a respect by 38oH9rUN

VIEWS: 23 PAGES: 21

									                                                                          1


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
                                                CASE NO: 1220/2004
In the matter between

LISA ADA SWART                                  Applicant

And

J.W. VORSTER N.O.                              First Respondent
E. DU TOIT N.O.                                Second Respondent
NIKO WHITE                               Third Respondent
CHARMAINE WHITE                                Fourth Respondent
ELOISE LOOTS                                   Fifth Respondent
MARGARETHA BEZUIDENHOUT                        Sixth Respondent
JUDY RUDD                                      Seventh Respondent
SUZETTE MARAIS N.O.                            Eighth Respondent


                                 JUDGMENT

PICKERING J:

On 28 May 2003 the applicant gave birth out of wedlock to a daughter, Angel.
On 11 February 2004 the first respondent, a commissioner of child welfare at
the Port Elizabeth Children’s Court, granted an order in terms of s 18 of the
Child Care Act 74 of 1983 (the “CCA”) whereby Angel was adopted by the
third and fourth respondents, a married couple.

Applicant now seeks an order calling upon the respondents to show cause
why:

      “1.    The adoption order granted by the first respondent at Port
             Elizabeth on 11 February 2004 in respect of the applicant’s
             daughter, Angel Swart, should not be reviewed and set aside;
      2.     The administrative actions of the first to eighth respondents
             referred to in the applicant’s affidavits should not be judicially
             reviewed in terms of the Promotion of Administrative Justice Act
             no 3 of 2000;
      3.     The third and fourth respondents should not be directed to
             restore the custody of Angel Swart to the applicant;
      4.     If any of the respondents oppose the application they should not
             be directed to pay the costs of the application.”
                                                                          2


First, second and eighth respondents are cited as respondents in their official
capacities as commissioners of child welfare. Third and fourth respondents
are cited by virtue of their being the adoptive parents of Angel. Fifth, sixth
and seventh respondents are accredited social workers within the meaning of
the CCA and are part of an adoption unit operating under the guidance of a
consultant.     Fifth and sixth respondents are employed by Procare, an
association of social workers in private practice.       Seventh respondent is
employed by Procare as a part-time counsellor.


It is applicant’s case, in essence, that her consent to the adoption of Angel
was never lawfully obtained in that the prescribed statutory procedures set out
in the CCA were not complied with, alternatively, that her alleged consent was
vitiated by the actions of fifth, sixth and seventh respondents.


The sequence of events leading up to the eventual granting of the adoption
order on 11 February 2004 is largely common cause. What is not common
cause are applicant’s reasons and motivations for her various actions during
this period.      In this regard applicant cast serious aspersions on the
professional conduct of fifth, sixth and seventh respondents. She alleged,
inter alia, that despite the fact that they were aware that she was not in a
position “emotionally or spiritually” to make any rational decision concerning
the adoption of Angel, they had misled, intimidated and pressurised her to
such an extent that her resistance had crumbled and she had acted to her
prejudice in performing certain actions which led to the adoption order being
granted.      These allegations were denied by the fifth, sixth and seventh
respondents who each filed an affidavit in answer thereto in which they stated
that they had acted in a professional manner throughout.


In the meantime, on 19 October 2006, an order was granted requesting the
family advocate, Port Elizabeth, to investigate whether the relief sought by
applicant in prayers 1 – 3 of the Notice of Motion was in the best interests of
the minor child and appointing Ms. Crouse as curator ad litem to represent the
minor child in the further conduct of the application. The family advocate duly
filed extensive reports including a report from an educational psychologist and
                                                                              3


family counsellor, Mr. Gerhardt Goosen. Ms. Crouse has also furnished a
thorough and helpful report and the Court is indebted to her for her assistance
in that regard as also for her appearance and submissions made at the
hearing of the matter. At the hearing Ms. Hartle, together with Ms. Laher,
appeared pro bono for the applicant and Mr. Scott appeared for third and
fourth respondents. The Court is indebted to them for their assistance in
arguing what is obviously an emotionally traumatic matter for both applicant
as well as the third and fourth respondents. There was no appearance for any
of the other respondents.


