Recently, the United States government issued an advisory to prospective parents and adoption service providers to back away from South Africa “because of continued, lengthy delays and uncertainty impacting on newly adopted children’s ability to depart South Africa”.
This advisory is likely to be followed by other countries that have adoption agreements with South Africa. What prompted it was the plight of six US families “trapped” here for six months with their adopted “special needs” children while they and their lawyer battled with the Department of Home Affairs to get documents, including passports, for the children.
In essence, department officials in the Western Cape insisted that the children were now deemed “foreigners” and would not be issued with South African passports to enable them to travel to the US where, on entry, their parents could apply for their US citizenship.
The US consulate came to their aid and issued the children with “special permits” and visas. One family left. But a second was blocked at immigration. Their attorney, Debbie Wybrow, launched a high court application and after three days of negotiation, the department agreed to “fast-track” the noting of their adoptions and name changes, and issue them with South African passports.
But the settlement, made an order of court, only applies to the children named in the court application. Wybrow says she has won only a skirmish in a much bigger war symbolic of the “anti-adoption” stance of some in government.
‘Special needs’
In the past nine years, her law firm, Wybrow-Oliver, has represented 209 children and their adoptive families. “These are children who are in institutions. In most cases they have special needs, which makes it difficult to find suitable permanent placements within their families or with local families. The adoptive parents are ordinary people who believe it is their calling to provide parental love and care to these children.”
The children named in the application are: N, who is five years old, on the “foetal alcohol spectrum” and developmentally delayed; three-year-old L, who is autistic; T, who is two and has a congenital defect in which part of her brain is missing; A, who is five and has delayed development owing to emotional trauma; and four-year-old K, who has Down’s syndrome.
Their adoptions were all signed off by courts after proving compliance with the Children’s Act and the Hague Adoption Convention.
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Wybrow explains that although the adoption order terminates the rights of the biological parents, additional administrative steps are required, including the noting of the adoption and the issuing of a new birth certificate by the department.
This can take years – up to four, in one instance. In the past, the adoptive parents would apply for a South African passport on the old birth certificate, which would allow them to go home with their children while the department did what it needed to do.
But in May that changed, and officials refused to process the passport applications.
Conflicting information
Parents were given contradictory reasons for the refusal. They were told the children were “foreigners” and the US government must issue them with passports. They were also told South African passports may be issued, but only after a new birth certificate was issued. Finally, they were told that while this process was under way, their children’s names would be “blocked” on the immigration system. Wybrow knocked on every door, including that of the office of the president, but could get no clarity.
Fathers and siblings returned to the US because of school and work commitments. The mothers remained here with their “stateless” children. As a result of the court order, they are now preparing to leave South Africa. But Wybrow is intent on pursuing the part of the application in which she has challenged the constitutionality of the policy change.
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“Children who experience the loss of their first parent are particularly vulnerable to compounded trauma from further losses. They are prepared for their new forever family and then transitioned into that new family unit. The first few months as they learn to re-establish trust and to love again are critical,” she says.
“No child deserves to be separated from a new parent and new siblings. The prospect of spending an indeterminate amount of time in South Africa, away from home, work and school – with no guaranteed outcome even with a court order – will understandably scare potential adoptive families, who in some cases are the only option other than institutionalisation for these children.
“We have no option but to proceed on behalf of adoptable South African children and ensure that no one unjustifiably infringes on the rights, values and principles of our Constitution,” says Wybrow.
The department has not yet filed an affidavit with the court and did not respond to numerous requests for comment.
Not the only case
Wybrow’s case should not be seen in isolation.
A legal adoption expert who cannot be named for professional reasons said proposed changes to the Children’s Act – which effectively remove all “paid professionals”, including lawyers, private social workers and medical experts, from the process – were another indication of an attempt to thwart adoptions.
In a radio interview, Robyn Wolfson Vorster, a child protection advocate, said that over the past five years, local and international adoptions had declined by 50% to about 1 000. She said the process was “specialised” and done almost exclusively by private social workers and child protection organisations who could not survive financially unless they charged fees.
In the same interview, Conny Nxumalo from the Department of Social Development denied trying to “make adoptions harder … In fact, we want to increase them. We have 890 social workers who are trained in adoptions. We want the process to be free so that people in rural areas can adopt,” she said.
Karabo Ozah from the Centre for Child Law responded by saying that the issue needed “honest debate”.
“Nationally, the department might say it wants to see more adoptions. But when you go to the provinces the attitude is different. There is an air of impediment. Scrapping fees won’t resolve the issue of whether we, as a country, really support and believe in adoptions.”
The “no fees” proposal is still pending before Parliament.
Legal recourse
Last week in the Durban high court, Judge Rishi Seegobin heard argument in a matter in which the National Adoption Coalition of South Africa (Nacsa) has accused KwaZulu-Natal social development officials, responsible for signing off on adoptions, of meddling and using delay tactics.
In submissions, advocate Debbie Ainslie for Nacsa said that once a social worker has completed their investigation, the report is assessed by a provincial panel. After this, the provincial head has to issue a letter either recommending or rejecting the adoption in the Children’s Court.
The law provides for stringent timelines throughout the process and yet decisions were taking up to two years, while in other provinces the turnover time was anything from three days to two weeks.
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In papers, Nacsa KwaZulu-Natal chairperson Marietjie Strydom said: “The trend seems to be that the [head of department] and panel raise ‘problems’ on spurious grounds. They have elevated reunification with the family as the ultimate goal. The panel wants to conduct its own investigations, including tracing remote friends or families even after, in some cases, parental consent has been signed before a magistrate. They are usurping the role of the social worker and the Children’s Court.”
Strydom supplied a number of examples of how social development officials scupper the process. For instance, the panel ignored the wishes of a biological mother who already had two children and could not cope financially with a third. The panel suggested that all the children be removed from her and placed in alternative care “so they could forge a bond as siblings and alleviate her burden of child-raising”. The child was two before his adoption was approved by the Children’s Court.
Children in limbo
In another example, the social worker handling the adoption of the newborn of a 25-year-old Zimbabwean woman living in South Africa was told by the panel to contact the maternal grandmother in Zimbabwe. The social worker objected, saying it was a violation of the birth mother’s right to confidentiality. At one stage, the panel wanted an affidavit from the prospective parents that they would take the child to visit Zimbabwe.
The panel also queried why a birth mother, herself an orphan who cared for her disabled brother and an older child, would choose to look after her brother instead of her newborn child. There were also suggestions that his care and that of the other child should be “assessed” for safety and risk.
“There are many children who are currently in limbo,” Strydom said, “children living in under-resourced and crowded children’s homes instead of with adoptive families. It is an infringement of their rights.”
The application was opposed, but the judge had some harsh words for the respondents, suggesting they were showing a disregard for constitutional imperatives. He ordered the respondents to provide updated information on the number of pending applications for a letter of recommendation before he would rule on the matter.