Abstract
This article analyses the intercountry adoptions provisions contained in Chapter 16 of the Children’s Act 38 of 2005, against the standards of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoptions, 1993. After a brief overview of the two leading South African cases on intercountry adoption, which stress the importance of having this institution statutorily regulated, the author proceeds to analyse the most significant clauses pertaining to intercountry adoptions contained in the Act, in order to identify the strengths and weaknesses in this new statutory framework. The author concludes that the Children’s Act is a dramatic improvement on the current regime of intercountry adoptions and that it has the potential to make this institution work in the best interests of children.
Highlights
The 1993 Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption is the most comprehensive international document regulating intercountry adoptions
Following Fitzpatrick1 and acknowledging the insufficient protection afforded to children involved in intercountry adoptions, in 2003 the South African government ratified the Convention
The Constitutional Court confirmed a finding of unconstitutionality pertaining to section 18(4)(f) of the Child Care Act 74 of 1983 which prohibited the adoption of South African children by foreigners
Summary
The 1993 Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption (hereafter "the Convention") is the most comprehensive international document regulating intercountry adoptions. Following the Fitzpatrick decision in 2000, intercountry adoptions have become legal in South Africa In this case, the Constitutional Court (hereafter "the CC") confirmed a finding of unconstitutionality pertaining to section 18(4)(f) of the Child Care Act 74 of 1983 (hereafter "the CCA") which prohibited the adoption of South African children by foreigners. The intention of this provision is to enhance the protection of children removed from the Republic by non-South African guardians, it raises a few problems It equates all applications for guardianship by foreigners with intercountry adoptions, regardless of the applicants' residence. Intercountry adoption services can be provided only by the Central Authority and accredited agencies in both Convention and non-Convention adoptions.37 By taking this approach, the CA improves the standards of the Convention by offering similar protection to children involved in Convention as well as non-Convention adoptions Intercountry adoption services can be provided only by the Central Authority and accredited agencies in both Convention and non-Convention adoptions. By taking this approach, the CA improves the standards of the Convention by offering similar protection to children involved in Convention as well as non-Convention adoptions
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