Inter - Country Adoption
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Below are relevant provisions regarding Inter - Country Adoption found in the Children's Act 38 of 2005.
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CHAPTER 16
INTER-COUNTRY ADOPTION
The purposes of this Chapter are -
(a) to give effect to the Hague Convention on Inter-country Adoption;
(b) to provide for the recognition of certain foreign adoptions;
(c)`to find fit and proper adoptive parents for an adoptable child; and
(d) generally to regulate inter-country adoptions.
255 International co-operation
(1) The President may on such conditions as he or she deems fit-
(a) enter into an agreement with a foreign State that is not a State Party to the Hague Convention on Inter-country Adoption in respect of any matter pertaining to the inter-country adoption of children; and
(b) enter into an agreement with a foreign State that is a State Party to the Hague Convention on Inter-country Adoption in respect of any matter pertaining to the inter-country adoption of children for the purpose of supplementing the provisions of the Convention or to facilitate the application of the principles contained therein.
(2) An agreement contemplated in subsection (1) may not be in conflict with the provisions of the Hague Convention on Inter-country Adoption.
(3) The President may agree to an amendment to or revocation of an agreement contemplated in subsection (1).
(4) An agreement contemplated in subsection (1) or an amendment to or revocation thereof, shall not be of any force or effect until such agreement, amendment or revocation has been approved by Parliament.
256 Hague Convention on Inter-country Adoption to have force of law
(1) The Hague Convention on Inter-country Adoption is in force in the Republic and its provisions are law in the Republic.
(2) The ordinary law of the Republic applies to an adoption to which the Convention applies but, where there is a conflict between the ordinary law of the Republic and the Convention, the Convention prevails.
257 Central Authority
(1) For the purposes of the Hague Convention on Inter-country Adoption, “Central Authority”-
(a) in relation to the Republic, means the Director-General; or
(b) in relation to a convention country, means a person or office designated bysuch convention country under Article 6 of the Hague Convention on Inter-country Adoption.
(2) The Director-General, after consultation with the Director-General: Justice and Constitutional Development, must perform the functions assigned by the Convention to Central Authorities.
258 Performance of functions
(1) The Central Authority of the Republic may in terms of section 310 delegate any powers or duties of the Central Authority under the Hague Convention on
Inter-country Adoption to an official in the Department.
(2) Any powers or duties of the Central Authority in terms of Articles 15 to 21 of the Convention and sections 261(3) and (4), 262(3) and (4), 264(2) and 265(2) may, to the extent determined by the Central Authority, be performed by -
(a) another organ of state; or
(b) a child protection organisation accredited in terms of section 259 to provide inter-country adoption services.
259 Accreditation to provide inter-country adoption services
(1) The Central Authority may, on application by a child protection organisation-
(a) accredit such organisation to provide inter-country adoption services; and
(b) approve adoption working agreements contemplated in section 260, as long as the prescribed requirements are met.
(2) The Central Authority may accredit a child protection organisation to provide inter-country adoption services for such period and on such conditions as may be prescribed.
(3) A child protection organisation accredited in terms of this section to provide inter-country adoption services-
(a) may receive the prescribed fees and make the necessary payments in respect of inter-country adoptions; and
(b) must annually submit audited financial statements to the Central Authority of fees received and payments made.
(4) Subsection (1) does not prohibit the rendering of professional services in connection with the adoption of a child by a lawyer, psychologist or a member of another profession.
260 Entering into adoption working agreement
(1) A child protection organisation accredited in terms of section 259 to provide inter-country adoption services may enter into an adoption working agreement with an accredited adoption agency in another country.
(2) A child protection organisation referred to in subsection (1)-
(a) must provide the Central Authority with certified copies of all adoption
working agreements entered into by that child protection organisation for approval thereof; and
(b) may not act in terms of any such adoption working agreements before it has been approved by the Central Authority.
261 Adoption of child from Republic by person in convention country
( 1) A person habitually resident in a convention country who wishes to adopt a child habitually resident in the Republic must apply to the central authority of the convention country concerned.
(2) If the central authority of the convention country concerned is satisfied that the applicant is fit and proper to adopt, it shall prepare a report on that person in accordance with the requirements of the Hague Convention on Inter-country Adoption and any prescribed requirements and transmit the report to the Central Authority of the Republic.
(3) If an adoptable child is available for adoption, the Central Authority will prepare a report on the child in accordance with the requirements of the Hague Convention on Inter-country Adoption and any prescribed requirements and forward it to the central authority of the convention country concerned.
