CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 08/00
THE MINISTER FOR WELFARE AND
POPULATION DEVELOPMENT Applicant
versus
SARA JANE
FITZPATRICK First Respondent
BENEDICT PAUL FITZPATRICK Second
Respondent
DIRK ABRAHAM JOHN UIJS Third Respondent
[in his capacity as
curator ad litem
to the minor child]
Heard on : 9 May 2000
Decided on : 31 May
2000
JUDGMENT
GOLDSTONE J:
Introduction
| [1] | Mr and Mrs Fitzpatrick (the
respondents) are British citizens who have been living permanently in South
Africa since March 1997.
Mr Fitzpatrick works for a United States corporation
and expects to be transferred to the United States. The respondents wish to
adopt a minor child, to whom I shall refer as “the child”, who was
born to a South African citizen. However, section
18(4)(f) of the Child Care
Act[1] (the Act) absolutely proscribes
the adoption of a child born of a South African citizen by a non-citizen or by a
person who has the
necessary residential qualifications for the grant of South
African citizenship but has not applied for a certificate of
naturalisation.[2] |
| [2] | The respondents applied to
the Cape of Good Hope High Court for an order declaring section 18(4)(f) to be
inconsistent with the Constitution
and therefore invalid. In the alternative
they applied to be appointed as joint guardians of the child and to be awarded
joint custody
and control of the child. Mr DAJ Uijs SC, the third respondent,
was appointed by the High Court as curator ad litem to represent the
child in the proceedings. I shall refer to him as “the curator”.
He supported the grant of the relief
sought by the respondents.
|
| [3] | In the High Court the
Minister for Welfare and Population Development (the Minister) conceded that the
provisions of section 18(4)(f)
were unconstitutional to the extent that they
proscribed the adoption of a child born of a South African citizen by persons
who are
not South African citizens or persons who qualify for naturalisation but
have not applied therefor. However, she sought and was
granted an order
suspending the declaration of invalidity for a period of two years in order to
allow Parliament to correct the defect
in the legislation. It follows that
during the period of the suspension it is not possible for the respondents to
adopt the child.
With the support of the Minister, the High Court appointed the
respondents as the joint guardians of the child and awarded them
joint custody
and control of the child. |
| [4] | In terms of the provisions
of sections 167(5)[3] and 172(2)(a)
and (d)[4] of the Constitution the
Minister now approaches this Court for confirmation of the order of the High
Court. The curator was invited
by the Court to furnish it with a written report
on whether the interests of the child are likely to be affected by any order
this
Court might make in the confirmation proceedings. In his report, the
curator informed us that there would be no appearance on behalf
of the
respondents who are possessed of no further funds with which to pursue their
opposition to the suspension of the order and
accept that they will not be able
to adopt the child until the period of suspension has expired. However, in the
view of the curator,
the child’s interests would best be served by an
immediate adoption order in favour of the respondents and for that reason
he
opposed the suspension of the order of
invalidity. |
| [5] | Having regard to the
non-appearance of the respondents, the Centre for Applied Legal Studies at the
University of the Witwatersrand
was requested by the Court to act as an amicus
curiae and to submit written argument. The amicus was invited also to make oral
submissions
and that was done most helpfully by Professors Unterhalter and
Mosikatsana. Their assistance is much appreciated by the
Court. |
The Background
| [6] | The suitability of the
respondents as parents of the child is not in dispute. However, it would be for
the children’s court,
and not this Court, to assess an application by the
respondents for the adoption of the child. I refer to the respondents’
circumstances only as illustrative of why the child’s best interests may
be prejudiced by the current formulation of section
18(4)(f) of the
Act. |
| [7] | The respondents were married in
England and four children were born of their marriage. The eldest is 12 years
and the youngest 5
years. From November 1994 to March 1997 the respondents
lived in the state of Oklahoma in the United States of America. During
that
period they qualified to foster infant children and fostered ten infants with
stays ranging from a few weeks to fifteen months.