In her affidavit applicant set out in considerable detail her physical
circumstances and her state of mind at the time that she became pregnant
with Angel. At the same time as she was involved with Angel’s natural father
she was also involved in an intimate relationship with a married man, one
Paul, upon whom she relied for financial support.          She states that her
pregnancy threw her life and her relationships into turmoil.           Eventually,
shortly before her confinement, she made contact with sixth and seventh
respondents and moved, with her five year old daughter, into a home for
pregnant and unmarried mothers, known as Sisters Incorporated in Cape
Town.        Whilst there applicant had certain discussions with seventh
respondent concerning the possible adoption of her baby.              According to
applicant the issue of adoption arose more particularly because of pressure
exerted upon her by Paul. At some stage prior to giving birth applicant left
the home. It had been agreed, however, that she would contact seventh
respondent when she went into labour and she duly did so.              There is a
heated dispute on the papers as to whether or not applicant had agreed
immediately prior to the birth that the baby be put up for adoption upon her
birth. Be that as it may, as soon as Angel was born she was separated from
applicant.     It is common cause, however, that after five days applicant
advised sixth and seventh respondents that she definitely did not want Angel
to be adopted and she was therefore reunited with her on 3 June 2003.
Procare accordingly closed their file relating to Angel’s adoption.


During July 2003 applicant again came into contact with seventh respondent.
                                                                             4


According to her she was at that time in possession of a learner’s driver’s
licence which was due to expire on 18 August 2003.              It was, she said,
imperative for her to obtain her driver’s licence so as to be more marketable
as an employee. She could not get a booking for her driver’s licence test in
Cape Town but was able to arrange one in Pietermaritzburg. She had to
make arrangements for the care of Angel in the meantime and one means of
doing this was to have Angel placed in the care of a so-called kangaroo
mother during her absence. According to applicant seventh respondent was
prepared to help but only on the basis that applicant sign an “open” consent in
terms of s 18 (6) of the CCA for the adoption of Angel. These allegations are
denied by sixth and seventh respondents who aver that applicant in fact
advised them that she could not cope with Angel and had decided that it was
in her best interests that she be adopted.


Be that as it may, it is common cause that on 25 July 2003 applicant
appeared before eighth respondent at the Children’s Court, Bellville, where
she signed a consent to adoption in the requisite form (Form 12 of the
Regulations to the CCA published under GNR 26121 in GG 1054). In that
form applicant states that she consents to the adoption of Angel by “a person
or persons unknown to me.” The form further records that applicant was
informed that “she may withdraw this consent in writing before any
commissioner of child welfare at any time during a period of up to 60 days
after having given this consent” and also that she was “not entitled to be
present when the application for adoption is considered unless allowed to be
present in the interests of the child at the discretion of the Court.”


According to applicant she knew that what she was doing was “wrong” but
she stated that she did not use the facilities of Procare “in a deliberately
deceitful way.” She was, however, desperate to have Angel placed in the
care of the kangaroo mother whilst she went to Pietermaritzburg. At the time
of signing the consent she “already had it in mind to withdraw it.”


After her return from Pietermaritzburg she told sixth respondent that she
wanted Angel back and Angel was indeed restored to her custody on 25
                                                                           5


August 2003.     Sixth and seventh respondent confirmed that Angel was
returned to applicant because she advised them that she did not wish to
proceed with the adoption.      Procare’s file was then again closed.      The
adoption application filed in the Children’s Court was, however, never formally
withdrawn, it being the view of sixth and seventh respondents that should
applicant yet again change her mind concerning the adoption, that application
could, with applicant’s permission, be revived.


Matters, however, did not become any easier for applicant and eventually,
during November 2003, she contacted seventh respondent and told her that
she wanted to proceed with the adoption of Angel by a couple of whose profile
she approved. In consequence Angel was taken from applicant’s custody
and placed in the care of the same kangaroo mother with whom she had
previously been.

On 12 December 2003 applicant attested to an affidavit at the Children’s
Court, Bellville, in which she stated as follows:

       “I am the biological mother of Angel Swart born 28 May 2003.            I

       signed consent for her adoption on 25th July 2003 she has not been
       placed yet but I want the adoption to be finalised now. I understand
       that the 60 days have expired and that I don’t have any rights to
       change my mind any more. I believe that adoption will be in Angel’s
       best interests.”


Angel was placed in the custody of third and fourth respondents the same
day.

On or about 14 December 2003 applicant contacted fifth respondent and
informed her that she wanted Angel back. Fifth respondent advised her that
the affidavit signed by applicant had finalised the adoption process and that
applicant could not change her mind in this regard. According to applicant
she “suddenly realised the finality of the matter.” She spoke to the head
consultant of Procare, one van den Bergh, and fifth respondent thereafter
spoke to third and fourth respondents in order to ascertain whether they would
not be prepared to return Angel, but to no avail.


