Pretoria - The Children’s Act clause dealing with the adoption of children by a step-parent has come under the spotlight in the Pretoria High Court.
The Centre for Child Law has asked the court to clarify certain sections of the act to facilitate the process whereby a step-parent may apply to the Children’s Court to adopt.
The law was vague and caused confusion, it was argued.
Many people who wanted to adopt were being turned away by the Children’s Court because of the narrow interpretation of section 230(3), which dealt with whether a child may be deemed “adoptable”.
Carina du Toit, an attorney at the centre, said this act “suggests” that the adoptable child must be one who does not have a guardian.
“On the face of it, this seems to exclude a child living safely with an adequate parent,” she said in court papers.
As the act stands, a child may be adopted by a step-parent, but unless a post-adoption agreement is confirmed by the court, all responsibilities and rights afforded to the biological parent are terminated.
Du Toit said the courts were therefore advising people that the adoption would result in a step-parent having full parental responsibilities and rights and the biological parent none.
The court was asked to declare that these sections of the Children’s Act did not preclude a child from being adoptable in instances where the child had a guardian and where the person seeking to adopt was the spouse or permanent life partner of the child’s guardian.
The centre also asked the court to declare that the act did not automatically terminate all the parental responsibilities and rights of the guardian whose spouse or partner sought to adopt the child.
Du Toit said the matter arose from numerous calls and mails she had received in recent months from parents and step-parents who were turned away by the Children’s Court when they applied for a step-parent adoption.
They had all in effect been barred from accessing these courts and said the officials refused to enrol their matters. To date, Du Toit had complaints from 16 parents and the situation had a profound impact on the rights of the children concerned.
Du Toit mentioned two cases, one of them involving a five-year-old boy whose father abandoned him when he was a baby. The mother holds sole guardianship and she met her new husband when the boy was 15 months old. Her new husband wants to adopt the boy and they headed to the Children’s Court.
The clerk of the court told them an adoption application would in effect terminate all parental responsibilities and rights the biological mother had regarding the child.
Her husband studied the provisions and told the magistrate that in his view, if all the sections were read together, a step-parent could adopt without terminating the rights of the biological parent. The magistrate rejected this view.
In a similar case a 14-year-old dearly wants her stepfather to adopt her. She told Du Toit that apart from loving him, she also wants to feel she “belongs”.
But the doors were also shut in their faces. The staff at the court refused to give them the documents to start the adoption process. They were also told that should they proceed, the mother would lose her rights regarding the teenager.
The teenager said the staff came across as unhelpful and irritated when the family refused to accept it was “legally impossible” for her stepdad to adopt her. “All she wants is for the law to accept her stepdad is her father as she’s concerned if something happened to her mother, someone will remove her from ‘her dad’.”
The minister of social development did not oppose the application. Judgment was reserved. - Pretoria News