Father 'divorces' kids

Adoptive parents might be legally able to "return" adopted children long after the permitted two-year period to do so has passed.

The Constitutional Court has dismissed an application by the registrar of adoptions for permission to appeal a decision by the Johannesburg High Court to rescind a stepfather's adoption order, finding that the application had no prospect of success.

The High Court granted the Joburg stepfather's application for his adoption of his former wife's children to be rescinded, six years after the adoption order was granted.

The decision has raised concerns among child rights proponents and at the Department of Social Development. They contend that the ruling sets a precedent and will allow many adoptive parents to "return" unwanted children.

Ann Skelton, of the Centre for Child Law, said the Constitutional Court's decision was "a disappointment".

In an affidavit submitted to the Constitutional Court, the acting director-general of the Department of Social Development, Thokozani Magwaza, said the ruling "contravenes the principle of permanency" and made it possible for applications to rescind adoptions to be granted after the two-year expiry period.

The department says 23882 South African children have been adopted since 2003.

"What is concerning is that the precedent is set . this opens the door for [other] people who want the court to set aside [their adoptions] if they feel they can no longer take care of the children.

"It seems to us it's a serious misunderstanding . It's a dangerous precedent that parents can step out of an adoption agreement," said Skelton.

Echoing this, Katinka Pieterse, of the National Adoption Coalition, said: "One of the core principles of adoption is that it is a permanent commitment, one that needs to be made very carefully. For the court to rescind an adoption is concerning and could impact other adoptions and the permanency of adoption."

The Johannesburg stepfather approached the court in 2013, asking that the two-year period prescribed by the Children's Act be extended and the adoption nullified. This was six years after he had become the children's adoptive legal guardian.

In June 2007 the man became the legal guardian of his then wife's minor son and daughter, at whose birth he had been present. By October the next year the couple had divorced. The settlement awarded custody to the mother and granted the man rights of contact. He was ordered to pay maintenance.

In his affidavits the man states that he had not seen the children since the divorce but had been contributing financially to their upkeep.

The children, he said, had developed a relationship with their biological father.

In his 2015 judgment, Johannesburg High Court judge Ratha Mokgoatlheng found the case was "extraordinarily peculiar and exceptional" based on the mother's need for her children to have a father figure after divorcing their biological father.

In coming to its decision, the High Court relied on reports from the Family Advocate and Family Counsellor, which found that "the rescission of the adoption orders will merely give legal effect to the de facto situation" and would have no emotional or psychological effect on the children.

The registrar of adoptions then unsuccessfully petitioned the Supreme Court of Appeal.

The Department of Social Development then approached the Constitutional Court, saying that should the High Court's order stand, it would be an "insurmountable injustice" to the two children.

In his affidavit acting director-general Magwaza said: "If the judgment and order of the [High Court] is to be followed, it would mean that step-parents are incapable to adopt, stepchildren are not adoptable and adoption terminates all responsibilities and rights of biological parents who have care of children."