After their arrival in Cape
Town, the respondents contacted and were interviewed by the Child Welfare
Society of South Africa and
obtained approval to act as foster parents in South
Africa. The Child Welfare Society of South Africa employs social workers as
defined by the Act[5] who are
registered in terms of the provisions of the Social Service Professions
Act.[6] In October 1997 the
respondents had two-month-old twins placed with them for three weeks after which
the twins were placed with
their adoptive
mother. |
| [8] | In November 1997, the child,
then aged two and a half months, was placed with the respondents. He had been
neglected and then abandoned
by his biological parents soon after his birth. In
March 1998 the child was moved to another foster home. The respondents
supported
the move, believing that the provisions of section 18(4)(f) of the Act
would preclude them from adopting the child. A month later,
in April 1998, the
child was returned to the respondents because he had not settled in his new
foster home. |
| [9] | A strong bond had already
been forged between the respondents, their children and the child and the
respondents decided to take whatever
steps were necessary to adopt the child.
In this endeavour the respondents were assisted by Ms Janine Kleynhans, a social
worker
employed by the Child Welfare Society of South Africa. The considerable
effort expended by Ms Kleynhans to further the best interests
of the child is
commendable. Through her offices the respondents and the curator made contact
with the biological parents of the
child. After some initial prevarication the
biological parents consented to the adoption. |
| [10] | The curator, a senior
member of the Cape Town Bar, thoroughly investigated the unusual and difficult
circumstances of this case.
He furnished the High Court with a full and
informative report of his investigations and made helpful submissions on the
legal position.
I would like to express my admiration for that investigation
and report and also express my gratitude for the valuable assistance
he
subsequently afforded this Court in a supplementary report. It emerges from the
report that the biological parents are incapable
of looking after the child and
that this situation is unlikely to change. On the other hand, with regard to
the home of the respondents,
the curator says: |
“In short, the visit at the home of the Fitzpatricks with the Fitzpatrick
family was a pleasure, and to observe the family
interact was to receive a
rather humbling lesson in good parenting.”
| [11] | Both Ms Kleynhans and the
curator firmly support the adoption of the child by the respondents. The
curator points out that there
are no members of the biological family of the
child who would be suitable foster parents and that most other prospective
adoptive
parents would wish to adopt a younger child. He states further that
unless the child is adopted by the respondents, he will spend
his early years in
foster care and his later years in an institution.
|
| [12] | That the best interests of
the child lie in his being adopted by the respondents is accepted by the
Minister and the amicus curiae.
I have referred to sufficient facts to indicate
the background against which they do so. It remains only to mention that Mr
Fitzpatrick
has been able to delay his transfer back to the United States until
2003 in order to enable his wife and himself to pursue their
endeavours to adopt
the child. |
The Issues
| [13] | There are two broad issues
which we are required to consider. They
are: |
(a) whether the provisions of section 18(4)(f) are in conflict with the
Constitution; and
(b) if so, the form of the order that should be made and, in particular, whether
an order of invalidity should be suspended.
I shall
consider each in turn.
The Constitutionality of Section 18(4)(f) of
the Act
| [14] | Presumably in the light of
the Minister’s acceptance of the unconstitutionality of the section, the
High Court’s judgment
gives no consideration to this question. In order
to confirm the order of invalidity this Court must, of course, be satisfied on
that score. Counsel for the Minister submitted that the provisions of the
section were inconsistent with the rights to equality
(section 9 of the
Constitution), human dignity (section 10 of the Constitution) and the rights of
the child (section 28 of the Constitution).
Counsel for the amicus curiae
relied on sections 9 and 28 but not section 10. |
| [15] | We are concerned in this
case with the rights of both the respondents as prospective adoptive parents on
the one hand, and the rights
of the child, on the other. The equality attack
relies primarily on unfair discrimination against prospective adoptive parents
and
indirectly against the children concerned; the human dignity attack is based
on the effect of the impugned provision on the prospective
adoptive parents,
whilst the reliance on section 28 is concerned solely with the rights of
children. |
| [16] | I have reached the firm
view that section 18(4)(f) of the Act, to the extent that it absolutely
proscribes adoption of a South African
born child by non-South Africans, is
inconsistent with the provisions of section 28 of the Constitution. The section
reads as follows: |
“28 (1) Every child has the
right—
(a) to a name and nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when
removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services
that—
(i) are inappropriate for a
person of that child’s age; or
(ii) place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in
addition to the rights a child enjoys under sections
12 and 35, the child may be
detained only for the shortest appropriate period of time, and has the right to
be—
(i) kept separately from
detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the
child’s age;
(h) to have a legal practitioner assigned to the child by the state, and at
state expense, in civil proceedings affecting the child,
if substantial
injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times of
armed conflict.
