DEPARTMENT OF SOCIAL DEVELOPMENT REQUESTED TO HAVE A POLICY POSITION ON INTER-COUNTRY ADOPTIONS

• The Department of Social Development in South Africa has been tasked by Parliament to establish a national policy on intercountry adoptions, as several countries are reconsidering their engagement with the programme.
• Countries like the Netherlands, Norway, and Denmark have already signalled their intent to withdraw or reassess their participation in intercountry adoptions with South Africa, due to concerns about potential irregularities and ethical issues.
• Since the legalisation of intercountry adoptions in 2000, South Africa has been guided by the Hague Convention’s principles. However, with emerging challenges and international trends, Parliament is also pushing for a clear policy on baby savers and the rights of unmarried fathers.

The Department of Social Development has been requested by Parliament to develop a national position on intercountry adoptions. This follows recent moves by several countries to reconsider or discontinue such programmes.

The Netherlands has announced its intention to phase out intercountry adoptions with South Africa, with an official update expected next month. Norway has already ceased working with South Africa, while Sweden is set to visit in October to discuss its position. The Department also anticipates a possible withdrawal by France, following the departure of the previous Head of Central Authority. Denmark, too, is considering its withdrawal, although this has not been finalised.

This trend is not unique to South Africa; other countries are facing similar challenges. Many adoptees have discovered inaccuracies in records or evidence of illegal adoptions, which has prevented them from finding answers about their origins and identities. There is a growing acknowledgment that during the history of intercountry adoption, serious structural abuses have occurred, with some countries and intermediaries having been aware of these issues since the 1960s.

As a result, there is a noticeable decline in interest from countries in pursuing intercountry adoptions.

History of Intercountry Adoptions

Before the year 2000, South Africa did not permit intercountry adoptions. Section 18(4)(f) of the Child Care Act prohibited the adoption of South African children by non-South African citizens.

This changed following the case of Minister of Welfare & Population Development vs Fitzpatrick, where the Constitutional Court found Section 18(4)(f) of the Child Care Act unconstitutional, as it did not allow for the fulfilment of the “best interests of the child” principle. As a result, intercountry adoptions began in 2000 when the Constitutional Court’s order came into effect.

South Africa then acceded to the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (29 May 1993). In December 2003, the Convention was used to draft Chapter 16 of the Children’s Act 38 of 2005.

The Convention includes basic principles that require countries to:

• Establish a Central Authority to regulate intercountry adoptions,
• Implement structures to prevent child trafficking,
• Develop a system for accrediting child protection organisations (CPOs),
• Prevent inappropriate financial gain, and
• Ensure the recognition of adoption orders in both countries.

The purpose of the chapter on intercountry adoptions was to give effect to The Hague Convention, provide for the recognition of certain foreign adoptions, find fit and proper prospective adoptive parents for adoptable children, regulate intercountry adoptions, and promote and facilitate international co-operation between countries regarding intercountry adoptions.

Looking Ahead

Parliament has also requested the Department of Social Development to develop policy positions on baby savers and the traditional aspects of parental rights and responsibilities for unmarried fathers. This indicates a broader scope of review beyond just intercountry adoptions, reflecting a comprehensive approach to child welfare and protection in South Africa.