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Pretoria - In a ground-breaking order regarding the rights of children, the Pretoria High Court on Wednesday clarified certain sections of the Children’s Act to facilitate the process whereby a step-parent may apply to the Children’s Court to adopt.
Judge Johan Louw issued a declaratory order on Wednesday.
It says that, contrary to interpretations by magistrate’s courts, the Children’s Act does not prevent a child from being “adoptable” merely because the child has a parent or guardian - and the person wanting to adopt is the spouse or permanent domestic life partner of that guardian.
Also, the parental rights and responsibilities of the guardian are also not automatically terminated when the step-parent adopts the child, Judge Louw ruled.
The minister of social development was ordered to publish this order in the Government Gazette.
The Centre for Child Law at the University of Pretoria turned to the court to clarify certain sections of the act as it was vague and caused confusion. Many people who wanted to adopt were being turned away by the Children’s Court because of the narrow interpretation of the sections that dealt with whether a child may be deemed “adoptable”.
Carina du Toit of the centre told the court the matter stemmed from several calls she had received from parents, step-parents and legal practitioners who had been turned away by the court when seeking to apply for adoption by a step-parent.
Du Toit referred to two cases. The first was that of a four-year-old boy whose father had abandoned him. His mother remarried and her new husband wanted to adopt the child. But the Children’s Court turned them away as the child had a guardian and was therefore deemed not adoptable.
The other case was of a 14-year-old, who wanted her stepfather to adopt her. It was said staff at the Children’s Court appeared irritated by the attempt to adopt the teenager as they deemed it “legally impossible”. The teenager is concerned that if something happens to her mother, the authorities will remove her from the care of her stepfather as he has no legal standing regarding her.
The judge said it appeared Children’s Court officials deemed these children not adoptable.
“The approach appears to be that a child who has a guardian does not fall within one of the categories of section 230(3) of the Children’s Act and is therefore not adoptable. As a result a child living safely with an adequate parent is excluded from being adopted by a step-parent to whom the child’s parent is married or living with in a permanent domestic life partnership.”
The interpretation and application of this section were, in his view, incorrect, the judge said. Where the non-custodial biological parent consented to the adoption of the child by the spouse or life partner of the custodial parent, the child was adoptable, he said. This was also the case where the biological parent had abandoned the child or had had no contact with the child for at least three months.
The judge said the section did not contain a limitation that a step-parent might adopt a child only if the child’s non-custodian parent was no longer alive. Therefore it was in order for a step-parent to adopt a child if the non-custodian parent consented to the adoption, had not had contact with the child for three months or if the whereabouts of that parent could not be established.
The Children’s Court was obliged to act in the child’s best interests and should – except where there were valid reasons not to – rule that granting of an adoption order in favour of the step-parent would not terminate the responsibilities of the child’s care-giving parent.