Durban - A 4½-month-old baby is to get his own advocate to represent him in a legal tug of war over his adoption.
This was the ruling of Durban High Court Judge Phillip Nkosi in an urgent application which stayed an order that the child be immediately removed from the care of the couple who want to adopt him - and who have been looking after him since birth - and put in a place of safety.
This was because the biological father had belatedly chosen to challenge the adoption because he wanted the child raised in his own faith.
The application was launched by the biological mother of the baby boy, a 39-year-old housewife with adult children, who said she had an on-and-off sexual relationship with the father, a tow-truck driver.
“In 2015 I discovered I was pregnant. I informed him and he was furious. He insisted that I have an abortion. He even came to my house with medication to terminate the pregnancy. I refused to do so,” she said in her affidavit.
“He told me on numerous occasions that he wanted nothing to do with me or the baby. He accused me of betraying his trust. He even went so far to deny that he was the father and threatened me with physical violence should I continue to say he was,” the mother said.
Requests for financial help, baby clothes and equipment were refused.
“When I had the child I informed him and sent pictures, but he ignored me. For this reason I did not put his name on the birth certificate.”
For financial reasons she decided to give the baby up for adoption. The couple had no children of their own, had been married for 20 years and both had stable, professional jobs.
The day after she gave birth, she handed her baby to the couple and signed an affidavit consenting to their caring for him.
“I have kept in touch with them and they employed the services of a private social welfare officer to facilitate the adoption,” she said. “I was informed that in spite of not being named on the birth certificate, I had to inform the father of the proposed adoption. The social worker contacted him and he was rude and abusive, and said he wanted nothing to do with the matter.”
A notice was then served on him giving him 30 days to give his written consent to the adoption and then he suddenly had a change of heart.
“He called me and said he wanted the baby raised in the Islamic faith. It was a sin for him to be raised in another faith and he would not give his consent. He said he had no intention of raising him himself, but he knew a moulana (scholar) who would take him in and care for him,” the mother said.
When the adoption proceedings came before the Children’s Court, the father told the magistrate that his rights were being infringed and the magistrate was of the view that it was necessary to determine whether the baby was in need of care.
He then ordered that the child be immediately removed from the couple.
The mother, with the assistance of attorney Benita Ardenbaum, immediately launched the high court application, arguing that the baby was being very well cared for and his removal would have a “severe detrimental effect on his well-being, emotional and psychological stability”.
Judge Nkosi ordered that the child remain with them and declared “that it is of significant importance to the current life and future development of the child... that he has constitutional right to his own legal representation both in these and the adoption proceedings”.
The Society of Advocates has been asked to appoint a lawyer. The matter was adjourned until October to give the father and the magistrate an opportunity to oppose the orders being finalised.
The Mercury