Court/Judicial body: Constitutional Court of South Africa
Date: December 7, 2007 CRC
Provisions: Article 3: Best interests of the child Article 21: Adoption
Other international provisions:Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-country Adoption Preamble: Adoption must be in the best interests of the child Article 4b: State of origin of the child have to determine if an inter-country adoption is in the child’s best interest. African Charter on the Rights and Welfare of the Child, Article 24(b): Inter-country adoption may as a last resort be considered as an alternative means of a child’s care
Domestic provisions:South African Constitution, Section 28: “A child’s best interests are of paramount importance in every matter concerning the child.” Section 18(4)(f) of the Child Care Act: only South African citizens resident in the country can adopt South African child citizens.
Background: The matter concerns an application for sole custody and sole guardianship by citizens of the United States of America, who wanted to adopt a South African child, Baby R. They were advised that a policy by the Department of Social Development barred citizens of the United States from adopting children in South Africa, and were encouraged to apply to the High Court for an order granting them sole custody and sole guardianship. This order would enable them to take Baby R to Virginia where they could then formally adopt her.
Issue and resolution: Inter-country adoption. The court considered Article 21(b) of the CRC, which requires that inter-country adoption should be considered strictly as an alternative to the placement of a child with adoptive parents who reside in the child’s country of birth. Given the exceptional circumstances of this case, the parties agreed that it was in the best interest of Baby R to be adopted by the applicants and that Article 21(b) is not a bar to this adoption.
Court reasoning: In general, the CRC’s provision on inter-country adoption in Article 21(b) should be followed and must be a central consideration in all inter-country adoption proceedings. In these proceedings, there must be a case-by-case enquiry conducted by child protection practitioners and judicial officers versed in the principles involved to look at the full context of the proposed adoption. The focus of Article 21(b) is on ensuring that (a) a high priority is given to finding suitable local placement wherever possible; (b) where, however, it would be in the best interests of a particular child to be adopted by non-nationals, a properly-regulated inter-country adoption would be permissible; and (c) sending and receiving States must co-operate with one another to prevent abuses of the system and to ensure adequate follow-up when inter-country adoptions do take place.
Excerpt citing relevant human rights
Provisions:  The subsidiarity principle in relation to inter-country adoption was first articulated internationally in Article 17 of the United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally. It reads: “If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.”  The issue which dominated the litigation in this matter was how to interpret and apply this principle to Baby R’s situation. In Fitzpatrick Goldstone J pointed out that the principle required that inter-country adoption should be considered strictly as an alternative to the placement of a child with adoptive parents who reside in the child’s country of birth. He emphasised that regardless of the fact that it was not expressly provided for in our law, the subsidiarity principle had to be respected. It was enshrined in Article 21(b) of the United Nations Convention on the Rights of the Child (the CRC),20 which, according to section 39(1)(b) of the Constitution had to be considered when interpreting the Bill of Rights. [Footnote20] The CRC (ratified by South Africa on 16 July 1995) and the African Charter on the Rights and Welfare of the Child (acceded to by South Africa on 7 January 2000) require States parties to give effect to the principles of the best interests of the child, subsidiarity and non-discrimination, and to establish safeguards to prevent child trafficking and comity between States. They also contain provisions recognising and protecting a child’s right to a name, nationality and identity. Article 21(b) of the CRC provides: “States parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall recognise that inter- country adoption may be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin”. Article 24(b) of the African Charter states: “States Parties which recognize the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall recognize that inter-country adoption in those States who have ratified or adhered to the International Convention on the Rights of the Child or this Charter, may, as the last resort, be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin”. …  Rigorous procedural mechanisms are put in place to reduce possible abuse. In these circumstances the framers appear to have felt it would be permissible to reduce the relatively autonomous effect of the subsidiarity principle as expressed in the CRC and the African Charter on the Rights and Welfare of the Child (the African Charter), and bring it into closer alignment with the best interests of the child principle. Thus, using language notably less peremptory, Article 4(b) of the Convention provides: “An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an inter-country adoption is in the child’s best interests”.  The Convention seems to accept the notion that “[e]nsuring that a child grows up in a loving, permanent home is the ultimate form of care a country can bestow upon a child”, even if that result is achieved through an inter-country adoption. It follows that children’s need for a permanent home and family can in certain circumstances be greater than their need to remain in the country of their birth.  However, the intricacies consequent upon an inter-country adoption must serve as confirmation that the principle of subsidiarity should be adhered to as a core factor governing inter-country adoptions. This is not to say that the principle of subsidiarity is the ultimate governing factor in inter-country adoptions. As Fitzpatrick emphasised, our Constitution requires us in all cases, including inter-country adoption, to ensure that the best interests of the child will be paramount. Indeed, the preamble to the Hague Convention suggests that there will be circumstances in which an inter-country adoption will be preferable for a child over institutional care in the country of birth. [Footnote 47] Article 3 of the CRC reads “the best interests of the child shall be a primary consideration” (emphasis added) and Article 4 of the African Charter provides that “the best interests of the child shall be the primary consideration” (emphasis added). However, both these conventions (the CRC in Article 21 and the African Charter in Article 24) provide that in the case of adoption the best interests of the child shall be “the” paramount consideration. See above n 20. Clearly a higher status is attributed to the best interests principle in the sphere of adoption than in relation to other matters concerning the child. Follow Up: Inter-country adoptions in South Africa are now regulated by the Children’s Act, which incorporates the Hague Convention on Protection of Children and Co-operation in respect of inter-country adoption as a whole. The Hague Convention allows for inter-country adoption as long as it is in the best interests of the child. CRIN Comments: CRIN believes that there is no parental right to inter-country adoption, and that the best interests of the child must be paramount in any adoption proceeding. In this sense, the Court’s discussion of inter-country adoption is consistent with the CRC. Citation:  ZACC 27 Link to Full Judgment:http://www.saflii.org/za/cases/ZACC/2007/27.html This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice. Countries South Africa CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.