Stuart Hess
A British couple are attempting to declare a section of the South African Child Care Act unconstitutional because it prohibits them from adopting a South African child.
Sarah and Benedict Fitzpatrick have been supported by the Child Welfare Society of South Africa in their challenge to Section 18 (f) of the Act.
The Fitzpatricks, residents of the upmarket Cape Town suburb of Constantia, have been trying to adopt a baby boy despite a provision in the Act prohibiting foreigners from adopting local children. They became the baby boy’s foster parents in November last year. The child, who will celebrate his first birthday on Monday, cannot be named in order to protect his identity.
According to papers filed in the Cape High Court for an application for a curatorship this week, the child was ”wheezey” and required medication when the Fitzpatricks met him for the first time.
He was dressed in a hospital nightgown and had no personal belongings. The child’s biological mother lives in the bush near Grassy Park.
The Fitzpatricks allege in their application that the mother’s first four children were removed from her custody ”because she failed to provide them with the requisite care and attention and, in fact, neglected them”. Another child born in 1993 is in the care of the mother’s aunt.
The couple claim that Section 18 (f) of the Act appears to be in conflict with the Constitution which emphasises that the child’s interest be of ”paramount importance in every matter concerning the child”.
Sarah Fitzpatrick says in her affidavit that it was suggested to her to take the child as her foster child to the United Kingdom and adopt him there after 18 or 24 months. However, this would entail her living apart from her husband.
In its affidavit, the Child Welfare Society strongly recommends that the baby be adopted by the Fitzpatricks. ”It has been the experience of the Child Welfare Society that Section 18 (f) serves no real or useful purpose and simply places an obstacle in the path of social workers who are seeking to further the best interests of the children for whom they are obliged to care,” said social worker Janine Kleynhans.
The Fitzpatricks moved to Oklahoma in the United States in November 1994 and during their two-and-a-half years there fostered 10 infants, some for as long as 15 months. Two of the infants were later adopted and the others were placed in proper care.
The couple moved to South Africa in 1997. Shortly after their arrival they contacted the Child Welfare Society to discuss the possibility of fostering South African children.
Before fostering the little boy, the couple also cared for a set of twins who were later placed with an adoptive mother.
The Fitzpatricks have four children from their own marriage. However, they want the baby boy as their own. ”His mother and father have displayed absolutely no interest in him and the mother in particular is not concerned with what would be in the best interests of the child.
”We on the other hand, truly care for [him] and wish to act only in his best interests,” they said.
An advocate at the Cape Bar, Dirk Uijs, has been appointed as a curator of the child.