Is it possible to adopt a 16-year-old asylum seeker from the DRC?

The long answer

According to the Children’s Act no 38 of 2005, a person under the age of 18 years is considered a child and may be legally adopted.

The Act says that any (my emphasis) child may be adopted if the child is an orphan, or parents cannot be established, or has been abandoned, abused or neglected by parents or guardians/caregivers. But the list also includes two provisions that may relate to your situation: 

• The child needs a permanent home

• The prospective adoptive parents are fit and proper to be entrusted with full parental rights and responsibilities, and are properly assessed by an adoption social worker.

Each parent of the child, whether or not they are married, must give consent to the adoption. The child too, as he is over 10 years old, must give his consent. This consent must be in writing, signed by the person giving the consent, and it must be verified in the Children’s Court. (Any magistrate’s court can act as a children’s court.) Each person consenting has up to 60 days to withdraw consent, so a Children’s Court must not allow the adoption to be finalised before 60 days has expired.

The process of adoption is a lengthy one:

• First, a notice must be served on each parent by the sheriff of the court asking for consent to the adoption.

• An adoption social worker must hold an interview and then draw up a report with information about the child, his medical records, whether the child can/should be adopted if the adoption will be in his best interests, and if the prospective adoptive parents are suitable.

• An application for the adoption of the child must be made in the Children’s Court and must be accompanied by the social worker’s report, a letter from the provincial head of Social Development recommending the adoption, and the signed consent forms from the child and his parents. (All the forms, including the application form, can be obtained from the magistrate’s / children’s court.)

The Children’s Court has to take into consideration the religious, cultural and community background of the child and his parents, and that of the prospective parents. Finally, it must decide whether the adoption is in the best interests of the child.

If the court agrees to the adoption, the child will be regarded as the biological child of the adoptive parents, and all the parental rights and responsibilities of the child’s biological parents will come to an end. The child will take the surname of his adoptive parents unless the court says otherwise. The adoption court order must be taken to Home Affairs, together with the child’s birth certificate, to record the adoption and change in surname, if applicable.

You may be liable for fees to the social work agency which assisted with the adoption.

The child can apply for citizenship through descent at Home Affairs, and will need to take the following documents:

• His unabridged birth certificate

• Proof of his adoptive parents’ identity

• A copy of the adoption order

• An application for an ID (DHA-9) as he is older than 15 years.

If you should run into any obstacles because the child is an asylum seeker, you could ask the following organisations for help and advice:

• Lawyers for Human Rights (Refugee and Migrant Rights Programme (RMRP)) at

          Johannesburg: 011 339 1960

          Cape Town: 021 424 8561 

          email: lhr@lhr.org.za

• Legal Resources Centre: email: info@lrc.org.za

• Scalabrini Centre (Cape Town)

Tel: 021 465 6433

Email: info@scalabrini.org.za

• PASSOP (Cape Town)

021 762 0322

Wishing you the best,
Athalie