The Constitutional Court will this week hear argument that could dramatically change the system for foreigners to adopt South African children.
The case for the adoption of baby R by an American couple will be argued on Tuesday in Braamfontein after the Johannesburg High Court and Supreme Court of Appeal dismissed attempts by the couple to obtain a custody and guardianship order.
By order of the Constitutional Court, the names of baby R, the American couple and her foster parents may not be published.
The American couple, married for over 17 years with six biological children of their own, want to take baby R to their home in Virginia and adopt her there.
The story of baby R, who is now two and a half years old, has gripped South Africa since she was found abandoned in a bucket in a veld near Roode-poort more than two years ago.
The police were unsuccessful in their attempts to locate baby R’s family and she was placed in foster care with a foster mother who runs a haven for abandoned children. The American couple and baby R’s foster parents belong to the same church in the United States and maintain contact.
During July 2005 the couple visited South Africa and became attached to baby R. They approached a social worker and were advised by Debbie Wybrow, an attorney, to apply for a custody and guardianship order through the high court, rather than to follow the accepted route of an application to the Children’s Court.
This approach was rejected by Judge Lewis Goldblatt in the Johannesburg high court, who held that it was not for the high court to decide what was in the best interest of the child. This had to be done in accordance with the adoption procedures set out in terms of the Child Care Act.
Three judges of the Supreme Court of Appeal (SCA), who constituted the majority, upheld Goldblatt’s judgement.
Senior counsel Jeremy Gauntlett will on Tuesday, however, ask leave from the court to argue that both Goldblatt and the SCA majority were wrong and that foreign couples should have a choice of approach.
He will argue constitutionality on the following matters:
- Whether the SCA gave ‘paramountcy to the best interests of the child†in accordance with the Constitution;
- The application of certain international law instruments and domestic legislation as if they are binding law by the SCA; and
- The ‘limitation†of the high court’s jurisdiction as upper guardian of all minor children by the SCA.
The application is opposed by the Centre for Child Law (CCL) at the University of Pretoria as amicus curiae (friend of the court) and the department of social development.
In their submissions, the CCL and director general of social development Vusi Madonsela argue that the appropriate route to achieve inter-country adoptions is through South Africa’s Children’s Court.
Madonsela accuses the American couple and their lawyer of ‘bypassing†procedures ordained by the legislature, of ‘forum shopping†and of ‘self-helpâ€.
According to the CCL, going through the Children’s Court properly safeguards the best interests of South African children generally, as well as the particular interests of baby R.
Referring to international instruments such as the United Nations Convention on the Rights of the Child, the Hague Convention and the African Charter on the Rights of the Child, the centre argues that an inter-country adoption should only take place if a child cannot be placed with a local family.
