Opinionista Robyn Wolfson Vorster 5 December 2019

Adoptions: Proposed new law could do irreparable harm to SA’s most vulnerable

November was World Adoption Month. It was also the first anniversary of the gazetting of the Children’s Amendment Bill which may end adoptions in SA. What started as a debate over fees, increasingly seems to be a battle for control and an underlying dispute about the purpose of adoption.

In November 2018, the adoption community in South Africa was rocked by the last-minute addition of three clauses to the Children’s Amendment Bill (CAB) which will prohibit the charging of fees for adoptions by any professionals. The resulting controversy, which played out in the media, in national petitions, in child protection forums, and behind closed doors, focused around the role of fees in child protection and a host of related issues including access to adoptions, the role of adoption in the country’s child protection strategy, subsidies, grants and emotive issues like undue profit, transracial adoption and trafficking. Yet, after a year of conflict, questions are being asked about the government’s real objective.

One allegation is that the Department of Social Development (DSD) was not in agreement, or even intentional when it made fees illegal. Its goal in amending the Children’s Act may actually have been to remove fee clauses from the act to homogenise the child protection process and allow for industry regulation.

It’s speculation, but there is some credible evidence. Firstly, advocate M Mathaphuna, who was responsible for legal oversight of the bill, answered a question about fees at the National Child Care and Protection Forum in July 2019 by explaining that as an attorney, his fees are not prescribed in legislation like the Marriage or Divorce Acts, they are instead regulated by his professional industry body. His answer was significant because while it may be ideal for professional bodies to regulate adoption fees, if the adoption fee clauses are deleted, it will make the charging of fees for any adoption-related work illegal.

The conjecture was reinforced when the Memorandum of Objects (MOO) for the bill was finally released in late August (eight months after the bill went to Cabinet). The MOO seems to contradict itself. It initially states in Ad Clause 128(a) that: “The amendment provides that adoption is one of the designated child protection services as stipulated in section 105(5) Act. Therefore no fees should be charged for adoption because it is not a business but a child protection measure.”

But 128(f) expresses a conflicting position: “The removal of adoption fees does not mean that the department is prohibiting social workers, lawyers, psychologist and other professionals in private practice… to render relevant services in relation to the adoption of children. Such services may be rendered the same way like in all other areas in the Children’s Act where such services are required. The charging of fees is simply not be (sic) legislated herein, but will be left to the respective professional councils to regulate. This relates to Section 22 of the Constitution of the RSA 1996 which does allow for the regulation of how one can exercise his or her profession.” (Emphasis added.)

This clause reiterates an undertaking made by the department to the professional body governing social workers. But it’s an undertaking it cannot uphold with the current wording in the CAB. It’s hard to escape the conclusion that the department either made a mistake in its drafting or that there was more than one agenda in play.

But if it was an error, why has the DSD not corrected it, instead of vociferously defending across media platforms its decision to delete fees? Again, we can only speculate. It’s possible that regardless of the original objective, the department has seen the CAB as an opportunity to shift the responsibility for adoptions from private social workers and child protection organisations (CPOs), to the government.

At a parliamentary briefing in September, the DDG for social development very tellingly explained that the department wants to advocate for the adoption of orphaned children as a way to deal with the foster-care challenge (a sentiment echoed in clause (h) of the MOO). She, however, explained that “we want to promote adoption, but what we are clear about as a department is that government social workers need to provide the adoption”.

It’s confirmation of what the adoption industry has long suspected, that the DSD wants control of all adoptions. But why? One of the clues is in another explanatory note in the MOO, 128(e) focusing on reunification: “The issue of fees for adoption created challenges where the best interests of children were compromised because not enough efforts were made to consider other alternative care options catered for in the Act, to retain children within their families of origin, such as family reunification, parental and family care, foster care and adoption by family member, guardianship, parental responsibilities and rights, before adoption of a child by a person outside the child’s family can be considered.”

This note encapsulates the department’s child protection hierarchy: parental and family care, followed by foster care or adoption by a family member, guardianship, and only then adoption by an unrelated person.

It also articulates a clear misperception about which children need adoption, and equally about who is adopting. When read together with comments made by senior DSD management to the Portfolio Committee on Social Development, it appears that the government sees adoption as primarily (or maybe exclusively) for relatives adopting what it refers to as “our own” children, the country’s 2.3 million orphans.