Eventually applicant was referred to the Woman’s Legal Centre in Cape Town
                                                                               6


and a lengthy affidavit was prepared on applicant’s behalf in which she
implored the Children’s Court to rescind the adoption order and to restore
custody of Angel to her.      Applicant herself concedes that this affidavit is
“incoherent, rambling and emotional” but states that this was a reflection of
her state of mind at the time.


Despite applicant’s efforts an order for the adoption of Angel by third and
fourth respondents was granted by first respondent in the Children’s Court,
Port Elizabeth on 11 February 2004.           Applicant thereafter launched the
present application during June 2004. Although there was some reference in
the papers and during argument to a rescission application which had been
filed on behalf of applicant during March 2004 the record of those proceedings
was not before us and there was considerable confusion as to what had
occurred at the hearing thereof.      Counsel were agreed, however, that no
decision had been taken on the merits in that application and that it was
irrelevant for present purposes.


Although counsel referred in argument before us to the adoption procedure as
set out in Chapter 15 of the Children’s Act 38 of 2005 the provisions of this
Chapter, for whatever reason, have not yet been brought into operation and
the provisions relating to adoption as contained in the CCA are still applicable.


As stated above it is in effect applicant’s case that her consent to the adoption
was not obtained, alternatively that such consent was vitiated by reason of the
duress exerted upon her by sixth and seventh respondents.
Ms. Hartle contended that in the event of these issues being determined in
favour of applicant that was the end of the matter and applicant would
thereupon be entitled to restoration to her of her full parental rights in respect
of Angel, including her right of custody.

Both Mr. Scott and Ms. Crouse took issue with this latter proposition and
submitted that even should it be found that applicant had not consented to the
adoption of Angel the Court would not set the order aside unless it was
satisfied that it was in the best interests of Angel to do so.
                                                                            7


Section 18(4)(d) of the CCA provides that consent to the adoption of a child
born out of wedlock must be given by both the mother and the father. It is
common cause that consent to the adoption by Angel’s natural father was
correctly dispensed with in terms of s 19(b)(x) of the CCA.


Section 18(5) provides that such consent must be given in writing and must
be signed in the presence of a commissioner of child welfare who must attest
the consent.


Regulation 19 of the Regulations to the Child Care Act provides as follows:


      “1.      Any consent to the adoption of a child by a parent of the child …
               shall be granted in the form of Form 12…
2.     Before the commissioner attests the consent referred to in
sub-regulation 1 in terms of section 18(5) of the Act he shall inform the person
granting the consent -
              (a)    of the legal consequences of an adoption;
               (b)    in the case of consent by the parent that the parent
                      concerned may withdraw the consent in writing in the
                      form of Form 12A before any commissioner at any time
                      during a period of up to 60 days after given such consent”


The written consent given by applicant on 25 July 2003 complies fully with
these requirements.
Section 18(8) provides:

      “Notwithstanding the provisions of any other law the parent of a child
      who has given consent to the adoption of his or her child shall have the
      right to withdraw such consent up to 60 days after such consent has
      been given.”


In his reasons for having granted the adoption order on 11 February 2004 first
respondent states that in the exercise of his discretion in terms of Regulation
21(1) he considered the application for adoption without affording a hearing to
any party. He was satisfied from a perusal of the documents in the file that,
                                                                             8


inter alia, the consent signed by the applicant on 25 July 2003 (Form 12) was
valid and that she had not revoked such consent within the period of 60 days
afforded to her by the provisions of s 18(8) of the CCA. With regard to the
applicant’s affidavit of 12 December 2003 he stated that he did not consider
this to be “a consent that replaced Form 12” but rather “a manifestation of
applicant’s desire to have the adoption proceedings brought to finality.” The
consent upon which he relied in granting the order remained that which was
given in writing on 25 July 2003.


First respondent states further that one of the documents upon which he
relied in coming to his aforesaid conclusion was a social worker’s report dated
28 January 2004 by Eloise Loots (the fifth respondent herein).           The first
respondent is presumably referring in this regard to the only social worker’s
report which was contained in the file which, although stating that it was
compiled by Mrs. Loots, is dated 6 January 2004 and signed by M.
Bezuidenhout (the sixth respondent).


