Giving up a child for adoption | Western Cape Government

Giving up a child for adoption

Description:

Adoption

Giving up a child for adoption requires careful consideration of the following facts to ensure that it's in the best interest of the child.

How the process works

In terms of section 233(4) of the Children’s Act 38 of 2005, a person must prove that he or she was counseled by an adoption social worker before signing permission for the adoption.

The presiding officer must in private explain to the parent exactly how and when all parental rights will be transferred to the adoptive parents.  All legal guardians must go through this same procedure, this includes the maternal grandparents in the case of a minor birth mother, as well as the child if the child is over the age of 10. The parental rights are only cancelled when the final adoption order is signed and not when Form 61 is signed. A post-adoption agreement, which allows the parent future contact with the child, can be made through a court order at the same time when the adoption order is signed.

It's not possible to simply sign away parental responsibilities. Parental rights and legal ties which bind a child to other relatives are only terminated when the final adoption order is signed and not when Form 61 is signed. 

Two different, but equally legal, ways of adoption are possible in terms of the Children’s Act:

  • disclosed adoption: where the parties know each other’s identity for instance stepfamily or foster parents, or

  • non-disclosed adoption: where a child is to be matched with non-relatives unknown to the parents. 

Giving consent

Both the mother and the father must consent to allow the adoption by a specific person or persons. If the child is 10 years and older, the child must also consent to the adoption. If the child is in foster care, the foster parents must also certify that they don't wish to adopt the child.

Consent is given in the following way:

  • If you're a parent or guardian of the child, complete Form 61, consent must be given the by parent or guardian to the adoption of a child.

  • If you're a child that's 10 years of age or older, complete Form 62, consent must be given by the child to adoption.

  • Consent must be given in writing. If it's given in South Africa, the person or persons giving the consent must sign it in the presence of a presiding officer of the children's court, who shall then attest to the consent.

  • Consent granted outside South Africa must be signed in the presence of and attested to by an officer in the service of a South African diplomatic or consular mission, or by a judge, magistrate, justice of the peace or public officer of the country concerned.

  • Although the consent should contain the names of the proposed adoptive parents, the children's court may admit consent by the child's parents or guardian which doesn't contain the names or any other particulars of the proposed adoptive parents if it's satisfied that the best interests of the child will be served thereby.

Consent isn't necessary (this isn't automatic, as the court needs to make a factual finding) if:

  • the child is an orphan and has no guardian or caregiver who is willing and able to adopt the child and the court is provided with certified copies of the child's parents or guardians death certificate or such other documentation as may be required by the court;

  • the parent or guardian is incompetent to give consent due to mental illness;

  • the parent or guardian has abandoned the child, or if the whereabouts of that parent or guardian can't be established, or if the identity of that parent or guardian is unknown;

  • the parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected;

  • the parent or guardian has consistently failed to fulfill his or her parental responsibilities towards the child during the last 12 months;

  • the parent or guardian has been divested by an order of a court of the right to consent to the adoption of the child; or

  • the parent or guardian has failed to respond to a notice of the proposed adoption (referred to in section 238 of the Children’s Act 38 of 2005) within 30 days of service of the notice.

AdoptionIf the parent referred to above is the biological father of the child, the consent of that parent to the adoption isn't necessary if:

  • that biological father isn't married to the child's mother or wasn't married to her at the time of conception or at any time thereafter and hasn't acknowledged that he is the biological father of the child. The biological father can acknowledge that he is the biological father of a child:

    • by giving a written acknowledgment that he is the biological father of the child either to the mother or the clerk of the children's court before the child reaches the age of six months;

    • by voluntarily paying maintenance in respect of the child;

    • by paying damages in terms of customary law; or

    • by causing particulars of himself to be entered in the registration of birth of the child.

  • the child was conceived from an incestuous relationship between that biological father and the mother; or

  • the court, following an allegation by the mother of the child, finds on a balance of probabilities that the child was conceived as a result of the rape of the mother: Provided that such a finding shall not constitute a conviction for the crime of rape.

Biological parents can withdraw their consent within 60 days of signing the consent form by signing a Form 64.

Consenting to the adoption of a child is often a difficult thing to do and child protection organisations and the Department of Social Development will provide support services to assist you.

Instructions:

For more information contact your Local Office of the Department of Social Development or a child protection organisation in your area.

 

Provided by:
Government Body: (Western Cape Government)
The content on this page was last updated on 26 July 2019