Taking issue with a government committed to the adoption of orphans by their relatives seems an indefensible position; until we ask, as civil society has on a number of occasions, whether those families actually want to adopt the orphans they are caring for. In many cases, the answer is no. In South Africa, orphaned children are either in the foster care system, receiving a foster care grant (which would fall away if the child was adopted), or being cared for by a relative under a guardianship order, or in families implementing traditional African adoptions, an ancient system where orphans are permanently cared for by relatives without the legalities of a formal adoption.

Still, even if the department is misguided to think that families want to formally adopt their orphaned relatives, many would ask what harm this government policy could do. The answer is two-fold. The biggest concern is that in focusing on the adoption of orphans by relatives, the department isn’t planning for the children who need adoption most, those who were abandoned or whose parents cannot or will not raise them, and who have therefore been placed in the child protection system.

The department’s claim that fees are making social workers pursue adoptions rather than reuniting them with family is rubbished by the country’s statistics. In 2017/2018, there were only 1,186 adoptions in South Africa, many of which were step-parent adoptions. While we don’t know actual figures because the department won’t disaggregate the statistics, social workers indicate that as few as half of these annual adoptions are children adopted by unrelated families.

If as many as 3,500 children survive abandonment every year, and hundreds of others are being consented for adoption, it’s impossible to argue that social workers are “pushing” adoptions either to supply a demand, or for fees, rather than reuniting them with family first. For most of these children, reunification is not an option, either because no family can be traced, or because their mother has exercised her legal right to consent to an adoption without giving her family the option to raise her child.

Given how few of these children are being placed in adoptive families annually, the focus shouldn’t be on why the handful of children being adopted weren’t reunified with their birth family, but rather on why numbers are so low, and what happens to the children who aren’t being adopted every year. The South African foster care system is broken, so most must be growing up in institutional care, to their detriment emotionally and developmentally, and at an enormous cost to the state (one 2005 study estimated that even then, 18 years of institutional care for a child cost almost R2-million).

Second, the perception that relatives want to adopt orphans, but cannot, is what motivated the deletion of the adoption fee clauses in the Children’s Act. The department’s explanation was that if there are no fees, “a poor woman in Bushbuckridge could adopt”. But the result of this approach will be to drive private social workers and CPOs out of adoptions and place the burden of responsibility solely on under-resourced and unprepared government social workers.

The problem is not related to the skill or ability of government social workers, but to resource constraints and a very real lack of adoption experience among departmental social workers (which is not surprising, given that the department excluded its social workers from adoptions when it wrote the Children’s Act). But, it’s noteworthy that although the act was amended in 2017 to allow the DSD to perform adoptions, it has yet to complete many (if any).

And even if DSD social workers had more experience, it’s doubtful if they have the necessary capacity. During September and October 2019, the DSD made multiple presentations to the Portfolio Committee about its efforts to ensure that all foster care orders were manually renewed before they expired at the end of November. Almost every province highlighted a woeful lack of human resources. The result was that some provinces had to deploy all their social workers to cope with the foster care crisis. KwaZulu-Natal for example openly confessed that: “All of our social workers are working on this [foster care] programme.”

The department did not even have enough social workers to take care of abuse cases or children in immediate danger.

Granted, this crisis was extraordinary. But it showed that the department doesn’t have the capacity to take on additional tasks, especially since the bill also doesn’t solve foster care, and therefore won’t reduce its current workload. The head of adoptions has committed to providing 889 social workers for adoptions. But, with ratios in some provinces of one social worker to every 10,000 people, and current workloads of 100 to 300 cases per social worker, how can the department add ethically complex adoptions (which can take experienced social workers two years to complete) to their workload, or focus any resources exclusively on adoptions?

In addition, adoptions are expensive. The department is yet to publish the Deloitte costing of the CAB. But, CPO estimates are that each adoption costs an average of R35,000 to R45,000 per child (only a small portion of which is currently funded through fees). It’s unclear how the notoriously cash-strapped department will fund this process.

Nor has it explained how it will fund some of the non-negotiable adoption processes which cannot be provided by professionals if fees are made illegal, including: adoption medicals for adoptable children and adoptive parents, chest x-rays, therapeutic assessments, psychological evaluations for adoptive parents, police clearances, legal interventions in the case of adoption disputes, adverts to trace missing birth parents, the cost of obtaining unabridged birth certificates from the Department of Home Affairs (DHA), or even the vehicles and fuel necessary for home visits to birth and adoptive parents.

Without funding, many of these tasks will remain incomplete, and without them, magistrates won’t grant adoption orders.

