Opinionista Robyn Wolfson Vorster 1 March 2020

Adoption: Landmark court ruling gives hope to KZN’s vulnerable children

In a country where adoption numbers are low and declining, KwaZulu-Natal, the province with the largest number of orphans, is also the one with the fewest adoptions. In 2016, only eight were granted. Children have languished in care for years waiting for adoption placements. But now a landmark high court decision will change that.

Adoptions in KwaZulu-Natal (KZN) have been lengthy and contested for more than a decade. In the seven years after the Children’s Act was implemented, the province only approved 174 adoptions (about 5% of the national average). But, in 2016, matters escalated when the Department of Social Development (DSD) called an immediate halt to adoptions in the province, citing child trafficking as the reason for the embargo, an allegation which is yet to be proven.

When adoptions finally resumed six months later, celebrations were short-lived. Although they were once again possible, the department used the opportunity to implement constricting policies that slowed them down to a trickle.

The department’s role in the adoption process is articulated in the 2005 Children’s Act. The act specifies how adoptions should occur and who is responsible for each part of the process. It tasks the department with providing the Children’s Court with a Section 239(d) letter indicating if it approves the adoption. Without the letter, adoption orders cannot be granted by the court. However, the act does not operationalise the task, or stipulate what the department should (or shouldn’t) consider in reaching its decision. It’s therefore left to the department in each province to decide how adoptions are evaluated.

Whether by deliberate strategy or calculated negligence, the department in KZN used this portion of the adoption process to ensure that very few adoptions were approved, and to subject all provincial adoptions to significant delays.

The KZN 239 process was bewildering. All adoption cases had to be presented to a panel whose expertise in adoption was questionable, and who met infrequently, erratically, and often at very short notice. When adoption social workers were able to present their cases, panellists inexplicably queried even the simplest ones, including those involving birth parent’s consent. The result was months of delays. And when Section 239(d) letters were finally submitted to the HOD for signature, she routinely re-interrogated all approved adoption cases prior to signing (if she signed them at all).

Predictably, a process which the department’s terms of reference document stated would take 21 days (14 for the panel consideration and seven for the HOD to sign the letter of recommendation) became massively protracted, taking six months on average, and in one case, three-and-a-half years. Only four letters of recommendation were issued in less than three months. It’s therefore not surprising that adoption numbers plummeted even further, and that many families were forced into impermanent foster care rather than adoption.

But social development authorities were unconcerned. The then KZN head of department, Nokuthula Khanyile (she has subsequently been suspended and moved to the premier’s office after the Hawks raided her offices as part of an ongoing investigation into corruption, fraud, nepotism, maladministration, money laundering and Contravention of PFMA), told Carte Blanche in 2017 that there was “no crisis in adoptions” in the province. She explained that the department’s process changed because they found that those responsible for signing the 239s were not doing a “proper interrogation and quality assurance”.

She went on to argue that children belong in families (specifically their family of origin) and that adoptions, whose primary consideration should be “cultural compatibility in terms of cultural background”, occur at the expense of family reunification. When asked about the low numbers of adoptions taking place in the province, her response was that adoptions were just “not popular” or “in high demand”.

Had reunification been an option for all children as the HOD intimated, the situation may not have been so dire. But instead, the number of children in need soared. Within months many baby homes had reached capacity and began turning vulnerable children away. Others reported that for the first time, their children were starting school, and spoke of searingly painful conversations with children asking why “no one wanted them”.

Finally, in desperation, the National Adoption Coalition of South Africa (Nacsa) in partnership with the Centre for Child Law instituted high court proceedings against the HOD and the department to force a change in policy.

The advocate who argued the case, Deborah Ainslie, described the burden of responsibility she felt:

“I was anxious every step of the way, feeling the weight of the consequences of making a mistake, of failing. I was sure if I could just explain the situation properly, in the papers and then in argument, we would achieve a good resolution. It was obvious that something was going wrong, but to analyse every application from December 2016, identify the problem and then to find the solution, was the challenge.”