(2) A child’s best interests are of paramount importance in every matter
concerning the child.
(3) In this section ‘child’ means a person under the age of 18
years.”
| [17] | Section 28(1) is not
exhaustive of children’s rights. Section 28(2) requires that a
child’s best interests have paramount
importance in every matter
concerning the child. The plain meaning of the words clearly indicates that the
reach of section 28(2)
cannot be limited to the rights enumerated in section
28(1) and section 28(2) must be interpreted to extend beyond those provisions.
It creates a right that is independent of those specified in section 28(1).
This interpretation is consistent with the manner in
which section 28(2) was
applied by this Court in Fraser v Naude and
Others.[7] |
| [18] | In 1948 the Appellate
Division first gave paramountcy to the standard of the “best interests of
the child”.[8] It held that in
deciding which party should have the custody of children on divorce the
“children’s best interests must
undoubtedly be the main
consideration.”[9] The decision
ran counter to the traditional approach in terms of which the “innocent
spouse” in divorce proceedings
was granted custody of the children. Since
then the “best interests” standard has been applied in a number of
different
circumstances.[10]
However, the “best interests” standard appropriately has never been
given exhaustive content in either South African
law or in comparative
international or foreign law.[11]
It is necessary that the standard should be flexible as individual circumstances
will determine which factors secure the best interests
of a particular
child.[12]
|
| [19] | The facts of the instant case clearly
illustrate that the best interests of a child born to South African parents may
well lie in
such child being adopted by non-South African adoptive parents. It
is not difficult to find other illustrations. South African
parents may die
leaving close non-South African relations in a foreign country. It might well
be in the best interests of such an
orphaned child to be adopted by those
relations. Moreover, South African nationality is no guarantee that adoptive
parents will
continue to reside within the jurisdiction of South African social
welfare services. What is more, the protection conferred by section
18(4)(f)
does not extend to children, orphaned or abandoned in South Africa, but born of
non-South African parents. |
| [20] | The provisions of section
18(4)(f) are too blunt and all-embracing to the extent that they provide that
under no circumstances may
a child born to a South African citizen be adopted by
non-South African citizens. To that extent they do not give paramountcy to
the
best interests of children and are inconsistent with the provisions of section
28(2) of the Constitution and hence invalid.
The Minister, correctly, has not
sought, either in the High Court or in this Court, to attempt to justify the
limitation of section
28(2) and the provisions of section 36 of the Constitution
do not fall to be considered. No grounds of justification were advanced
in the
affidavits, nor can we discern any. |
| [21] | Having found the provisions
of section 18(4)(f) inconsistent to the extent indicated it becomes unnecessary
to consider whether they
are also inconsistent with the rights of prospective
adoptive parents which might be protected by the provisions of sections 9 and
10
of the Constitution. It follows that the order of invalidity made by the High
Court should be confirmed. |
The Suspension of
the Order of Invalidity
| [22] | The interests of the
respondents to have the order of invalidity take immediate effect are obvious.
They wish to have finality with
regard to the adoption of the child. Mr
Fitzpatrick is to be transferred to the United States of America and it is in
the interests
of the respondents and the child that the status of the child be
determined finally before they leave South Africa. Furthermore,
as emphasized
by the curator, should either or both of the respondents die prior to the
adoption of the child, the latter’s
prospective rights of inheritance
would be prejudiced. Both the Minister and the amicus curiae accepted that it
is in the best interests
of the child and the respondents for the order to have
immediate effect. |
| [23] | The Minister and the amicus
curiae expressed concern that were section 18(4)(f) to be struck down with
immediate effect, there would
be inadequate regulation and infrastructure for
adoptions of children born of any South African citizen by prospective parents
who
are non-citizens. The Minister and the amicus curiae articulated three
specific problems that could
result: |
(a) the inability of the Department of Welfare and Population Development (the
Department) to facilitate thorough background investigations
of
non-citizens;
(b) insufficient legislative protection against trafficking in children; and
(c) inadequate provision to give effect to the principle of
subsidiarity.[13]
| [24] | The problem concerning
background investigations stems from the understandable difficulties of
verifying information provided by applicants
from abroad and the lack of
resources the Department is able to commit thereto. The Minister suggested that
the suspension of the
order of invalidity would allow for adequate training of
officials in conducting such investigations and establishing contact with
foreign monitoring organisations, both governmental and
non-governmental. |
| [25] | With regard to the second
concern, the Minister suggested that if the order of invalidity was not
suspended there would be inadequate
safeguards against child trafficking. The
Minister cited the Hague Convention on the Protection of Children and
Co-operation in
Respect of Intercountry Adoption 1993 (the Hague Convention) to
highlight the international concern given to child trafficking.