(4) If the Central Authority and the central authority of the convention country concerned both agree on the adoption, the Central Authority will refer the application for adoption together with all relevant documents and the reports contemplated in subsections (2) and (3) to the children’s court for consideration in terms of section 240.
(5) The court may make an order for the adoption of the child if the requirements of section 231 regarding persons who may adopt a child are complied with, the application has been considered in terms of section 240 and the court is satisfied that -
(a) the adoption is in the best interests of the child;
(b) the child is in the Republic;
(c) the child is not prevented from leaving the Republic-
(i) under a law of the Republic; or
(ii) because of an order of a court of the Republic;
(d) the arrangements for the adoption of the child are in accordance with the requirements of the Hague Convention ‘on Inter-country Adoption and any prescribed requirements;
(e) the centra1 authority of the convention country has agreed to the adoption of the child;
(f) the Central Authority of the Republic has agreed to the adoption of the child; and
(g) the name of the child has been in the RACAP for at least 60 days and no fit and proper adoptive parent for the child is available in the Republic.
(6) (a) The Central Authority of the Republic may withdraw-its consent to the adoption of the child within a period of 140 days from the date on which it has consented to the adoption, if it is in the best interests of the child to do so.
(b) In the event of the Central Authority of the Republic withdrawing its consent, the child must be returned to the Republic forthwith in the prescribed manner.
(7) An order of court contemplated in subsection (5) takes effect only after the period referred to in subsection (6) has lapsed and the Central Authority has not withdrawn its consent within the stated period.
(8) This section does not apply to a child habitually resident in the Republic and who is to be placed for adoption outside the Republic with a family member of that child or with a person who will become an adoptive parent jointly with the child’s biological parent.
(9) The provisions of Chapter 15 apply to the adoption of a child referred to in
subsection (8).
262 Adoption of child from Republic by person in non-convention country
(1) A person habitually resident in a non-convention country who wishes to adopt a child habitually resident in the Republic must apply to the competent authority of the non-convention country concerned.
(2) If the competent authority of the non-convention country concerned is satisfied that the applicant is fit and proper to adopt, it shall prepare a report on that person in accordance with the prescribed requirements and transmit the report to the Central Authority in the Republic.
(3) If an adoptable child is available for adoption, the Central Authority will prepare a report on the child in accordance with the prescribed requirements and transmit it to the competent authority in the non-convention country concerned.
(4) If the Central Authority and the competent authority in the non-convention
country concerned both agree to the adoption, the Central Authority will refer the application for adoption together with all relevant documents and the reports contemplated in subsections (2) and (3) to the children’s court for consideration in terms of section 240.
(5) The court may make an order for the adoption of the child if the requirements of section 231 regarding persons who may adopt a child are complied with, the application 20 has been considered in terms of section 240 and the court is satisfied that -
(a) the adoption is in the best interests of the child;
(b) the child is in the Republic;
(c) the child is not prevented from leaving the Republic-
(i) under a law of the Republic; or
(ii) because of an order of a court of the Republic;
(d) the arrangements for the adoption of the child are in accordance with the prescribed requirements;
(e) the competent authority of the non-convention country concerned has agreed to the adoption of the child;
(f) the Central Authority has agreed to the adoption of the child; and
(g) the name of the child has been in the RACAP for at least 60 days and no fit and proper adoptive parent for the child is available in the Republic.
(6) (a) The Central Authority of the Republic may withdraw its consent to the adoption of the child within a period of 140 days from the date on which it has consented to the adoption, if it is in the best interests of the child to do so.
(b) In the event of the Central Authority of the Republic withdrawing its consent, the child must be returned to the Republic forthwith in the prescribed manner.
(7) An order of court contemplated in subsection (5) takes effect only after the period referred to in subsection (6) has lapsed and the Central Authority has not withdrawn its consent within the stated period.
(8) This section does not apply to a child habitually resident in the Republic and who is to be placed for adoption outside the Republic with a family member of that child or with a person who will become an adoptive parent jointly with the child’s biological parent.
(9) The provisions of Chapter 15 apply to the adoption of a child referred to in subsection (8).
263 Issue of adoption compliance certificate
If the children’s court has approved the adoption of a child in terms of section 261 or 262, the Central Authority may issue an adoption compliance certificate.
