The events of a single day may make all the difference to Lawrie Fraser’s battle for his adopted child, reports Justin Pearce
The adoptive parents of the infant son of Lawrie Fraser and Adriana Naude took the child out of South Africa only a day after the adoption was secured, according to a letter submitted to the Transvaal Supreme Court on Wednesday.
The letter prompted Judge H Preiss to postpone Fraser’s application to overturn the adoption order made by the Pretoria North Children’s Court in February, which put the baby into the hands of a couple whose identity and whereabouts are known only to Naude and to the social worker who organised the adoption. Even before the child was born on December 12 last year, Fraser began a legal battle to oppose Naude’s decision to put up the child for adoption, on the grounds that he, as the child’s natural father, should have a say in the matter.
Fraser’s case cites as respondents the Pretoria North court, Naude and the unnamed adoptive parents. According to the letter, submitted by Pretoria social worker Riekie van der Berg, who organised the adoption, there was sufficient time to inform the adoptive parents of the supreme court case, in which they were clearly interested parties and deserved to be informed. The letter says the couple left South Africa with their newly adopted child on February 24, and were in a place where they could not be contacted telephonically.
Fraser and his attorney, Peter Sollen, say they have received anonymous phone calls which claimed that the child was in Malawi, and that his adoptive father is a paraplegic missionary who works there as a dentist.
When the Mail & Guardian tried to contact Van der Berg on Wednesday, the paper was told she was out of town and could not be contacted.
Naude too has avoided contact with the media in recent weeks. Her mother Lenie and her brother Stephan, who were present at court on Wednesday, would not comment on the whereabouts of the adoptive parents, but were adamant that it would be in the child’s best interests to remain with the adoptive parents.
Fraser and his legal representatives are sceptical about the claim that the child has been taken out of the country, believing that this could be a red herring designed to discourage Fraser’s efforts to have the adoption overturned.
If the adoptive parents did indeed remove the child from South Africa on February 24, it raises the question of how the couple managed to obtain travel documents for the baby between the granting of the adoption on February 23 (a Friday) and their departure on Saturday. According to the letter, the couple left South Africa for two years for work purposes, and there are doubts as to whether they are citizens or even permanent residents of South Africa.
On Wednesday the supreme court appointed advocate Brenda Neukircher as curator to represent the interests of the child in court. Neukircher has been instructed by the court to obtain information about the adoptive parents — including their nationality and whereabouts — and to present it before the court, though their names may still be kept secret.
The case is due to continue on May 7. Fraser’s challenge to the adoption order is two- pronged. His case invokes the common-law principle of audi alteram partem, which grants the right for all interested parties to have a say in a case, a right which he contends was denied him in the children’s court decision.
The other line of argument challenges the Child Care Act, which puts responsibility for children born out of wedlock solely in the hands of the mother. This, Fraser’s lawyers contend, constitutes unfair discrimination between the mother and the father of an illegitimate child, and between fathers who were married to the mothers of their children at the time of birth, and those who were not.
They point out the absurdity of a situation where a father who married his child’s mother but abandoned the mother and child at birth retains a say in the child’s future, while an unmarried father who participates in the child’s upbringing has no rights at all.
In the United States and Canada, countries which have similar human rights provisions to South Africa, courts have in recent years overturned laws which make a mother solely responsible for a child born out of wedlock.
In a country like South Africa, where a large number of marriages conducted under African customary law or according to the rites of non-Christian religions have no legal standing, a change to the law regarding unmarried fathers will have far-reaching consequences.
A new draft Bill which was due to come before Parliament this year does not guarantee relief for people in Fraser’s case, since it allows a court to grant custodianship of a child to an unwed father, while mothers continue to have automatic sole custodianship of a child born out of wedlock. Fraser’s lawyers believe the Bill, like the present Act, falls foul of the Constitution’s non-discrimination provisions since it distinguishes between the rights of the mother and those of the father.