INTERNATIONAL ADOPTIONS IN LEGAL LIMBO: LAW SOCIETY

@ ADOPTIONS

CAPE TOWN 14 April 2005 Sapa

INTERNATIONAL ADOPTIONS IN LEGAL LIMBO: LAW SOCIETY

International adoptions of South African children are in a state

of legal limbo, with legislation to give effect to an international

convention signed in 2003 not yet enacted.

"In effect we have a legal anomaly. We have acceded to a legal

convention, but everything that we are doing is ultra vires because

it's not part of our law... We are operating extra-judicially, can

you imagine the implications?" asked Susan Abro, chairwoman of the

family law committee of the Law Society of South Africa.

She was talking about the country establishing a central

adoption authority under the Hague Convention. The convention

regulates inter-country adoptions to prevent child trafficking and

illegal adoptions.

However, the Children's Bill which will set up the authority has

not yet been enacted.

Abro said the Law Society wanted lawyers to be part of the

process of adopting children - now almost exclusively the domain

of social workers - because it was a legal process involving a

change in status for the child and the adoptive parents.

"It is absolutely fundamental for lawyers to be part of the

process to best ensure the interests of the child," she said.

Debbie Wybrow, an attorney involved in inter-country placements,

said the issue of adoptions was a "huge political hot potato".

Some in government though that considering international

adoptions was an admission that South Africa could not take care of

its own children.

"(But) there are too many children (to adopt)... it shouldn't be

seen as a failure," she said.

The Department of Social Development began an audit in March to

determine the need for inter-country adoptions.

The number of local, mostly black orphans, estimated in the

hundreds of thousands, increases yearly as Aids takes its toll on

the adult population.

"We would like to assess if enough efforts are being made by the

adoption organisations to recruit adoptive parents within the

country... before considering inter-country adoptions," said Dr

Maria Mabetoa, chief director of the children, youth and family

directorate at the department.

She said international adoption should be a last resort.

Mabetoa said South Africa now worked with 11 foreign countries.

None of these are in Africa, because most of them have not signed

the Hague Convention.

Mabetoa said because HIV/Aids orphaned many children, the

central authority was preparing guidelines so that HIV-positive

babies were not discriminated against.

Lynette Schreuder, a director at Child Welfare SA, said the

Department of Social Development would be the central authority

facilitating inter-country adoptions.

The central authority would accredit organisations to conduct

the actual adoptions with countries that have agreements with South

Africa, such as Sweden, Finland, Norway, Belgium and Germany.

Schreuder said while there was no moratorium on international

adoptions, government was reluctant to enter into new arrangements

with other countries.

"If we have exhausted all other avenues for trying to place

children in this country, then children should be adopted by

overseas parents. We believe this is a viable option so that

children have a family."

Schreuder said there were opposing views on "transracial" or

"transcultural" adoptions.

Child Welfare's position was that one should not consider race,

colour or creed, but rather the child's right to a family.

The placement of the child should also follow correct

procedures.

Schreuder said the organisation had some concerns about the

central authority, which might lack resources from government

perform its task effectively.

"Many organisations had to disband their adoption units or scale

down because of a lack of resources. If the central authority

refers cases to accredited NGOs they have to finance them to do the

work."

Schreuder said by accrediting organisations, the authority would

also be able to monitor unscrupulous agents.

She said Child Welfare SA was against lawyers becoming involved

in adoptions. Schreuder said social workers were experts in

adoption work and could effectively protect children's rights.

There was "no role" for attorneys.

Mabetoa, however, said the department supported limited

involvement of lawyers.

"The department does not agree with full control of an adoption

placement by a legal practitioner outside an accredited or

designated NGO delivering child protection services."

Mabetoa said lawyers' clients were usually the adoptive parents

who paid huge fees, and sometimes the lawyers did not act in the

child's best interests.

She said the central authority would only accredit child

protection organisations to perform local and international

adoptions. Lawyers should belong to such organisations if they

wanted to be involved in the adoption process.