Intercountry Adoption

1. Intercountry Adoption Ann Skelton 11th Family Law Conference Cape Town 12 and 13 March 2009

2. 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

3. 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’

4. 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

5. 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

6. 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

7. 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

9. Netherlands 292 Sweden 208 Germany 159 Denmark 125 Finland 65 Belgium 54 USA 54 Austria 50 Norway 43 Luxemburg 42 Canada 23 Also (fewer numbers) to Botswana, Kenya, Mauritius, Namibia, Nigeria, Tanzania, UK, Zimbabwe Countries to which adopted SA children have gone

10. 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

11. 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

12. 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)

13. 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

14. 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 stampto 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.

15. 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.

16. 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.

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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)

29. 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

30. 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

31. 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