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Adoption of minor child by step parent


The recent decision in the Gauteng Division of the High Court, Pretoria, of Centre for Child Law (Applicant) and Minister of Social Development (Respondent), confirmed that step parents can now adopt minor children: Centre for Child Law v Minister of Social Development (21122/13)

Child maintenance and education expenses

The Applicant in this matter was the Centre for Child Law (CCL) established by the University of Pretoria, and was registered as a law clinic with the law strictly of the Northern Province. The aim of the CCL is to promote the best interests of a child in South Africa. The CCL had been approached by parents, step-parents and practitioners who had been turned away by the Children’s Court when seeking to apply for adoption by a step-parent.

From the information received by the attorney of the Applicant from parents, step-parents and practitioners, the basis upon which officials at the Children’s Courts turn away prospective applicants for adoption, is that they consider the child not to be adoptable because of section 230(3) of the Children’s Act 38 of 2005. The officials at the Children’s Court had the view that a child who has a guardian does not fall under one of the categories of section 230(3) and is therefore not adoptable. A child living safely with an adequate parent was therefore excluded from being adopted by a step-parent to whom the child’s parent is married or living with, in a permanent domestic life-partnership. The court in this case found the interpretation of this section to be incorrect.

Section 230(3) reads that a child is adoptable if:
a) the child is an orphan and has no guardian or caregiver who is willing to adopt the child;
b) the whereabouts of the child’s parent or guardian cannot be established;
c) the child has been abandoned;
d) the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; or
e) the child is in need of a permanent alternative placement.

The court in the end declared that section 230(3) of the Children’s Act 38 of 2005 does not preclude a child from being adopted in an instance where the child has a guardian and the person seeking to adopt the child is the spouse or permanent domestic life-partner of that guardian.

The court also declared that section 242 of the Children’s Act does not automatically terminate parental responsibilities and rights of the guardian of a child when an adoption order is granted in favour of the spouse or permanent life-partner of that guardian, having regard to the discretion which section 242 affords the court to order otherwise.

The court also ordered that the Minister of Social Development publish the order in the Government Gazette.

In my view the above decision is the correct one. It is also in line with section 28(1)(b) of the Constitution. This section provides that every child has the right to family care or to appropriate parental care, or to appropriate alternative care when removed from the family environment.

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