After two years and multiple delays on the part of the respondents, the judgment, which was an overwhelming victory for the adoption community, and included very specific remedies and a cost order against the department, was handed down in the last week of February.

Judge Rishi Seegobin ruled that the department policy, its accompanying “irrelevant considerations and delays”, and the HOD’s failure to make decisions left children and their prospective adoptive parents in a state of limbo and violated the children’s rights as articulated in the Constitution of South Africa, including, “the best interests of children (Section 28(2)), and their rights to dignity (section 10), to freedom and security (section 12) and to equality (section 9)”.

He further ruled that the department’s lack of consideration of relevant factors, and their consideration of irrelevant factors including disregarding “informed consent properly given and decisions made by birth parents, regarding the recommendation of adoptions” is a “violation of these biological or birth parents’ rights to dignity (section 10), to equality (section 9), to freedom and security (section 12), to privacy (section 14), to freedom of religion, belief and opinion (section 15) and to the right of language and culture (section 30)”.

Irrelevant considerations and delays were also a violation of the “right to access to court, and the right to just administrative action of children who are adoptable and that of the prospective adoptive parents of children who are adoptable”.

Most significant are the remedies included in the order. The department has been ordered to clear the backlog of adoption applications within 30 days and to strictly adhere to the 30-day turnaround time articulated by the national department for all future applications. The HOD has been given seven days to sign all letters of recommendation. It is further ordered that if the letter of recommendation is outstanding for more than 45 days after application, it may be “waived by that court in the interests of justice for the children who are awaiting adoption”.

The order also instructs the KZN department to report to the court within 60 days and present a “plan of improvements for the panel, including: its composition in accordance with the guidelines, regular scheduling of panel interviews, adequate notice to adoption social workers of their interviews, a working guide for the panel including factors to be considered and which are not to be considered schedule regular panel sessions”, a schedule of meetings to be planned for the next 12 months, details of “composition of the current adoption panel and its members’ qualifications or positions held, indicating specifically the adoption experience”, as well as a report addressing “discrepancies between the provisions of the act, national policy and KZN DSD policy”. They are then required to report to the court every six months for two years.

Considering the HOD’s approach to adoption, the portions of the ruling where the judge directly addresses her stance on adoptions, and the role of the department are noteworthy. The judgment states:

“The respondents create the impression that there are no real problems in the manner in which adoptions are being dealt with in the province. However, the statistical evidence provided hereinbefore (and not disputed by the respondents) paints a completely different picture on the ground… While the HOD sought to publicly deny the de facto injunction when she appeared on national television on 3 September 2017, the downward trend in adoptions as revealed by the statistics provides adequate proof of this.”

In addition, the judge astutely noted that: “The first respondent adopts the view that because the Section 239(1)(d) letter of recommendation is peremptory in the adoption process, it is up to her to decide when the letter should be provided. The fundamental difficulty that I have with this stance is that while the HOD is entrusted to exercise this power, she fails to realise that this is not an absolute power and certainly not one that can be exercised to the detriment of the child and the best-interests principle.”

He observed that “the HOD’s stance is concerning, as it tends to denote a clear lack of understanding of her role in the adoption process and the need to exercise her powers according to the precepts of the Constitution, the provisions of the act, the department’s policy guidelines and her own terms of reference. The result is a complete violation of certain fundamental rights in the Constitution, such as the rights to dignity (section 10), to equality (section 9), to freedom and security (section 12), to privacy (section 14), to freedom of religion, belief and opinion (section 15) and the right to language and culture (section 30) of potential adoptable children”.

Moreover, there are other important parts of the ruling which will have broader application to adoptions across South Africa. They include: the purpose and definition of adoption and the articulation of the previously undefined objective of the 239 letter.

The ruling states that the purpose of adoption is to “provide a permanent family for a child, with bonds that reach beyond the age of 18”. The judge argued that:

“Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if a child is brought up in a family… Too many children in South Africa are abandoned, abused, neglected and left with no hope of experiencing the love, joy and stability of their own family. Adoption is a time-immemorial custom embedded in human society. It is also entrenched in our law and gives a child a right to grow up in a family and [to] experience the positive impact developmentally and psychologically as opposed to growing up in an institution. Bureaucratic and unnecessary delays in the adoption procedure should play no part in impeding a child’s right to his or her own forever family.”