Adoptions will stall and children will languish in care until their age mitigates against them being adopted locally. And while older children, like children with special needs, are still being adopted to other countries, inter-country adoptions are even more time consuming, and more legally and ethically complex than national adoptions, so the chances of department social workers completing them are very small. Many children will, therefore, end up spending their childhood in institutions.

It raises questions about timing. If the department does want the monopoly on adoptions (which it should still be asked to explain), why now? Why not wait until its own social workers have the experience, expertise and resources necessary for the task? And why not organise a mentorship or shadowing programme with existing adoption social workers first so that they can pass on the skills?

Even if the CAB isn’t passed in its current form though, adoptions in South Africa are still under threat, ironically, from the government departments tasked with making them work: the DSD and DHA. It’s evidenced by two High Court cases which were heard during World Adoption Month.

In the Durban High Court, the National Adoption Coalition of South Africa (NACSA) argued that the KwaZulu-Natal DSD has been responsible for what experts term the “constructive prevention of adoption”: slowing down or blocking adoptions, elongating the investigation into whether children are adoptable, and interfering even after adoption consent is given by birth mothers. The department’s interference led to only eight adoptions taking place in the province in 2016, to baby homes being over-capacity, and to children spending far too long in care prior to being adopted, if they are adopted at all.

Also in November, the Western Cape High Court was asked to intervene urgently in the case of five children whose adoptions by American families had been legally finalised, but who were barred from leaving the country due to an alleged new policy for children adopted by “foreigners”. This left the families stranded in South Africa for months. They were initially told that they could only make applications for the children’s passports after they had obtained unabridged birth certificates in their adoptive names (a process which, notoriously, can take up to four years).

Then to make matters worse, these children, who all have special needs, ranging from Down syndrome to one child whose congenital birth defect resulted in her being born with a portion of her brain missing, were permanently barred from leaving because the DHA determined that once their post-adoption identities had been registered, they were no longer South African citizens, and were therefore not entitled to a South African passport.

In a seemingly callous act, the DHA effectively rendered them “stateless” because they had been adopted by US families. This, despite all legalities being approved by the courts and the DSD, and despite these children very obviously being unable to find families in South Africa. The DHA finally consented to a High Court ruling ordering it to produce birth certificates and passports for these children. This allowed them to enter the US, and receive the US citizenship they were entitled to through their adoption, but which they could only obtain on entry into that country.

Significantly, the order only applied to these five children, and fearful that it will occur again, the US government has issued an advisory, warning American families against adopting in South Africa.

Both cases appear to be about control, and both circumvent the authority and expertise of social workers and the courts in determining which adoption placements are in the best interests of each child. In the DHA case, it even undermines bilateral treaty obligations and the responsibility of the South African Central Authority for applying the Hague Convention. And disturbingly, in asserting control, the government is violating its own child protection ethics and values.

One of the cases included in the KwaZulu-Natal action against Social Development involved a mother who wanted to place her third child for adoption because she could not financially care for all three children. The DSD panel who heard the case opposed the adoption, instead recommending that all of this birth mother’s children be removed from her and placed into care to “alleviate her burden of child-raising”. In so doing, the department not only infringed on the birth mother’s right to consent to an adoption (which is enshrined in the Children’s Act), but also its own emphasis on children being raised within their families wherever possible, not to mention its constitutional imperative to act in children’s best interests. The result of the DSD’s opposition was that the child’s adoption was only approved after he had been in care for two years.

In the Home Affairs case, stripping these adopted children of citizenship resulted in the government directly violating the ethics of intercountry adoptions and principles of the Hague Convention, and infringing on their rights to both a name and nationality, and to stay connected to their first culture (a global imperative in inter-country adoptions that has been fervently defended and affirmed by the South African government). DHA interference also resulted in five special needs children, who had all spent the first few years of their lives in institutional care, and were old enough to know that they had a family for the first time, being separated from those families for an extended period shortly after meeting them.

It’s a grim picture. If the CAB is passed in its current form, the worst-case scenario is that financial and human resource constraints, along with a lack of experience, will end adoptions. If adoptions continue, they will probably only be available for related children. Consented adoptions won’t occur, abandonments will increase and (because the government has no plan for safe abandonment), more children will die. Those that survive will spend longer in institutions or in impermanent foster care. And even if the CAB is amended prior to approval, the government may continue to interfere in the adoption process or after adoptions are granted.

Hope could still come through court rulings and the oversight of the Portfolio Committee on Social Development. But until those parts of the government tasked with caring for children begin to act in the best interests of all children (not just those whose heritage and lineage we know), adoption will remain contested and the country’s more vulnerable will reap the consequences. DM

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