In that report the following is, inter alia, stated:

       “Op 25 Julie 2003 teken Lisa toestemming tot aanneming. Sy voel
       aanneming is in Angel se belang en sy kan nie vir haar bied wat sy
       verdien nie. Weens Lisa se patroon van besluiteloosheid word Angel
       by ‘n veiligheidsouer geplaas en nie dadelik by aanneem ouers nie.


       Lisa gaan hierna deur erge emosionele prosesse. Sy fokus op haar
       toekomsplanne,        kry    ‘n   werk     en   is   doelgerig   om   haar
       bestuurderslisensie te bekom, aangesien dit haar sal toerus vir ‘n beter
       betrekking.


       Sy skakel en meld dat sy weer ‘n poging wil aanwend om Angel se
       versorging te behartig en versoek dat Angel by die veiligheidsouers bly
       tot sy die verkryging van haar bestuurderslisensie in Kwa-Zulu Natal
       afhandel.     Lisa se versoek word geakkommodeer.            Aangesien sy
       vervoer probleme het word Angel terug geneem op 25-08-2003. Sy
                                                                            9


       dui aan dat sy beplan om by haar moeder te bly.

       Weens Lisa se ambivalensie rondom Angel se permanensie word
       toestemming nie terug getrek nie.”


In my view the averments contained in these paragraphs should immediately
have given first respondent pause for thought. It emerges clearly therefrom
that within the 60 day period commencing on 25 July 2003 applicant had in
fact changed her mind and had taken Angel back into her custody on 25
August 2003. It appears also from the report that applicant stated clearly on
later occasions that she did not wish to proceed with the adoption. It is so
that applicant did not withdraw her consent to the adoption in writing as
prescribed by Regulation 19 and that she therefore did not formally comply
with those requirements. Nevertheless it cannot be gainsaid that she did de
facto withdraw her consent resulting in the return of Angel to her on 25 August
2003 whereafter she fully exercised her parental rights in respect of Angel.
To close one’s eyes to an unequivocal verbal withdrawal of consent in
circumstances such as the present would be to elevate form far beyond
substance.    It appears also from the affidavits filed by fifth and sixth
respondents that there was no misunderstanding in this regard and that
applicant had clearly conveyed to them the withdrawal of her consent.           It
was, indeed, for this reason that Procare closed its file at this stage. In these
circumstances the social workers erred, in my view, in not making the
requisite arrangements for the formal withdrawal of applicant’s consent. By
not doing so and by in effect keeping applicant’s consent of 25 July 2003
open in case she again changed her mind they deprived applicant of the 60
day period afforded to a parent for the reconsideration of her consent to an
adoption. A consent to adoption obviously has drastic consequences for all
concerned. It may very often be given in circumstances where reason is
clouded by emotion. It is no doubt because of this that a parent consenting
to the adoption of his or her child is afforded a 60 day spatium deliberandi.
Once such a parent has, within that 60 day period, unequivocally indicated his
or her desire not to proceed with the adoption and has therefore had custody
of the child restored to him or her then, in my view, that particular adoption
                                                                          10


process must of necessity terminate. Should the parent once again decide to
put the child up for adoption then the statutory procedure for consent,
including a further 60 day period within which to reconsider that decision must
of necessity again be followed. Only in this way can the interests of the
parent and child be adequately safeguarded.


In the present matter therefore, and on the assumption that the consent of 25
July 2003 had been validly given, I am satisfied that applicant had, within the
60 day period afforded to her, withdrawn that consent.        Accordingly the
adoption order of 11 February 2004 was wrongly granted.


This conclusion renders it unnecessary to deal with the alternative ground
advanced by applicant, namely, that her ostensible consent had been
obtained by means of intimidation and pressure on the part of fifth, sixth and
seventh respondents.     Because, however, of the serious nature of the
allegations levelled against those respondents it is necessary in my view to
say something in that regard. Nothing in the welter of papers filed in this
application lends any support whatsoever to applicant’s averments. On the
contrary, on applicant’s own averments it is clear that she was, throughout the
relevant period, ambivalent and vacillatory concerning her intent.         The
objective facts, including the contents of Procare’s files, the reports of the
social workers from time to time and applicant’s own actions as set out in her
affidavits, speak loudly of social workers who were supportive of applicant and
who accommodated her changes of mind and vacillations throughout,
returning Angel to her whenever she requested it and closing their files on
three different occasions when it appeared that applicant did not wish to
proceed with the adoption. There is nothing to indicate that they acted other
than professionally throughout. Their actions were entirely inconsistent with
applicant’s averments of an unethical agenda to force the adoption through
and applicant’s assertions that they tore her family apart are without
foundation. Her averments in this regard were irresponsibly made and are
consistent with the conclusions reached by Ms. Crouse who reported to the
effect that applicant is emotionally immature and unable to take responsibility
for her own actions.
                                                                             11



I turn then to consider the effect of the finding that applicant’s consent to the
adoption of Angel on 11 February 2004 had not been validly obtained.


