Mothers win case against “cultural” adoption guidelines

The Supreme Court of Appeal has slammed the Department of Social Development’s “cultural” guidelines for adoption. Graphic: Lisa Nelson

• “Cultural” adoption guidelines used by the Department of Social Development and its social workers are unlawful, the Supreme Court of Appeal (SCA) has found.
• The judges upheld a decision by the Gauteng High Court that the guidelines were unconstitutional.
• Justice Nambitha Dambuza said culture could be a consideration in adoption, but the Children’s Act did not set a hierarchy.
• In the cases of two babies which had been adopted, social workers had been “brazen” and “misguided” in attempting to meddle.

Five judges of the Supreme Court of Appeal (SCA) have condemned the Department of Social Development and its social workers for their unlawful meddling in adoptions.

In 2022, Johannesburg High Court Judge Fiona Dippenaar ruled that adoption guidelines used by the department and its social workers were stigmatising and delaying adoptions, apparently for cultural reasons.

Judge Dippenaar ruled that the adoption guidelines were unconstitutional and referred the social workers’ conduct to the South African Council for Social Service Professions.

The Minister of Social Development and the MEC for Social Development in Gauteng were granted leave to appeal on the constitutionality issue and on the referral.

The case was brought by the mothers of two babies, both young students, who wanted the children to be adopted. They did not want their own families to know about this. They used the services of a private social worker.

In both instances, the biological fathers had no interest in the children.

But in both cases, several department social workers meddled in the lawful adoption process, seemingly intent on placing the children with biological relatives.

In a judgment handed down on Tuesday, Justice Nambitha Dambuza, writing for the court, said the government parties, in the appeal, had persisted in their argument that adoption proceedings must start afresh because the application documents were not “compliant”.

This was in spite of the fact that the adoption of baby “B” was finalised in May 2023 and the adoption of baby “L” in August 2023.

In addition, Dambuza said, the High Court had been correct to find that the approach adopted by the department and its social workers was wrong.

They had conflated the provisions of the Children’s Act, which provided for two different processes: one, triggered by concern for a child’s safety, under which a child can be removed from a family, and the other, which governed the adoption process.

The mothers of the babies had consented to the adoptions. The fathers’ lack of interest was indisputable. This meant that the role of the government social workers was limited to gathering information, counselling the mothers, assessing the children and the adopting families, and preparing a report and a letter of recommendation.

However, their “misguided approach” had been fuelled by the guidelines which dictated that a priority was for the child to be placed with his or her biological family, extended family, within the “community” or, at least, within his or her own culture before any consideration of adoption by family from other cultural or race groups.

Cross-cultural adoption should only be considered as a “second option”.

Dambuza said she agreed with the findings of the High Court that the guidelines added requirements for adoption additional to those prescribed in the Act and this was “impermissible”.

In the cases of babies B and L, the social workers’ determination to place them with biological families was driven by these principles.

She described their conduct as “brazen” and “unauthorised”. They had communicated with both mothers’ parents about their daughters’ pregnancies and the impending adoption. They had initiated unfounded investigations into the adoptions. They had removed baby B from hospital and placed him in a place of safety, which resulted in him being exposed to seriously unhealthy living conditions.

They had also approached the children’s court for an order that baby B was a child in need of care.

“Their lack of appreciation of their role in adoptions and the empathetic framework that balances the competing rights and complex emotions at play during adoption is of great concern,” Dambuza said.

“Drawing this conduct to the attention of the relevant professional body, as the High Court did, is necessary.”

Dambuza said that the overarching consideration in adoptions was the best interest of the child. Culture might be one of the relevant components, but the Act did not set a “hierarchy”.

In the cases of babies B and L, their adoptive families were the only families they had ever had and “there was no conceivable reason why they should be wrenched from their families”.

“The government parties’ lack of insight and persistence in seeking to have the children removed from their families is gravely unsettling, particularly given the role they are tasked to play in adoption proceedings,” she said.

The court dismissed the appeal and ordered the government parties to pay the costs.

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