International adoptions of South African children are in a state of legal limbo, with legislation to give effect to an international convention signed in 2003 not yet enacted.
”In effect, we have a legal anomaly. We have acceded to a legal convention, but everything that we are doing is ultra vires because it’s not part of our law … We are operating extra-judicially, can you imagine the implications?” asked Susan Abro, chairperson of the family-law committee of the Law Society of South Africa.
She was talking about the country establishing a central adoption authority under the Hague Convention. The convention regulates intercountry adoptions to prevent child trafficking and illegal adoptions.
However, the Children’s Bill, which will set up the authority, has not yet been enacted.
Abro said the Law Society wants lawyers to be part of the process of adopting children — now almost exclusively the domain of social workers — because it is a legal process involving a change in status for the child and the adoptive parents.
”It is absolutely fundamental for lawyers to be part of the process to best ensure the interests of the child,” she said.
Debbie Wybrow, an attorney involved in intercountry placements, said the issue of adoptions is a ”huge political hot potato”.
Some in government think that considering international adoptions is an admission that South Africa cannot take care of its own children.
”[But] there are too many children [to adopt] … it shouldn’t be seen as a failure,” she said.
Orphan audit
The Department of Social Development began an audit in March to determine the need for intercountry adoptions.
The number of local, mostly black orphans, estimated in the hundreds of thousands, increases yearly as Aids takes its toll on the adult population.
”We would like to assess if enough efforts are being made by the adoption organisations to recruit adoptive parents within the country … before considering intercountry adoptions,” said Dr Maria Mabetoa, chief director of the children, youth and family directorate at the department.
She said international adoption should be a last resort.
Mabetoa said South Africa now works with 11 foreign countries. None of these is in Africa, because most of them have not signed the Hague Convention.
Mabetoa said because HIV/Aids orphans many children, the central authority is preparing guidelines to prevent discrimination against HIV-positive babies.
Lynette Schreuder, a director at Child Welfare South Africa, said the Department of Social Development will be the central authority facilitating intercountry adoptions.
The central authority will accredit organisations to conduct the actual adoptions with countries that have agreements with South Africa, such as Sweden, Finland, Norway, Belgium and Germany.
Schreuder said while there is no moratorium on international adoptions, the government is reluctant to enter into new arrangements with other countries.
”If we have exhausted all other avenues for trying to place children in this country, then children should be adopted by overseas parents. We believe this is a viable option, so that children have a family.”
Schreuder said there are opposing views on ”transracial” or ”transcultural” adoptions.
Child Welfare SA’s position is that one should not consider race, colour or creed, but rather the child’s right to a family. The placement of the child should also follow correct procedures.
Concern about lack of resources
Schreuder said the organisation has some concerns about the central authority, which might lack resources to perform its task effectively.
”Many organisations had to disband their adoption units or scale down because of a lack of resources. If the central authority refers cases to accredited NGOs, they [the government] have to finance them to do the work.”
Schreuder said by accrediting organisations, the authority will also be able to monitor unscrupulous agents.
She said Child Welfare SA is against lawyers becoming involved in adoptions. Schreuder said social workers are experts in adoption work and can effectively protect children’s rights. There is ”no role” for attorneys.
Mabetoa, however, said the department supports limited involvement of lawyers.
”The department does not agree with full control of an adoption placement by a legal practitioner outside an accredited or designated NGO delivering child-protection services.”
Mabetoa said lawyers’ clients are usually the adoptive parents who pay huge fees, and sometimes the lawyers do not act in the child’s best interests.
She said the central authority will only accredit child-protection organisations to perform local and international adoptions. Lawyers should belong to such organisations if they want to be involved in the adoption process. — Sapa