As stated above it was Ms. Hartle’s contention that in the event of it being
established that applicant’s consent to the adoption had not been validly
obtained the applicant was entitled to the restoration to her of full parental
rights in respect of Angel. She submitted that whilst the best interests of the
child had to be taken into account “the standard of best interests surely
requires that adoption orders not be obtained unlawfully or that children not be
separated from their natural families.” She submitted further that it would be
“a gross injustice and against the best interests standard if an adoption order,
the consent for which was procured as it happens, with the respondent’s clear
knowledge that the applicant wished to revoke same, should be ‘legitimised’
simply because the passage of time has given the third and fourth
respondents the upper hand and rendered it traumatic to Angel for parental
rights to be restored to the applicant” and that the respondents cannot seek to
circumvent the provisions of the CCA “by having the Court legitimise an
adoption order which was not valid in terms of the Child Care Act in the first
place.”


In my view the answer to these submissions is to be found in the provisions of
s 21 of the CCA itself. Section 21(1)(a) provides as follows:


       “A parent of a child for whose adoption an order has been made under
       section 17 … may apply to the Children’s Court by which the order was
       made for the rescission thereof on one or more of the following
       grounds namely –
       (a)    if the applicant is the parent of the child, that he did not consent
              to the adoption and that the order of adoption should not have
              been made without his consent.”


Section 21(7) provides that the Court to which the rescission application is
made shall rescind or confirm the order of adoption:
                                                                                12



       “Provided that it shall not rescind an order of adoption on the
       application of a parent of the adopted child if the Court is satisfied that
       the applicant is unfit to have the custody of the child and that it is in the
       interests of the child that the order of adoption be confirmed.”


Section 243(3) of the Children’s Act 38 of 2005, although not yet in operation,
envisages much the same procedure and provides that an adoption order
may be rescinded if:


       “(a)    rescission of the order is in the best interests of the child; and
       (b)     the applicant is a parent of the child whose consent was
               required for the adoption order to be made but whose consent
               was not obtained.”


It is clear from these provisions that the Legislature has recognised that even
where an adoption order has been irregularly obtained in the absence of the
requisite parental consent it should not be set aside unless it was in the best
interests of the child to do so. There can therefore be no question of the
respondents having attempted to circumvent the provisions of the CCA as
submitted by Ms. Hartle.           I agree with Joffe J who stated in Belo v
Commissioner of Child Welfare, Johannesburg and Others: Belo v Chapelle
and Another [2002] 3 All SA 286 (W), para 24 that there is precedent for a
litigant being compelled to abide a judgment which is wrong, the
jurisprudential basis being the principle that the proper administration of
justice requires finality in litigation.


The provisions of the CCA are not the only relevant provisions. Section 28(2)
of the Constitution provides:


       “A child’s best interests are of paramount importance in every matter
       concerning the child.”


Section 6(2) of the Children’s Act 38 of 2005, which section is in operation,
                                                                               13


provides:


       “All proceedings, actions or decisions in a matter concerning a
       child must –
       (a)    respect, protect, promote and fulfil the child’s rights set out in the
              Bill of Rights, the best interests of the child standard set out in
              section 7 and the rights and principles set out in this Act, subject
              to any lawful limitation.”


Section 7 lists several factors which are to be taken into account in
considering the best interests of the child. These include the nature of the
relationship between the child and its parents; the attitude of the parents
towards the child; the capacity of the parents to provide for the needs of the
child; the likely effect on the child of any change in circumstances; the child’s
physical and emotional security; and avoidance or minimizing of further legal
proceedings in relation to the child.


Section 9 echoes the provisions of s 28(2) of the Constitution and provides:


       “In all matters concerning the care, protection and well-being of a child
       the standard that the child’s best interests are of paramount importance
       must be applied.”