The objects of
that convention, according to Article 1 are: |
“(a) to establish safeguards to ensure that intercountry adoptions take
place in the best interests of the child and with respect
for his or her
fundamental rights as recognized in international law;
(b) to establish a system of co-operation amongst Contracting States to ensure
that those safeguards are respected and thereby prevent
the abduction, the sale
of, or traffic in children;
(c) to secure the recognition in Contracting States of adoptions made in
accordance with the Convention.”
| [26] | The Hague Convention
contains detailed legal, administrative and procedural provisions to ensure that
its objects are fulfilled.
For example, it requires that a Contracting State
should designate a “Central Authority to discharge the duties which are
imposed by the
Convention”.[14] An adoption
is only to take place with the intervention of the “receiving
State”.[15] Provision is made
subject to safeguards for the accreditation by Contracting States of
non-governmental organisations to assist
in achieving the objects of the
Convention.[16] The submission of
the Minister was that a redrafted section 18(4)(f) should contain the kind of
safeguards and standards found in
the Hague Convention. South Africa has not
signed or ratified that convention and the Minister did not indicate that
Government
intended to do so. |
| [27] | The third concern was
addressed to the absence of any recognition of the principle of subsidiarity.
It was submitted that with regard
to adoptions by non-citizens insufficient
weight would be given to a child’s religious and cultural background. The
Minister
then referred to the provisions of the Convention on the Rights of the
Child (the Children’s
Convention)[17] which recognises
that: |
“inter-country adoption may be considered as an alternative means of the
child’s care, if the child cannot be placed
in a foster or an adoptive
family or cannot in any suitable manner be cared for in the child’s
country of
origin”.[18]
Similarly,
the Minister referred to the Hague Convention which also recognises that
intercountry adoption is an alternative form of
child care. Such adoption may
take place under the convention only after the “possibilities for
placement of the child within
the State of origin have been given due
consideration”, and it has been determined that “an intercountry
adoption is
in the child’s best
interests”.[19]
| [28] | With these three concerns
in mind the Minister and the amicus curiae recommended that the order of
invalidity be suspended for two
years to enable the necessary legislation and
infrastructure to be put in place. The Minister stated that child care
legislation
was presently under review by the South African Law Commission which
has appointed a project committee to review the Act and prepare
comprehensive
child care legislation. |
| [29] | These are legitimate
concerns. In my opinion, however, the decision as to whether an order of
invalidity of section 18(4)(f) should
be suspended must depend upon the extent
to which the remaining provisions of the Act are capable of meeting the concerns
of the
Minister and the amicus curiae. It is to that topic that I now
turn. |
| [30] | In terms of the Act every
magistrate is a commissioner of child welfare (commissioner) and every
additional and assistant magistrate
is an assistant
commissioner.[20] These trained
judicial officers preside over children’s
courts[21] which are the sole
authority empowered to grant orders of
adoption.[22] No adoption order may
be made before the consideration of a prescribed report from a social
worker.[23] In considering any
application for adoption, the children’s court is obliged to have regard
to the religious and cultural
background of the child “and of his [or her]
parents as against that of” the adoptive parent or
parents.[24] A children’s
court may not grant an adoption unless it is satisfied, inter alia,
that: |
(a) the applicants are possessed of adequate means to maintain and educate the
child;[25]
(b) the applicant or applicants are of good repute and a person or persons fit
and proper to be entrusted with the custody of the
child;[26]
(c) that the proposed adoption will serve the interests and conduce to the
welfare of the child;[27]
(d) subject to the exceptions contained in section 19 and in section 18(4)(d),
that the consent to the adoption has been given by
the parents of the
child.[28]
Save
for exceptions not now relevant,[29]
no person may “give, undertake to give, receive or contract to receive any
consideration, in cash or kind, in respect of the
adoption of a
child.”[30] A contravention
of this provision is a criminal
offence.[31]
| [31] | According to the Act, it is
the children’s courts that are charged with overseeing the well-being of
children, examining the
qualifications of applicants for adoption and granting
adoption orders. The provisions of the Act creating children’s courts
and
establishing overall guidelines advancing the welfare of the child offer a
coherent policy of child and family welfare. If appropriately
and
conscientiously applied by children’s courts the main provisions of the
Act would meet the most serious of the concerns
of the Minister and the amicus
curiae. The provisions of section 24 of the Act are designed to deter the
