Mungo Soggot
THE adoption of kidnap victim Timothy Funnell could have breached a key clause of the Child Care Act, laying the grounds for a police investigation.
The child’s adoptive parents – Barry and Julia Funnell – who live in Malawi as Baptist missionaries. They registered a Pretoria address when they adopted Timothy in Pretoria North, but then returned to Malawi with him.
Section 18 of the 1983 Child Care Act says at least one prospective adoptive parent has to be a “South African citizen resident in South Africa”.
Apparent irregularities are emerging as Timothy’s adoptive and natural parents continue their custody struggle. Timothy was mysteriously kidnapped in Malawi two weeks ago and has since been returned to the Funnells.
Magistrate PJ Bisschoff of Pretoria North, who authorised the adoption, says he believes he had “jurisdiction to entertain the adoption”.
He declined to comment further, as the adoption is being investigated by the police. The investigation follows a complaint from Peter Soller, attorney for the child’s biological father, Lawrie Fraser.
Soller claims the magistrate had no jurisdiction as the child was also not born in his magisterial district.
In a letter to Bisschoff – a copy of which was sent to police commissioner George Fivaz – Soller says the adoption was void from the start.
Soller says it has taken Bisschoff 14 months to disclose key facts about the adoption. The child was “not resident in your jurisdiction when he was taken to Pretoria and then transferred to a rural court and then given an address simply for the purpose of conferring jurisdiction on your court”.
Bisschoff wrote to Soller last week that the child was registered at an address in Montana, Pretoria. He wrote another letter this week saying that he had made a “bona fide error” and that the Montana address was inaccurate. He refused to divulge the correct address.
Bisschoff warned Soller in his second letter that he reserved his right to take legal action against Soller and Fraser for their “personal attack on my personality and professional status”.
Legal experts say the most important term in the Act is that the proposed adoption should “serve the interests and conduce to the welfare of the child”.
This clause could have allowed Bisschoff to question whether Barry Funnell, a paraplegic, was a suitable parent. One lawyer says though Timothy’s natural mother, Adri Naude, had selected the Funnells as adoptive parents, the clause could have allowed the magistrate to set aside the adoption.
Deon Roder, the attorney representing the Funnells and Naude, says he does not understand why Soller is pursuing this line of attack.
He says the Pretoria Supreme Court, which overturned the adoption last year, avoided dealing with the validity.
The constitutional court has given the government two years to amend adoption legislation to allow unmarried fathers rights over their children.