Mr. Scott referred to a number of cases from which it appears that the Courts
have consistently applied the principle that the best interests of the child are
paramount when dealing with the rescission of adoption orders made in the
absence of parental consent.


In T v C and Another 2003 (2) SA 298 (W) the Court dismissed an appeal
against a refusal by the Children’s Court to rescind an order of adoption, on
the grounds that it would not have been in the child’s best interests to rescind
the adoption. The adoption had been granted without the statutorily required
notice being served on the child’s biological father. The Court found that the
adoption process had been tainted and the proceedings were unfair.
                                                                             14


Cachalia J said at para [18]:


       “The Constitution enjoins us to accord paramount importance to the
       child’s best interests in every matter concerning the child.          Any
       decision relating to the rescission of an adoption order or an appeal
       against any such decision must therefore give primacy to this
       principle.”


Similarly in Belo v Commissioner of Child Welfare, Johannesburg and Others:
Belo v Chapelle and Another, supra, where the father’s consent to the
adoption had wrongly been dispensed with, the Court refused an application
for condonation of the late noting of an appeal.           Sufficient cause for
condonation was found not to have been shown because the minor’s interests
were so persuasive and weighed so heavily.


In Fraser v Naude and Others 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357
(CC), an application by the father of an adoptive child for special leave to
appeal against a decision of the Supreme Court of Appeal, the Constitutional
Court held that even if it could be shown that applicant had reasonable
prospects of success on appeal the interests of the child were paramount.
Because of the lengthy delay which had occurred in the matter it would not be
in the interests of justice that a further appeal should be heard which might
have the consequence that the adoption proceedings would have to be
re-opened and the dispute again dragged out through the Courts.
In the face of the above authorities Ms. Hartle sought to rely in particular on
two cases namely Petersen en ‘n Ander v Kruger en ‘n Ander 1975 (4) SA
171 (C) and Re M (Child’s Upbringing)[1996] 2 F.C.R. 473.

In Petersen’s, case, supra, Mrs. Petersen and Mrs. Kruger each gave birth to
a son on the same day. The babies were mistakenly swopped by the nursing
staff and Mrs. Petersen and Mrs. Kruger each returned home with the other’s
child. Mrs. Petersen’s doubts as to whether the child in her custody was
indeed her own child were eventually proved correct by means of blood tests.
The Krugers, however, refused to part with the child in their custody and the
Petersens duly brought an application for an order restoring to them custody
                                                                            15


of their child. By then he was nearly two years old.


The order prayed for was granted by van Winsen AJP (as he then was).

Much was made by Ms. Hartle of the learned Judge’s statement at 174A, that
a Court would feel itself called upon to interfere with the parental rights of
control and custody where the exercise of such rights could endanger the life,
health or morals of the child. She submitted in the light thereof that, where
the life, health or morals of the child were not endangered, the natural
parents’ rights to control and custody of the child must prevail.           This
statement must, however, be read in the context in which it was made. The
English headnote at p 171G-H correctly conveys what was stated by the
learned Judge at 173H-174C:


      “It is the basis of our system of law that, subject to certain limitations,
      the natural parents have the right of control and custody of a child.
      The aforementioned limitations flow from the authority conferred on the
      Court as upper guardian of all children to limit the parental rights in
      respect of a child where the interests of the child require it.       The
      circumstances whereunder a Court would feel called upon to interfere
      with the parental right of control and custody exist where the exercise
      of such rights could endanger the life, health or morals of the child.
      The authority of the Court to interfere with the rights of parents in
      respect of their child is not limited to the three named grounds; any
      ground which is related to the welfare of the child can serve as a
      reason for interference by the Court. To a Court the interests of the
      child are the most important, but the rights of the parents must not be
      left out of account.”


It is clear therefrom that the learned Judge did not intend to establish a
numerus clausus of grounds absent which a natural parent was, with nothing
more, entitled to control and custody of the child. He was at pains to stress
that whilst the interests of the child were paramount, the rights of the parents
must not be left out of account. After referring to certain cases where the
                                                                                16


Courts had ordered the return to a natural parent of the child despite there
having been a lengthy separation between them, he stated as follows at
176C:


         “Ek noem die gewysdes om die algemene rigsnoer aan te dui wat die
         Howe gevolg het in gevalle waar die voordele, stoflik sowel as
         geestelik, wat die kind by die pleegouers geniet het, min of meer gelyk
         opweeg teen diè wat die kind by sy natuurlike ouers sal kan geniet en
         waar hul gemeen het dat die oorplanting nie blywende sielkundige
         skade aan die kind sal veroorsaak nie.”


