all consented adoptions to be open unless the biological mother implicitly states otherwise (in other words, the biological family is known to the child, and there is ongoing contact between the adoptive and biological families). This will maintain the child’s ties with extended family. Another alternative is to make extended family part of the consent process. The risk is that many women who, like Kholiwe, don’t want their families to know about pregnancy, will abandon rather than consent (already a significant problem with girls under 18). But, on the positive side, the change would allow more adoptive families to be incorporated into existing African families.

The government can also increase adoption numbers by providing post-adoption financial support through the new extended Child Support Grant (the CSG top-up). This grant was approved in April 2018 for children in need of financial assistance who are being cared for by kin. Financial assistance would facilitate poorer families adopting both unrelated children and related children currently in their foster care.

Practically, the outcome of this battle will depend on what interested parties value most. We should not underestimate how high the stakes are. For government, the contest is about the preservation of culture and African families, for adoption practitioners it is about the importance of children growing up in families, about vocation and livelihood. But it is the children who are caught in the cross-hairs who have the most to lose. While adoption is not the only child protection strategy, for some children it is their only option for permanency, and for many, it is an escape from a childhood in institutional care, and an adulthood of premature independence. For a few, it could even mean the difference between life or death. We therefore owe it to our children to negotiate a solution that is not based on ideology, self-interest or political agenda, but their best interests. DM

*Names changed to protect identities

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