Cape Town - Jugment has been reserved in the matter involving the Women’s Legal Centre Trust’s (WCL Trust) application to the South Gauteng High Court to have the Social Development Department’s conduct declared unconstitutional after it allegedly unlawfully interfered in two adoption processes.
Arguments in the matter concluded on Thursday, and were heard virtually by Judge Fiona Dippenaar.
Centre for Child Law advocate Morgan Courtenay, who had made submissions as an amicus curiae, or friend of the court, said that sections of the Children’s Act relating to cross-cultural adoptions, interpreted by the social development department, had been done incorrectly.
“What these guidelines require or what they state is that cross-cultural adoptions should be considered as a second option when prospective adoptive parents sharing the same culture with the adoptable child, could not be found to adopt the child.
“In other words, priority must be given to the same-culture adoption as it resembles a natural family that adoption is intended to create for the child…Now there are two things that concern us in respect of that. The first is the use of the word ‘natural family’. What is a ‘natural family’? The problem is that the department wants to pigeon-hole where children should go under the rubric of culture and language. What they inadvertently are doing is creating the system that apartheid government had tried without success and that is segregation, to the exclusion of others. It can never be that that is the basis on which we decide as a paramount consideration to place a child in those circumstances,” said Courtenay.
Courtenay further submitted that “there is already a problem with abandonment in the country” and “uprooting and uplifting (adopted) children causes further harm”.
“The reality is that this will happen to the next child who hasn't had the good fortune of being linked up with lawyers and who doesn't have the means to fight the department. And it will send a strong message to prospective adoptive parents that (they should be) ‘prepared that if you want to adopt, you are going to be given the run-around and the child might be snatched away from you in a couple of years’. This cannot happen. If the adoption system is to function effectively and efficiently, it must be done in a streamlined manner,” said Courtenay.
In this matter, both minor children have been in the uninterrupted care of their prospective adoptive parents for more than three years.
The WLC Trust has argued that the department has continued to undermine the rights of the mothers - who were both aged 23 and 27 at the time - to make decisions about their reproductive health and rights.
They also argue that the department was in breach of the mothers’ rights to dignity, privacy and bodily and psychological integrity, as well as the minor children’s rights to have their best interests held paramount.
Cape Times