practice of child trafficking,
making the exchange of consideration in an
adoption a criminal offence. Until the safeguards and standards envisaged by
the Minister
are introduced, children’s courts are able to prevent the
feared abuses in the cases of citizens and non-citizens
alike.[32] |
| [32] | The concerns that underlie
the principle of subsidiarity are met by the requirement in section 40 of the
Act that courts are to take
into consideration the religious and cultural
background of the child, on the one hand, and the adoptive parents, on the
other.[33] |
| [33] | Finally, the other
provisions of the Act address the problems surrounding the verification of
background information from foreign
applicants for adoption. A social worker
unable to verify facts relating to the foreign applicant’s background
would be required
to bring that to the attention of the children’s court.
Consequently, if the children’s court is not satisfied with
the
verification of any information relevant to the adoption, the application would
necessarily have to be denied. In that event
the court would not be able to
satisfy itself on the matters referred to in paragraph 30 above and, in terms of
section 18 of the
Act, would be obliged to refuse the order. A related concern
is that without bilateral agreements between South Africa and the foreign
state,
there could not be effective post-adoption monitoring in respect of intercountry
adoptions. This may be correct but again,
that state of affairs exists even
with section 18(4)(f) when South African adoptive parents emigrate.
Furthermore, it could take
many years to negotiate bilateral agreements with all
of the relevant foreign governments. The absence alone of such agreements,
in
my opinion, is not a justification for suspending the order of
invalidity.[34]
|
| [34] | It follows, in my opinion,
that if non-South African citizens apply for the adoption of a child born to a
South African citizen, the
provisions of the Act enable the children’s
court to prevent the abuses and meet the concerns expressed by the Minister and
the amicus curiae. The fact that they have been so fully and helpfully
canvassed in this Court and the terms of this judgment will
effectively alert
the judicial officers concerned with applications for adoption to these matters.
This judgment and especially paragraphs
30-33 should be brought to the attention
of all commissioners and assistant commissioners of the children’s courts
and all
social workers engaged in adoption
matters.[35] In effect, until the
amended legislation, administrative infrastructure and international agreements
envisaged by the Minister are
in place, foreign applicants will have a greater
burden in meeting the requirements of the Act than they will have thereafter.
They
will have to rely on their own efforts and resources in placing all
relevant information before the children’s court.
|
| [35] | The High Court, in deciding
to suspend the order of invalidity, found that the considerations which induced
this Court to order suspension
of its order in the Fraser
case[36] were analogous. I do not
agree. In that case this Court held that dispensing with the consent to
adoption of the father of an illegitimate
child was unconstitutional and
invalid. The effect of striking down that provision would have the consequence
that the consent of
both parents of such a child would be necessary, save in
cases covered by section 19 of the Act. Mahomed DP pointed out that , for
example, the consent of a father of a child born in consequence of the rape of
the mother or of an incestuous relationship would
be able to assert that his
consent should first be procured before an adoption order could be
granted.[37] The learned Judge held
that Parliament might find that result gravely objectionable. Reference was
also made to the position of
a father of a child conceived in consequence of a
“very casual relationship” on the one hand, and that of a father to
an informal but enduring relationship, on the other. The matters which needed
to be catered for by relevant amending legislation
were not met at all by the
existing legislation. In particular there were no legislative provisions which
regulated the circumstances
in which an illegitimate father might not be
entitled to be consulted with regard to the adoption of his child. It was held
to be
in “the interests of justice and good
government”[38] that proper
legislation should govern the rights of parents of children born out of a
relationship between them which has not been
formalized by marriage. Those
considerations led this Court to suspend the order of invalidity for a period of
two years to enable
Parliament to correct the defect in the
Act. |
| [36] | In this case, by contrast,
as explained above, there are legislative safeguards in place. Moreover, the
best interests of the child
and similarly situated children will be prejudiced
by such a suspension. Their status will be suspended with obviously detrimental
consequences. On balance, for the reasons that I have furnished, the public
interest, “the interests of justice and good
government”[39] will not be
served by an order suspending the declaration of
invalidity. |
| [37] | It follows that the order
of invalidity granted by the High Court in terms of section 172(1)(a) of the
Constitution should be confirmed.
