When a delay is a denial!

National Adoption Coalition v Head of Department of Social Development for KwaZulu-Natal NO 2020 (4) SA 284 (KZN) (“National Adoption Coalition case”

By Dante Adams, Fasken

In the Charles Dickens novel, Great Expectations, young Pip remarks that: “In the little world in which children have their existence, whosoever brings them up, there is nothing so finely perceived and so finely felt as injustice.”1

Unfortunately many children in South Africa have felt this injustice through abandonment, abuse and neglect and are left with little hope of experiencing love, joy and the stability of a family. Adoption plays a role in alleviating this injustice. On 24 February 2020, the High Court in Durban granted an order declaring that the Head of Department for Social Development, KwaZulu-Natal (HOD) had violated section 28 of the Constitution.2 The judgment, by Judge Seegobin, has a significant effect on the adoption of children.

Role of the Department of Social Development (DSD) in the Adoption Process

  • The DSD plays a significant role in the adoption process in South Africa as articulated in the Children’s Act 38 of 2005 (“the Act”).
  • Section 239(1) (d) of the Act sets out the statutory requirements for an adoption application and states: “An application for adoption order should be accompanied by a letter by the provincial head of social development recommending the adoption of the child (“section 239 letter”).”
  • The section 239 letter provides oversight in the adoption process to prevent child trafficking and abuse.
  • The Act does not specify what considerations the DSD should take into account when recommending adoption, resulting in each province adopting its own process to evaluate adoption applications.
  • The DSD in KwaZulu-Natal implemented a process which required each adoption application to be presented before a panel; panellists would scrutinise each adoption application before providing a section 239 letter. The process led to undue delays in adoptions in KwaZulu-Natal. Statistics indicate that a total of 174 adoptions took place in the province over a seven-year period, just 5% of the national average.3

NACSA instituted proceedings against the HOD and the DSD to declare this adoption process constitutionally invalid because it did not promote the best interests of the child.

Court Findings:

  • The inordinate delays caused in finalising the adoption process by the HOD and DSD violated s 28 of the Constitution, and the paramountcy principle4. The court specifically held that the two main causes of the delays in finalising adoptions in this province were 1) the composition of the adoption panel; and 2) the actions of the HOD.
  • The panel members were not “suitably qualified and experienced to deal with adoption matters and the complexities that may arise from time to time”5, and the panel meetings were “erratic” and uncertain.
  • The HOD and DSD did not understand their constitutional obligations in the adoption process – the duty to expedite the process in the best interests of the child6.
  • The DSD and HOD took irrelevant considerations into account when considering an adoption application.
  • The adoption process followed by the HOD and DSD resulted in undue delays and caused serious long-term psychological trauma, both for consenting parents and the child, and were not in the best interests of the child.
  • The court ordered a supervisory order in which the HOD and DSD were to process the backlog of adoption applications within 30 days and to strictly adhere to the 30-day turnaround time articulated by the National Department for all future applications.

 

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