264 Adoption of child from convention country by person in Republic
(1) A person habitually resident in the Republic who wishes to adopt a child habitually resident in a convention country must apply to the Central Authority.
(2) If the Central Authority is satisfied that the applicant is fit and proper to adopt, it shall prepare a report on that person in accordance with the requirements of the Hague
Convention on Inter-country Adoption and any prescribed requirements and transmit the report to the central authority of the convention country concerned.
(3) If an adoptable child is available for adoption, the central authority of the convention country concerned shall prepare a report on the child in accordance with the requirements of the Hague Convention on Inter-country Adoption and transmit it to the Central Authority.
(4) If the Central Authority and the central authority of the convention country concerned both agree to the adoption, the central authority in that country will refer the application for adoption for the necessary consent in that country.
265 Adoption of child from non-convention country by person in Republic
(1) A person habitually resident in the Republic who wishes to adopt a child
habitually resident in a non-convention country must apply to the Central Authority.
(2) If the Central Authority is satisfied that the applicant is fit and proper to adopt, it shall prepare a report on that person in accordance with the requirements of the non-convention country concerned and transmit the report to the competent authority of that country.
(3) If an adoptable child is available for adoption, the competent authority of the non-convention country concerned shall prepare a report on the child in accordance with the prescribed requirements and transmit it to the Central Authority.
(4) If the Central Authority and the competent authority of the non-convention country concerned both agree to the adoption, the competent authority of that country will refer the application for adoption for the necessary consent in that country.
266 Recognition of inter-country adoption of child from convention country
(1) The adoption in a convention country of a child habitually resident in that convention country by a person habitually resident in the Republic shall be recognised in the Republic if an adoption compliance certificate issued in that country is in force for the adoption.
(2) The adoption in a convention country of a child habitually resident in that convention country by a person habitually resident in another convention country shall be recognised in the Republic if an adoption compliance certificate issued in the convention country where the adoption was granted is in force for the adoption.
(3) If an adoption compliance certificate was not issued in the relevant convention country, the Central Authority may issue a declaration recognising the adoption.
(4) A declaration in terms of subsection (3) is, upon production by any person in a court, admissible as evidence in any proceedings before the court.
(5) The adoption of a child referred to in subsections (1) and (2) shall not be recognised if a declaration is made in terms of section 270 that an adoption or a decision in terms of article 27 of the Hague Convention on Inter-country Adoption has no effect in the Republic.
267 Evidentiary value of adoption compliance certificate of convention country
Subject to section 270, an adoption compliance certificate is evidence, for the purposes of the laws of the Republic, that the adoption to which the certificate relates-
(a) was agreed to by the central authorities of the countries mentioned in the certificate; and
(b) was carried out in accordance with the Hague Convention on Inter-country
Adoption and the laws of the countries mentioned in the certificate.
268 Recognition of inter-country adoption of child from non-convention country
The Central Authority may issue a declaration recognising the adoption of a child
(a) the adoption is in accordance with and has not been rescinded under the law
(b) the adoption in that country has the same effect it would have had if the order had been made in the Republic.
269 Effect of recognition of inter-country adoption
If the adoption of a child is recognised in terms of section 266 or 268, the adoption has in the Republic the effects set out in section 242.
270 Refusal to recognise inter-country adoption or Article 27 decision
(1) The Central Authority may declare that an adoption to which section 266 or 268 applies or a decision made in terms of article 27 of the Hague Convention on Inter-country Adoption may not be recognised in the Republic if the adoption or decision is manifestly contrary to public policy in the Republic, taking into account the best interests of the relevant child.
(2) If the Central Authority declares that an adoption or decision referred to in subsection (1) may not be recognised, the adoption or decision has no effect in the Republic.
Application to children’s court for inter-country adoption of child 20
271. (1) In the event of a refusal to recognise an inter-country adoption as contemplated in section 270, an application for the adoption of a child from a convention country or a non-convention country may be made to the children’s court.
(2) The provisions of Chapter 15, with the necessary changes which the context may require, apply to the adoption of a child referred to in subsection (1).
272 Access to information
Subject to the provisions of section 248 with regard to access to the adoption
register, read with such changes as the context may require, the Central Authority may disclose to a person older than 18 years who, as a child, was adopted in accordance with the Hague Convention on Inter-country Adoption, any information in the records of the Central Authority concerning that person’s origin.
273 Processing or facilitating inter-country adoption
No person may process or facilitate an inter-country adoption otherwise than in terms of this Chapter.