The circumstances of the present case are very different as I shall
demonstrate hereunder.

In Re M, supra, the following was stated at 485:


         “Of course, there will be cases where the welfare of the child requires
         that the child’s right to be with his natural parents has to give way in his
         own interest to other considerations. But I am satisfied that in this
         case, as in other cases, one starts with the strong supposition that it is
         in the interests of P that he should be brought up with his natural
         parents.”


It is clear therefore that the fact that applicant is Angel’s biological mother is a
very important consideration to be taken into account but this fact cannot per
se outweigh other factors which have to be considered and it cannot, in
particular, outweigh the paramount consideration of the best interests of the
child.    Ms. Hartle’s submissions, in my view, in any event approach the
matter from the wrong perspective by placing the interests of the natural
mother above the best interests of the child.


Ms. Hartle sought further to distinguish the cases of T v C, supra, Belo v
Commissioner of Child Welfare, Johannesburg and Others; Belo v Chapelle
and Another supra and Fraser v Naude and Others supra on the basis that
they dealt with the claims of natural fathers and not natural mothers. There is
                                                                              17


no merit in this submission. It is clear, in my view, that there can no longer
be any discrimination in such cases based on the gender of the parent whose
consent was not obtained.


I am satisfied therefore that despite the adoption order having been obtained
without the valid consent of applicant such order cannot be set aside unless it
is in the best interests of the minor child to do so.

In determining where the best interests of the minor child lie I have had
regard, inter alia, to the reports of Ms. Crouse and of Mr. Goosen referred to
above. The content of these reports is not disputed by applicant. In Mr.
Goosen’s report he states, inter alia, as follows:


       “Ms. Swart is 30 years old.         There is a history of instability of
       interpersonal relationships, self-image and affects, and marked
       impulsivity.”


He continues that she appears to be unable to comprehend or sense the
needs of children and that her focus appears to be entirely upon herself. She
appears oblivious to the effects of the numerous separations on Angel during
the first six months of her life and seems to have a simplistic view that the
child’s best interests would be served “when the mother’s fantasy needs are
met.” Mr. Goosen further questions applicant’s ability to bond with the child
in view of her tendency to act impulsively and her nomadic life style. He
states that her “instability of mood, ambivalence and vacillation seemed to be
an enduring pattern and was serious cause for concern.” He continues as
follows:


       “Due to the repeated separations between Angel and Ms. Swart the child’s
       primary attachments were severely compromised. (The child is reported to
       have not recognised her mother while living with the kangaroo mother before
       her adoption.)   She was also described as floppy and low-toned.      These
       factors suggest the presence of a reactive attachment disorder, which is a
       serious and damaging psychological consequence of separating a child from
       its mother at a young age. There is no good reason to subject (the child) to
                                                                          18


       the same abuse again.”


He states that it is his considered opinion that to separate the child from her
adoptive parents “would cause significant, serious, pervasive and lasting
psychological personality damage.”


He finds that there is no bond between the child and applicant and states that
it would be “severely traumatising” to uproot her and place her in a strange
environment without her attachment figures and psychological support. He
states further that if to the scenario is added “the dubious nature of Ms.
Swart’s psychological and personality functioning, financial constraints,
inability to understand or meet the needs of a small child, and impulsive
behaviour, then the situation becomes downright ominous.”


In contrast he describes third and fourth respondents as “stable, healthy and
productive individuals” who have a happy and stable marriage. He finds that
they are Angel’s psychological parents and that her future psychosocial
development and functioning would be compromised should she be separated
from her adoptive parents. In this regard he states that “no purpose would be
served in returning the child to her biological mother, which would negate or
counter-balance the definite serious, negative, destructive and long-term
effects of separating the child from her adoptive parents.”


He concludes that at present the child “receives more than many other
children in the sense of therapeutic intervention, stimulation and enrichment.
She is a privileged child.      She is happy, well and contented, and is
developing at an above-average rate. She is loved by two people who are
psychologically healthy and who do not lean on the child for emotional
support. It is the writer’s opinion that the child could not have been placed
with better parents.”


