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TT v Minister of Social Development [2022] ZAGPJHC 931

DIPPENAAR J

7 November 2022

FAMILY – Children – Adoption – National Department of Social Development’s Practice Guidelines – Department’s narrow interpretation of family limited to genetic connection – Violating child’s right to family life – Guidelines inconsistent with Constitution.

Facts: Two children (B and L) were born in 2018 and 2019 to the applicants, unmarried students who had have been abandoned by their partners when they became pregnant. The applicants made the difficult choice to consent to adoption in the children's best interests. Despite the passage of extensive time, their adoptions remain in limbo and have not been finalised due to bureaucratic delays and the actions of the very institutions and social workers tasked to ensure the children’s welfare.

Application: The relief sought includes various declaratory orders and the review and setting aside of a letter of non-recommendation for B, as well as the setting aside of the National Department of Social Development's Practice Guidelines on National Adoption.

Discussion: The privacy and confidentiality relief sought; the legislative framework and the Department’s interpretation thereof; that the Guidelines are intended to promote adoption; that the available statistics on adoption are scant and paint a disturbing picture; there is currently a crisis in South Africa which has seen adoption figures plummet and a concerning increase in the number of children being cared for in alternative care; that a fundamental premise to the Guidelines is that it is paramount to maintain a connection between an adoptable child and his or her extended biological family, culture and community, despite the Act not giving priority of these factors; the delays in the finalisation of adoption processes; and the Department’s challenge to the adoption proceedings of B and L by contending that the magistrates in the Children’s Court had acted unlawfully.

Findings: Both B and L remain vulnerable whilst their adoptions are not finalised and there is a threat of their removal from their prospective adoptive parents. A substantial flaw in the Department’s approach is their narrow interpretation of the concept of family, being limited to a genetic connection. There is no basis to draw a distinction between a child’s biological family and a child’s adoptive family. Such a distinction would violate a child’s right to family life, a component of the right to dignity. Once it has been established that a child’s best interests favour adoption, and once a child is placed with an adoptive family, any distinction in value between the biological family and the adoptive family would amount to discrimination, striking at the right to dignity and would be unlawful.

Order: The court file is declared to be confidential and the anonymity of the parties is to be maintained. The pending review proceedings launched by the department are permanently stayed. The Guidelines are declared to be inconsistent with the Constitution and are reviewed and set aside. The conduct of the department and the social workers is declared to be in breach of the applicants’ rights in terms of the Constitution.

DIPPENAAR J

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