However, the ancillary order that the High
Court made under subparagraph (b)(ii) of that section, suspending the operation
of the
order of invalidity, is not warranted and should be set aside. It was
agreed by the parties to the appeal that there should be no
order as to
costs. |
Order
1. The order declaring section 18(4)(f) of the Child Care Act to be inconsistent
with the Constitution and invalid to the extent
that it constitutes an absolute
proscription of the adoption of a child born of a South African citizen by
persons who are not South
African citizens or persons who qualify for
naturalisation but have not applied for citizenship is confirmed.
2. The order of suspension of the order of invalidity for a period of two years
is set aside.
3. The Minister for Welfare and Population Development is requested to ensure
that this judgment is brought to the attention of all
commissioners and
assistant commissioners of the children’s court and social workers in the
employ of the Department.
4. There is no order as to costs.
Chaskalson P, Langa
DP, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J, Yacoob J and
Cameron AJ concur in the judgment of
Goldstone
J.
For the Applicant: RF Van Rooyen instructed by the State Attorney, Cape
Town.
Amicus Curiae: D Unterhalter and T Mosikatsana on behalf of the Centre for
Applied Legal Studies.
[1] Act 74 of 1983.
[2] Section 18(4)(f) reads as
follows:
“A children’s court to which application for an order of adoption is
made in terms of subsection (2), shall not grant
the application unless it is
satisfied—
. . . .
(f) in the case of a child born
of any person who is a South African citizen, that the applicant, except an
applicant referred to
in section 17(c), or one of the applicants is a South
African citizen resident in the Republic, or the applicant has or the applicants
have otherwise the necessary residential qualifications for the grant to him or
them under the South African Citizenship Act, 1949
(Act No. 44 of 1949), of a
certificate or certificates of naturalisation as a South African citizen or
South African citizens and
has or have made application for such a certificate
or certificates”.
Section 17(c) creates an exception for a married person whose spouse is the
biological parent of the child.
[3] Section 167(5) reads as
follows:
“The Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President
is constitutional, and
must confirm any order of invalidity made by the Supreme Court of Appeal, a High
Court, or a court of similar
status, before that order has any
force.”
[4] Section 172(2)reads, in relevant
part, as follows:
“(a) The Supreme Court of Appeal, a High Court or a court of similar
status may make an order concerning the constitutional
validity of an Act of
Parliament, a provincial Act or any conduct of the President, but an order of
constitutional invalidity has
no force unless it is confirmed by the
Constitutional
Court.
. . . .
(d) Any person or organ of state with a sufficient interest may appeal, or
apply, directly to the Constitutional Court to confirm
or vary an order of
constitutional invalidity by a court in terms of this
subsection.”
[5] Social worker is defined as
follows in section 1 of the Act:
“[A]ny person registered as a social worker under the Social Work Act,
1978 (Act No. 110 of 1978), or deemed to be so registered,
and who, save for the
purposes of section 42, is in the service of a state department or provincial
administration or a prescribed
welfare
organization”.
The Social Work Act, as amended by section 24 of the Social Work Amendment Act,
102 of 1998, is now known as the Social Service Professions Act, 1978.
[6] Act 110 of 1978.
[7] 1999 (1) SA 1 (CC); 1998 (11) BCLR
1357 (CC). In that case a parent was denied the right to re-open adoption
proceedings finalised almost three years earlier. In refusing
an application
for leave to appeal from the SCA, Chaskalson P, with the unanimous approval of
the members of the Court, applied section
28(2) and its standard of the
“child’s best interests” as a discrete principle.
[8] Fletcher v Fletcher 1948
(1) SA 130 (A).
