Abstract
The article traces the historical development of the legal concept of adoption from early civilization to present day South African law. The requirements and consequences of the practice of adoption changed with time, and with the waning of the popularity thereof, adoption as a legal concept was unknown in Roman-Dutch law – the common law of South Africa .During the early 1900‟s increasing numbers of informal “adoptions” taking place in South Africa led to the promulgation of the Adoption of Children Act 25 of 1923. Where conducive to the welfare of the child, adoption was permitted. However, the political ideology of the time in South Africa had a major influence on adoption as a legal institution, with the consequence that the considerations of the welfare of the child were superseded by the ideology of racial segregation. Post constitutional democracy led to the securing and protecting of basic human rights, not least of all within the private context of ”family”. Ratification of international instruments which made provision for adoption, together with the dawning of the constitutional era in South Africa saw the child as the bearer of his or her own rights. In terms of our Constitution, every child was guaranteed the right to family care or parental care or appropriate alternative care. The article focuses on the development and evolution of adoption to its present-day status.
Highlights
The long history of adoption as a legal institution makes it apparent that it is not a modern usage
The article traces the historical development of the legal concept of adoption from early civilization to present day South African law
The requirements and consequences of the practice of adoption changed with time, and with the waning of the popularity thereof, adoption as a legal concept was unknown in Roman-Dutch law – the common law of South Africa .During the early 1900‟s increasing numbers of informal “adoptions” taking place in South Africa led to the promulgation of the Adoption of Children Act 25 of 1923
Summary
The long history of adoption as a legal institution makes it apparent that it is not a modern usage. Adoption as a legal act, creating a legal relationship between a parent and a child, was unknown to the () Cape of Good Hope This position was confirmed in Robb v Mealey’s Executor,[80] where the court held that adoption was not recognized as a means of transferring parental power from the natural parent to another person. The Children‟s Act 33 of 1960 was assented to on 7 April 1960 and came into operation on 14 April 1960.121 Some changes were made to the existing law in South Africa relating to adoption, but the basic policy of its predecessor was retained – namely, that adoption was to be considered where it was in the interests of the child and where it would be conducive to the welfare of the child. The assessment of the suitability of a particular applicant weighed heavily with the commissioner tasked with making a decision on adoption
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