He went on to define the function of the section 239(1)(d) letter issued by the provincial head of social development which is to ensure that “the legislative provisions are adhered to by accredited social workers within the framework of their professional ethics and responsibilities; and to provide for the best interests of each child, considering factors specifically and peculiarly within the knowledge of the Department of Social Development.”

Equally critical for national adoptions are portions of the judgment where the judge deals with the importance of adoption, the need for expeditious decisions and the issue of race:

The judge began his judgment by bemoaning the “growing crisis in the country” with “an ever-increasing number of children who are being cared for in alternative care settings, thus growing up without permanency and support of a family unit. The destinies of orphaned or abandoned children are divergent”, he continued.

“Some are cared for by their extended families, others are fortunate enough to find adoptive or foster parents who are able to provide them with a home and family life. But sadly, there are many who are bound to spend their days in institutions of care.”

“The obvious solution to this crisis is adoption”, he asserted, “but as this case seeks to show, this is easier said than done, especially in KwaZulu-Natal.”

According to the judgment:

“Section 229 of the act stipulates that the purpose of adoption is to protect and nurture children by providing a safe, healthy environment with positive support and to promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime. Children’s rights are further protected and entrenched in Section 28(2) of the Constitution, which stipulates that every child has the right to family care.”

He also reinforces the role of government in caring for vulnerable children:

“While the State does make provision for inter alia child grants, foster grants, free schooling for the poor, school feeding schemes, and so on, it seems to ignore, especially in KwaZulu-Natal, adoption as a viable alternative which ensures that a child is reared in a proper family setting thus placing less strain on the fiscus.”

Regarding delays in the adoption process, he contends that “for a child to be institutionalised for an extended period, and more so especially in the first 1,000 days, has been shown to do irreparable harm to the child and this harm extends into adulthood. This is all the more reason that every effort should be made to place adoptable children in the care and security of their prospective parents without delay.” And that “in order to obviate the harmful effects of institutional upbringing, it is abundantly clear that the sooner an adoptable child is placed within a family setting, the greater are its chances to grow and flourish”.

More damningly, he confirms that “the respondents, either through ignorance or a lack of understanding, seem to ignore this crucial period in a child’s development”.

Although race and trans-racial adoption remains a concern (especially for the HOD), the judge argued that “whilst ancestral and cultural beliefs are no doubt necessary considerations in adoptions of this nature, I do not believe that they should stand in the way of any adoption process. In a culturally diverse country such as ours and with an ever-increasing number of children being abandoned, neglected and orphaned on a daily basis, the need for adoption becomes greater and must prevail over issues of culture and race”.

To quote Marietjie Strydom, the adoption and attachment expert who initiated the case “it is incredibly reassuring that the justice system has affirmed and formalised in a judgment what neuroscience has proven: that it is essential that children have the permanency of a secure family environment to grow up and develop in. It was also highlighted that time is of the essence and delays in the decision-making process for vulnerable children is detrimental. This judgment provides a clear and concise directive for all involved in the adoption realm and keeps them accountable to ensure best outcomes for children. It truly is an incredible step forward for vulnerable children in SA”.

The judgment will serve to clear the backlog of adoptions in KZN and enable future adoptions. Equally, it will establish a constitutional and legislative basis for adoptions to be promoted. For those involved in the case, including the advocate for Nacsa and the Centre for Child Law, that is a victory. In the end, she says it best:

“I am thrilled with the outcome, grateful, humbled and honoured.”

During argument, “I was always aware of, and buoyed by, my adopted brother sitting on the benches right behind me.”

Like many people, adoption for Deborah Ainslie is personal, and now, as a result of her efforts and the many others who worked tirelessly on this case, important legal precedents have been set. Despite the looming Children’s Amendment Bill, these principles should make adoption easier in the future, not only in KZN, but across the nation. DM

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