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					 Intercountry Adoption

          Ann Skelton
  11th Family Law Conference
Cape Town 12 and 13 March 2009
           An emotive issue
• Different perspectives, often expressed with
  a tone of moral indignation
• Tends to be over-simplified
• Some powerful, well resourced lobbies
  driving the adoption agenda
• Regulation is viewed as unnecessarily
  bureaucratic and obstructive
Receiving and Sending countries
• The different perspectives are partially driven by the
  division between sending receiving countries
• Sending countries = countries of origin, tend to be poor,
  developing, often post conflict/crisis
• Receiving countries tend to be wealthy, developed
  countries
• This sets up an uncomfortable dynamic which has been
  described (very extreme perspective) as the plundering of
  resources or ‘modern day imperialism’
• Some lobbies in the receiving countries tend to view
  sending states as being incompetent and bureaucratic and
  feel that the children need to be ‘saved’
  Why it is not as simple as it seems
• The number of orphans in a country does not
  equate to the number of adoptable children
• Cultural issues favour children being cared for in
  the extended families
• However, the systems (or lack of) in sending
  countries often hamper adoptable children being
  timeously identified and made available for
  adoption
• Strengthening the domestic adoption system is an
  important first step
                     Risks
• Furthermore, there are risks in intercountry
  adoption
• Whilst the vast majority of prospective adopters
  have the noblest of intentions, the risk of ill-
  advised or unscrupulous practice is always present
• The Hague Convention (Adoptions) expressly
  aims to prevent trafficking in children
   Why is regulation important?
• Children crossing borders, so complex issues of
  obtaining nationality in country to which child is
  being moved
• Not a private matter between individuals, involves
  comity between states
• Need for administrative co-operation for birth
  registration
• Need for judicial co-operation for recognition of
  adoption orders in other countries
Inter-country adoption in SA

 • Prior to Fitzpatrick case in 2000, no intercountry
   adoptions
 • Constitutional Court declared section 18(4)(f) of
   CCA invalid because did not allow paramountcy
   to best interests
 • Order of invalidity: immediate effect, though
   Minister argued for time to get structures in place
 • DSD started IC Adoptions in uncharted waters,
   but between 2000 and 2007 had managed to
   conclude a total of 1362 IC Adoptions
2000                 28
2001                 77
2002                159
2003                210
2004                239
2005                248
2006                256
2007 (up to Aug)    150
Total              1362
     Countries to which adopted SA
          children have gone
Netherlands 292
Sweden 208          • Also (fewer numbers) to
Germany 159           Botswana, Kenya,
Denmark 125           Mauritius, Namibia,
Finland 65            Nigeria, Tanzania, UK,
Belgium 54            Zimbabwe
USA 54
Austria 50
Norway 43
Luxemburg 42
Canada 23
Hague Convention
• On 21 August 2003 South Africa ratified the
  Hague Convention on the Protection of Children
  and co-operation in Respect of Intercountry
  Adoption
• In the meanwhile the Act took a long time to get
  passed, so though ratified, no domestication as yet
• Principles still apply, and UNCRC and ACRWC
  also relevant
Subsidiarity principle
• This is the principle that forms part of the
  definition of intercountry adoption: “if the
  child cannot be placed in suitable alternative
  care in country of origin”
• This is also linked to “adoptability”
• If child is orphan but has care givers who want
  to care for her, she is not adoptable
A trilogy of cases

• De Gree and Another v DW and Others (Centre for
  Child Law University of Pretoria as Amicus Curiae)
  2006 (6) SA 51 (W).
• De Gree and Another v DW and Others (Centre for
  Child Law as Amicus Curiae) 2007 (5) SA 184 (SCA)
• AD and another v DW and others (Centre for Child Law
  as Amicus Curiae; Department for Social Development
  as Intervening Party) 2008 (3) SA 183 (CC)
           High Court matter
• Goldblatt J
Invited amicus curiae
• Submissions set out the Hague Convention,
  the law, attached affidavits setting out
  government policy: advised the matter
  should be dealt with in the children’s court,
  where all the issues eg subsidiarity,
  suitability, best interests would be decided
        SCA majority judgments
•   Very contested, split 3:2 with 4 judgments (demonstrating the divergence of
    views on this issue)
•   Theron AJA, with whom Ponnan JA and Snyders AJA concurred, held that
    to grant the order sought by the applicants would result in sanctioning an
    alternative route to inter-country adoption under the guise of a sole custody
    and sole guardianship application. This, she stated, was an unsavoury form
    of by-passing the Children’s Court adoption system and jumping the queue.
    She held further that the appeal should in any event fail because of the
    principle of subsidiarity. In her view, unless it was established that suitable
    care could not be found in a child’s country of origin, an inter-country
    adoption application would not lie, whatever other considerations there
    might be.
•   In a separate concurring judgment, Ponnan JA supported the need for the
    matter to go to the Children’s Court, and held that a court should be slow to
    lend its stamp to a procedure which ignored the international safeguards and
    standards in the 1993 Hague Convention even if these did not as yet form
    part of South African domestic law.
       SCA minority judgments
•   Heher JA viewed the matter quite differently. He held that as upper
    guardian of minors, the High Court was both empowered and
    obliged to enquire into all matters concerning the best interests of
    children. This empowers it to make an order for sole custody and
    sole guardianship. It therefore had jurisdiction to hear the
    application. In the present matter the High Court should not have
    opted for a formalistic approach to procedure. Instead it should
    have investigated what was in Baby R’s best interests. In his view
    the papers showed that it was overwhelmingly in her best interests
    for the order of sole custody and sole guardianship to be granted,
    since there was no evidence of the existence of other prospective
    adoptive parents for her in South Africa.
•   Hancke AJA (separate but concurring) stated that unless the setting
    aside of the High Court’s order was likely to result in a real benefit
    to Baby R, her best interests were merely being held to ransom for
    the sake of legal niceties.
          Constitutional Court
• Unanimous judgment (Sachs J)
• Children’s court is the right forum
• High Court not a jurisdictional bar, but nothing
  exceptional so case should have gone to children’s
  court
• Subsidiarity – stated too baldly by the SCA, - a
  matter to be considered, together with best
  interests, by the children’s court
• Court gave an order for children’s court to hear
  matter within 30 days.
            Happy ending?
• CC judgment seems like a happy ending’
• The adoption was granted, Baby R went to
  the USA
• But the adoption collapsed a few months
  later, authorities in SA not notified, Baby R
  became available for adoption in the US and
  was adopted by another couple who had 2
  adopted children
   Comparison with Banda case
• In Re: Adoption of Children Act (Cap.26:01); In
  re David Banda (Adoption cause No 2 of 2006)
  [2008] MWCH 3 (28 May 2008)
• Judgment is similar in that is emphasises best
  interests principle, Justice Nyirenda, noting the
  UNCRC and the ACRWC, found 3 year residence
  rule to be contrary to the spirit of those
  instruments and Malawian constitution
So what does the Children’s Act say
about IC adoption