These views are shared by Ms. Crouse. In her report Ms. Crouse refers to
an interview conducted by her with one Sally Wessels, a psychologist who
had been dealing with the minor child since the time that she had been placed
                                                                           19


with third and fourth respondents. According to Ms. Wessels the effect of
removing Angel from third and fourth respondents “would be worse than if her
parents would have been killed and as if she had been put with strangers in a
new city. The effect of such trauma would be the same as a physical abuse
of this child and could lead to intense psychological scarring in her teenage
years.”


Having interviewed the applicant, Ms. Crouse was of the view that she was
emotionally immature and not able to take responsibility even for her own life.
Applicant blamed the social workers for the adoption and took no
responsibility whatsoever for any of the events which had occurred. She did
not deal at all with the effect of her actions on Angel and did not appear to be
concerned as to how Angel would be affected by being restored to her
custody. Ms. Crouse was strongly of the view that it was in the best interests
of Angel that she remain with her adoptive parents.


In my view, the evidence that Angel would be severely traumatised by being
removed from the third and fourth respondents is overwhelming. It is clear
that a return to applicant’s custody would not benefit her, and on the contrary,
would cause her lasting harm. Applicant’s frequent changes of mind also
raise significant doubt as to her ability to commit to Angel. A possibility of
her changing her mind yet again should Angel be returned to her is, in my
view, a real one especially given the lack of stability in her life. All these
factors serve to distinguish the present case from cases such as Peterson,
supra.


Ms. Hartle submitted that it was grossly unfair to applicant that she should in
effect be penalised because of the lengthy delay from the time the adoption
order was granted until the hearing of the application. Because of that delay
Angel has now been in the custody of third and fourth respondents for four
years.


In Fraser v Naude and Others supra the following was stated at paras 8 and
9:
                                                                             20



       “[8]   It is now almost three years since the adoption order was made.
       Although Mr. Fraser is not to blame for any delay in the proceedings,
       nor the time that elapsed between the judgment of the High Court and
       the judgment of the Supreme Court of Appeal, we cannot ignore the
       passage of time.


       [9]    The matter concerns the status and well-being of the young
       adopted child.     The interests of the child are paramount.      We are
       conscious of the importance of such an issue and of the strong
       emotions to which it has given rise. All the parties to this litigation
       have suffered as result of the prolonged proceedings.”


The Court proceeded to point out that should the adoption order eventually be
set aside it would not be the end of the matter because the proceedings would
have to be reopened and the dispute would again drag itself out in court.
Such continued uncertainty as to the child’s status and placing could not be in
the interests of the child.


Similarly, in the present matter, it could, in my view, in the circumstances
outlined above, never be in the interests of the child to set aside the adoption
order and to restore her custody to applicant.          I accept that applicant
instituted these proceedings expeditiously. I should mention that she is not,
however, entirely blameless with regard to the lengthy delay in the matter.
The answering affidavits of the respondents were filed with considerable
expedition by 25 November 2004.             Applicant’s replying affidavit was
thereafter only filed on 3 November 2005, over 11 months later.            In this
regard applicant filed an affidavit in support of an application for condonation
of the late filing of that affidavit. She states therein that she had considerable
difficulty in responding to the sixth respondent’s affidavit because it was
deposed to in Afrikaans and she states further that her counsel had other
demands on her time and was unable to deal properly with the matter over the
telephone. Eventually applicant travelled from Cape Town to Port Elizabeth
and consulted with counsel on 5 September 2005. The explanation afforded
                                                                             21


by her for her delay is extremely unsatisfactory and it is difficult to understand
why in a matter of such importance to her she was unable to make other
arrangements which would have enabled her to have finalised her affidavit
timeously.


Be that as it may, I am satisfied in all the circumstances that it is not in the
best interests of the minor child that the adoption order be set aside.


All counsel, including Ms. Crouse, were very properly agreed that in view of
the particular circumstances of this matter each party should pay their own
costs.


The application is dismissed with no order as to costs.




_______________
J.D. PICKERING
JUDGE OF THE HIGH COURT




I agree,



_______________
C. PLASKET
JUDGE OF THE HIGH COURT


Mrs. B. Hartle and Ms. Laher for applicant
Instructed by Nettleton Attorneys, Mr. Hart

No appearance for 1st, 2nd, 5th, 6th, 7th and 8th respondents

Adv. P. Scott for 3rd and 4th respondents.
Instructed by Wheeldon Rushmere and Cole, Mr. Brody

Mrs. E. Crouse as curator-ad-litem for the minor child.

								
To top