Our expert says:
Family law expert
Steps to follow
* Apply for the adoption order at a children’s court situated in the district where the child who is to be adopted lives. Since all magistrates’ courts serve as children’s courts, you can apply to the clerk of the children’s court.
* Complete Form 11, Application for the adoption of a child, and submit it to the assistant of the children’s court.
* Consent to the adoption must be obtained from
- parents of a legitimate child
- the mother of an illegitimate child and the natural father
- the child over 10 years of age must also consent to the adoption, and the court must be satisfied that the child understands the nature and import of such consent
* No consent is required under the following circumstances:
- in the case of any child whose parents are dead and for whom no guardian has been appointed
- from any parent who:
+ is as a result of mental illness incompetent to give any consent
+ deserted the child and whose whereabouts are unknown
+ has assaulted or ill-treated the child or allowed to be assaulted or ill-treated
+ caused or conduced to the seduction, abduction or prostitution of the child or the commission by the child of immoral acts
+ the child is by virtue of the provisions of section 16(2) in the custody of a foster parent or is a pupil in a children’s home or a school of industries
+ is withholding his consent unreasonably.
* The court assistant shall, if this has not already been done, ask an accredited social worker to investigate the application.
* At the end of the investigation the social worker will submit a report to the children’s court at which the application was made. Unless it is required by the court, the report shall not disclose the identity or the whereabouts of the proposed adoptive parents – or the child, if already in their custody – without their prior written approval.
* If it is satisfied with the report and any other information on the prospective adoption the court may, at its discretion, consider the application and make an order granting the adoption without giving a hearing to any person. It may, however, only do so if the application for the adoption is not opposed.
* If an application has not been finalised or cannot be finalised, a date for the formal hearing of the application by the children’s court shall be set. The clerk of the children’s court will issue a notice on Form 1A, Notice to prospective adoptive parents, to notify each adoptive parent of the hearing.
* The child’s natural parent(s) shall not be present at the court proceedings for the adoption of the child unless the court, at its discretion, allows the child to be present or if the court feels that the child's presence will serve the best interest of the child.
* The court may ask the parent(s) or guardian of the child for their written consent to the adoption. It may ask the same from the child who is to be adopted if over 10 years of age and the court is satisfied that the child understands the nature and significance of the consent.
* If, at any stage of the proceedings, the court thinks that there are reasonable grounds for not asking the natural parent’s consent, the court shall request the clerk of the children’s court to serve a notice or Form 22, Notice to parent to advance reasons in terms of regulation 21 (4), on the parent concerned. This notice will ask the parent to appear in that children’s court if the parent wants to give reasons why the consent should not be dispensed with.
* If the parent is not present at children’s court on the day of the proceedings the court is satisfied that:
- proper notice was served on the parent and there is no apparent reason for the parent’s failure to appear, the court may immediately hold the hearing and give judgment
- proper notice was not or could not be served on the parent the court may, at its discretion, serve the notice on the parent once again as it may deem fit, or immediately hold the hearing and give judgment.
* When the children’s court considers an application for adoption, the mere submission of a written report by an accredited social worker or any other authoritative person shall be prima facie (legally sufficient) proof of the facts stated in the report
* Any party who is directly affected by the report can ask that its contents be disclosed. This will be done at a formal hearing.
* If the affected party(s) wants to do so, they will be given the opportunity to cross-examine (question) the author of the report on any matter arising from the report, and to refute any statement appearing in it.
* The commissioner concerned will clearly explain to the affected party the consequences of failing to refute or dispute statements that appear in the report.
* At the hearing of an application, the applicant and the parent on whom a notice was served shall have the same rights and powers as someone who is involved in a civil action in a magistrate’s court in respect of examining witnesses, giving evidence and addressing the court.
* Where an order for the adoption has not been granted, or where consent to adopt a child has been withdrawn, the child’s parent or guardian can ask the court to restore the child to the custody. This request can be made through an accredited social worker or person designated by the children’s court and by using Form 21C, Notice to prospective adoptive parent for release of child to custody of parent or guardian. However, this will only be done if it is in the best interests of the child.
* The order of adoption shall be given on Form 14.
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