  Chapter 16 (not yet in operation)
  Purposes:
  • To give effect to Hague Convention (gives it force
    of law)
  • To provide for recognition of certain foreign
    adoptions
  • To find fit and proper adoptive parents for an
    adoptable child
  • Generally to regulate intercountry adoptions
Concept of intercountry adoption

• To find a family for a child where no
  suitable placement is available for that child
  in his or her country of origin
• A change in the child’s habitual country of
  residence
• Entails a need for international co-operation
  at legislative, administrative and judicial
  level
International Cooperation
• S 255 President may, on such conditions as
  s/he deems fit, enter into agreement with a
  foreign state that either is or is not a party
  to the Hague Convention (but if not a party
  the agreement must not conflict with Hague
  provisions.
• Can amend or revoke the agreement
Central Authority
• The Director-General of the Department of
  Social Development is the Central Authority in
  SA
• Central Authority in another country is the
  authority designated by that country
• DG, after consultation with DG: Justice, must
  perform functions of Central Authority
Accreditation of Child Protection
Organisations
• A child protection organisation must be
  accredited specifically to provide intercountry
  adoption services, and must annually submit
  audited financial statements to Central
  Authority
• The staff must be trained and familiar with
  ethical standards
Adoption working agreement
• It is the child protection organisations
  (CPOs) that actually carry out the work on
  intercountry adoptions
• The CPO enters into working agreement
  with accredited adoption agency in the other
  country, and provide certified copies to the
  CA
Different scenarios in intercountry
adoption allowed for
• Originally, the SALRC Bill only allowed for
  adoptions to occur between Hague signatories,
  but this was changed by the executive,
  probably because many African countries have
  not ratified, and they wanted to be able to have
  children adopted across African borders
Different scenarios
• S 261 Adoption of child from Republic by person
  in convention country
• S 262 Adoption of child from Republic by person
  in non-convention country
• S 264 Adoption of child from convention country
  by person in republic
• S265 Adoption of child from non-convention
  country by person in republic.
This is flexible in two ways: allows adoptions
  between convention and non-convention, but also
  makes SA a sending country and a receiving
  country
S 232 – Register on adoptable children and
prospective adoptive parents (RACAP)
• DG must keep and maintain register
• Names and other identifying info of the child must be
  entered into RACAP
• Parents must have complied with 231 and be citizens or
  permanent resident (raises questions of constitutionality)
• Only DG and officials have access, but can allow access
  to HOD or official of DSD, child protection organisation
  accredited to provide adoption/ I-C adoption services
• Registration is for 3 years but may be renewed
• Regulation 111
RACAP link to intercountry adoption
• The RACAP forms part of domestic adoption, only
  SA citizens or permanent residents details are there

• The link with intercountry adoption is that the
  adoptable child’s details must be placed on RACAP
  for at least 60 days and is not matched with a fit and
  proper adoptive parent in the Republic, before he or
  she becomes available for intercountry adoption: this
  is to comply with the principle of subsidiarity

• No contact between prospective adoptive parents and
  the child until the process is well advanced (no
  specific provision, but this is Hague requirement)
Recognition of intercountry adoptions


• Intercountry adoptions concluded in the
  children’s court in the Republic: CA issues an
  adoption compliance certificate
• CA can recognise adoptions done in other
  countries
• If there is a problem, an application for
  adoption can be made to children’s court
Central Authority can withdraw its
consent
• Central Authority can withdraw its consent
  within 140 days, if it is in best interests of the
  child
• The child must be brought back to South
  Africa where consent is withdrawn by CA
Conclusion

• The Act will assist because it makes the
  processes clear, government has committed
  itself to IC adoption, both as a sending and
  receiving country
• RACAP creates a practical, sensible
  framework for the operation of the subsidiarity
  principle. 60 days, then child becomes
  available for inter-country adoption

				
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