The Supreme Court of Appeal (SCA) has dismissed an appeal by the Minister of Social Development and Gauteng social development authorities after social workers interfered in the adoption processes of two children whose university student mothers wanted to keep their pregnancies and adoption private.
In a judgment delivered on October 20, the SCA upheld findings that the conduct of social workers involved in the cases was unlawful and unconstitutional. It also upheld a ruling declaring the Department of Social Development’s Guidelines on National Adoptions unconstitutional.
The dispute centred on two young women who had consented to their sons being adopted but did not want their families to know about their pregnancies or adoption plans.
The government argued that the adoption processes had not complied with legal requirements and sought to have them reconsidered. However, the SCA found that officials had confused adoption procedures with child protection proceedings and had interfered with the statutory process.
Mothers wanted to keep their adoptions private
The first mother, identified in the judgment as the mother of child B, was a 23-year-old university when she fell pregnant with B.
She decided not to inform her parents and extended family about her pregnancy because they were strict and conservative, and she feared that they would disown her and cause her to stop her studies.
B’s biological father also a student, made it plain that he did not want to have anything to do with B, even suggesting that the pregnancy be terminated. When his suggestion was rejected, he terminated all contact with B’s biological mother. B’s mother decided to put him up for adoption.
She consented to the adoption of her son in July 2018.
Instead of following the adoption process prescribed by the Children’s Act, social workers insisted that the biological father should be traced and the child’s grandparents informed and considered as potential caregivers.
In August 2018, the department obtained a court order to move the baby from the hospital where he had been born to another hospital, relying on the claim that he needed care and protection. The mother was not informed of the move.
The child was subsequently kept at a temporary care facility for four months before being placed with his current adoptive parents.
The second mother, whose son was identified as child L. The mother was also a university student, and she decided to give him up for adoption. She already had another child at the time, and her parents had expelled her from their home when they learnt about the first pregnancy and only allowed her to return home after five months.
L's father abandoned her and she also opted for adoption. She consented to L’s adoption before a magistrate in the Children’s Court. L was then placed in the temporary safe care of the adoptive parents.
She also did not want her family informed.
When a social worker indicated that her parents would be told, the mother approached the High Court and obtained an order preventing the disclosure of the information.
Adoption proceedings delayed 15 times
The adoption process involving child B was repeatedly delayed as social workers attempted to persuade the Children’s Court that the child’s grandparents should care for him.
The proceedings were postponed 15 times between 2018 and 2020.
In August 2020, the Children’s Court found that adoption by the family with whom B had been placed was in his best interests. It ordered the department to issue a recommendation letter supporting the adoption.
However, the department issued a letter recommending against the adoption instead.
In child L’s case, the department issued a recommendation in October 2020, but the Minister and the head of the department subsequently launched review proceedings seeking to have that recommendation set aside.
By the time the matter reached the SCA, both adoptions had been finalised. B’s adoption was finalised on May 26, 2023, while L’s was finalised on August 8, 2023.
The government parties nevertheless sought to have the adoption processes restarted, with the children removed from their adoptive families and placed in foster care with their grandparents.
Court rejects allegations of improper influence
The government challenged the adoption processes, arguing that they had not complied with the applicable procedures. It also alleged that the private adoption social worker had improperly influenced the mothers’ decisions.
The SCA rejected the allegations of improper influence, finding that there was no cogent evidence of an organised unlawful adoption ring.
The court explained that the Children’s Act distinguishes between proceedings concerning children in need of care and protection and proceedings for adoption.
The court found that the department had improperly conflated the two processes by treating a determination that a child was in need of care and protection as a necessary preliminary step to adoption.
Care and protection proceedings are generally prompted by concerns such as abuse, neglect, exploitation or abandonment. Adoption, however, can be initiated privately and is governed by its own statutory requirements.
Once the mothers had consented to adoption and the fathers’ lack of interest was clear, the department’s role was to follow the prescribed process. This included gathering the required information, counselling the mothers, assessing the children and prospective adoptive parents, preparing a social worker’s report and obtaining the provincial head’s recommendation.
The court noted that neither mother had withdrawn her consent and that no applicable exception had been established.
Adoption guidelines found unconstitutional
The SCA also considered the department’s Guidelines on National Adoptions, which prioritised placement with biological family members and adoption within the same culture or community before cross-cultural adoption.
The court found that the guidelines introduced requirements that were not prescribed by the Children’s Act or its regulations. It also found no provision in the Act authorising the department to impose those guidelines.
The judgment recognised that a child’s cultural background and connections with their family are relevant considerations in adoption decisions. However, these factors cannot automatically take precedence over all others.
The overarching consideration must remain the best interests of the child, assessed in the circumstances of each individual case.
The court rejected a rigid hierarchy that would place biological family ties or cultural considerations above other factors relevant to a child’s welfare.
Social workers’ conduct infringed mothers’ rights
The SCA expressed concern about the conduct of the social workers, including the disclosure of the mothers’ pregnancies and adoption plans to their parents, the initiation of investigations that were not adequately justified, and the removal of child B into temporary care arrangements.
The judgment found that the officials had disregarded the statutory adoption process and failed to give proper effect to the court orders in the matter.
Their actions interfered with the mothers’ rights to dignity, privacy and independence, while also undermining the rights and interests of the children.
The court considered the referral of the social workers’ conduct to the South African Council for Social Service Professions appropriate.
The SCA found no evidence that the adoptive parents were unsuitable to care for either child.
Both children had spent their lives with their current adoptive families, who were the only families they had known.
The court found no basis for removing them from those homes and concluded that their best interests lay in remaining with their adoptive parents.
The appeal by the Minister of Social Development, the Gauteng MEC for Social Development and the head of the Gauteng Department of Social Development was dismissed with costs.
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