[9] Id at 134. The Court, however,
did not articulate what would constitute the best interests of a child nor did
it set out any particular
criteria to be considered.
[10] In B v S 1995 (3) SA 571
(A) the court recognised that access would always be available to the biological
father of an illegitimate child if such access were
in the child’s
“best interests”. In K v K 1999 (4) SA 691(C), the court
held that in the “best interests” of the particular child, his
circumstances dictated that the court of habitual
residence, in this instance
the United States of America, would be best suited to make orders in respect of
his future custody.
In S v Howells 1999 (1) SACR 675 (C), the court
considered the “best interests” of the appellant’s children in
determining her sentence but found
that the interests of society outweighed the
children’s interests.
[11] Article 3(1) of the Convention
on the Rights of the Child provides that:
“In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities
or legislative bodies, the best interests of the child shall be a primary
consideration.”
Article 4(1) of the African Charter on the Rights and Welfare of the Child
similarly provides that:
“In all actions concerning the child undertaken by any person or authority
the best interests of the child shall be the primary
consideration.”
J Wolf, commenting on the Convention on the Rights of the Child, writes that,
unlike phrases traditionally used to formulate rights,
“there is another,
which still is very vague and which may even become the subject of considerable
dispute, namely the phrase
‘in the best interest of the
child’”. Wolf “The Concept of the ‘Best Interest’
in Terms of the
UN Convention on the Rights of the Child” in The
Ideologies of Children’s Rights Freeman and Veerman (Martinus Nijhoff
Publishers, Dordrecht 1992) at 125. G Van Bueren, also writing on the
Convention on the Rights
of the Child and the “best interests”
standard, states that “[t]he list of factors competing for the core of
best
interests is almost endless and will depend on each particular factual
situation.” The International Law on the Rights of the Child
(Martinus Nijhoff Publishers, Dordrecht 1995) at
47.
[12] This exercise has been engaged
in by South African courts. For example, McCall v McCall 1994 (3) SA 201
(C) at 205, in the context of the custody of a child, set out a list of criteria
which should be taken into account in determining
the best interests of the
child. That list has been accepted as a guide in custody cases in a number of
High Court decisions. See
K v K above n 10 at 709C-J; Bethell v Bland
and Others 1996 (2) SA 194 (W) at 208F-209D; Ex parte Critchfield and
Another 1999 (3) SA 132 (W) at 142B-E.
[13] Subsidiarity refers to the
principle that intercountry adoption should be considered strictly as an
alternative to the placement
of a child with adoptive parents who reside in the
child’s country of birth. See the text accompanying n 19 below.
[14] Article 6(1).
[15] Articles 5, 14, 15 and 17.
[16] Articles 10, 11 and 12.
[17] South Africa ratified this
convention on 16 June 1995.
[18] Article 21(b).
[19] Article 4(b).
[20] Section 6(1).
[21] Section 7(1).
[22] Section 18(1)(a).
[23] Section 18(1)(b).
[24] Section 18(3) read with section
40.
[25] Section 18(4)(a).
[26] Section 18(4)(b).
[27] Section 18(4)(c).
[28] Section 18(4)(d).
[29] In terms of the Social Service
Professions Act 110 of 1978.
[30] Section 24(1).
[31] Section 24(2).
[32] Although not a concern raised
by the Minister, I would point out that the provisions of section 18(4)(f) would
not prevent child
trafficking or undesirable intercountry adoptions where the
adoptive parents happen to be South African citizens who live abroad.
[33] Although no express provision
is made for the principle of subsidiarity in our law, courts would nevertheless
be obliged to take
the principle into account when assessing the ‘best
interests of the child’, as it is enshrined in international law,
and
specifically article 21(b) of the Children’s Convention. This obligation
flows from the imperative in section 39(1)(b)
of the Constitution that
“[w]hen interpreting the Bill of Rights, a court, tribunal or forum . . .
must consider international
law”.
[34] It is not a reason advanced by
the Minister or supported in argument by the Minister’s counsel.
[35] See above n 5 and accompanying
text.
[36] Fraser v Children’s
Court, Pretoria North and Others 1997 (2) SA 261 (CC); 1997 (2) BCLR 153
(CC).
[37] Id at para 48.
[38] Id at para
51.
[39] See above n 38 and accompanying
text.
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