Adoption and Interim Care Orders

The Children's Act 38 of 2005 ("the Act") provides for the protection of children who are in need of care and protection, while also regulating the permanent placement of children through adoption. Although a child may progress from temporary protective measures to adoption, these are separate legal processes governed by different provisions of the Act.

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Interim Care Orders

An interim care order is a temporary measure intended to protect a child while the Children's Court determines whether the child is in need of care and protection in terms of Chapter 9 of the Act. Temporary Safe Care forms part of this process and provides emergency accommodation for a child pending the outcome of the Children's Court inquiry.

The process is as follows:

A designated social worker is notified of, or identifies, a child who has been abandoned, abused, neglected or is living in circumstances that may place the child at risk. The social worker assesses the child's circumstances to determine whether immediate intervention is required.

Where the child is in imminent danger, the social worker may remove the child and place the child in Temporary Safe Care. Depending on the circumstances, the removal may take place in terms of a court order under section 151 or, in urgent cases, without a court order under section 152. Where a child is removed without a court order, the parent or guardian must be notified within 24 hours.

If the child is removed without a court order, the matter must be brought before the Children's Court on the next court day. The court considers whether the removal was justified and whether the child should remain in Temporary Safe Care pending the inquiry.

The Children's Court directs a designated social worker to investigate the child's circumstances and prepare a report for the court. The report considers whether the child is in need of care and protection and contains recommendations regarding the child's future care. The report is generally submitted within 90 days.

Pending the completion of the investigation, the Children's Court may make an interim care order authorising the child's continued placement in Temporary Safe Care or make any other appropriate interim order.

Once the investigation has been completed, the Children's Court makes a final order. Depending on the circumstances, the child may be returned to the care of a parent or guardian, placed in foster care or another form of alternative care, or made subject to any other order that is in the child's best interests.

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Adoption:

Unlike an interim care order, adoption permanently transfers all parental responsibilities and rights from the biological parent or guardian to the adoptive parent. Once an adoption order is granted, the parental responsibilities and rights of the biological parent or guardian come to an end, subject to the provisions of the Act. Adoption is governed by Chapter 15 of the Act and is subject to its own procedural requirements.

The process is as follows:

A prospective adoptive parent approaches an accredited Child Protection Organisation or the Department of Social Development to attend an orientation session and submit an application.

The prospective adoptive parent undergoes an assessment conducted by a designated social worker. This includes home visits, interviews, medical assessments, financial assessments, and screening against the National Child Protection Register and the National Register for Sex Offenders.

If found suitable, the prospective adoptive parent is approved and may be matched with a child who is legally adoptable. Matching takes place through the Register on Adoptable Children and Prospective Adoptive Parents (RACAP).

Where consent is required, notice must be served on every parent or guardian whose consent is necessary. Consent by a parent or guardian is recorded in Form 61, while the consent of a child who is 10 years or older, or younger if sufficiently mature to understand the implications of adoption, is recorded in Form 62. Consent may be withdrawn within 60 days, and the Children's Court cannot grant an adoption order before the expiry of that period. Consent is not required in the circumstances set out in the Act, including where a parent has abandoned the child, cannot be traced, has been deprived of parental responsibilities and rights, or fails to respond to the prescribed notice.

A designated social worker compiles a report for the Children's Court dealing with:

1. whether the child is adoptable;
2. whether the proposed adoption is in the child's best interests;
3. the child's medical information and relevant background; and
4. the suitability of the prospective adoptive parent or parents.

An application for an adoption order is lodged with the Children's Court. The application must be accompanied by the social worker's report, the recommendation of the provincial head of the Department of Social Development in terms of section 239 of the Act, and the prescribed consent forms where applicable.

The Children's Court considers all the evidence before deciding whether the adoption complies with the Act and whether it is in the child's best interests. Where relevant, the court may also consider the child's cultural, religious and linguistic background.

Although there are no court fees for an adoption application, certain prescribed professional fees or expenses may be payable, including fees charged by an accredited Child Protection Organisation.

Once the adoption order has been granted, it is submitted to the Department of Home Affairs so that the adoption can be registered and, where applicable, a new birth certificate reflecting the adoption and any approved change of surname can be issued.

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Two Distinct Processes

Although a child may move from Temporary Safe Care to adoption, the two processes are not linked in law. Interim care proceedings under Chapter 9 and adoption proceedings under Chapter 15 serve different purposes, are governed by different provisions of the Act and follow different procedures.

An interim care order is a temporary protective measure while the Children's Court determines whether a child is in need of care and protection. Adoption, on the other hand, permanently creates a new legal parent-child relationship. An interim care order does not, by itself, provide a basis for adoption, nor does the institution of adoption proceedings justify the granting of an interim care order. Each process must be followed in accordance with the provisions of the Children's Act.

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Article co-written by Daniela Bedford | Intern