The Supreme Court of Appeal has condemned social workers for unlawfully interfering in the adoptions of two children, disclosing confidential information about their mothers’ pregnancies and undermining the women’s constitutional rights to dignity and privacy.
In a damning judgment, the court scrutinised the conduct of government social workers involved in the adoption processes and the Department of Social Development’s interpretation of the law governing adoptions.
The dispute concerned two young, unmarried women who independently decided to place their children for adoption.
Both wanted to keep their pregnancies, the births and the proposed adoptions private from their families.
Instead of respecting their decisions and following the statutory adoption process, social workers interfered with the arrangements and sought to involve the women’s parents, despite their express wishes to maintain confidentiality.
The court described the conduct as a serious affront to the women’s rights.
“The brazen, unauthorised conduct of the government social workers…” the Court held.
It further stated that : “The affront to the independence and the rights to dignity and privacy of the children’s mothers finds no support in the Act.”
The ruling raises serious questions about how officials entrusted with protecting children can themselves become obstacles to lawful adoption processes and inflict further harm on vulnerable mothers.
At the centre of the dispute were the Department of Social Development’s Practice Guidelines on National Adoption, which were challenged on the basis that they imposed requirements not contained in the Children’s Act and were being used to obstruct adoptions.
The department’s position included that a designated statutory social worker first had to determine whether a child was in need of care and protection before the adoption process could proceed.
The court rejected that interpretation in circumstances where a parent had voluntarily consented to adoption.
It found that the department had misconstrued the applicable provisions of the Children’s Act and that there was no lawful basis for the interference with the adoptions.
The judgment makes clear that the adoption process must be guided by the legislation and the best interests of the children, rather than additional requirements imposed through departmental guidelines.
The guidelines were declared inconsistent with the Constitution and the Children’s Act and were set aside.
The dispute involved two children, identified in the proceedings by their initials to protect their identities.
One mother had consented to her child’s adoption, but the department refused to recommend the adoption. The dispute also involved attempts by social workers to notify the mothers’ parents about their pregnancies and intended adoptions.
In one instance, a mother obtained an urgent court order preventing officials from informing her family about her pregnancy, the birth of her child and the proposed adoption.
The case exposed the consequences of officials disregarding the mothers’ expressed wishes while attempting to apply their own interpretation of the adoption process.
The court found that the conduct of the relevant officials breached the mothers’ constitutional rights to dignity, freedom and security of the person, and privacy.
It also found that the children’s constitutional right to have their best interests treated as paramount had been violated.
The judgment underscores that a mother’s decision to consent to adoption cannot be disregarded simply because officials disagree with her choice or seek to impose requirements that are not supported by the law.
The litigation also raised concerns about the effect of bureaucratic and legal disputes on the children.
The department’s actions had delayed the finalisation of the adoptions, leaving the children’s futures entangled in prolonged proceedings despite the prospective adoptive parents’ willingness to care for them.
The case illustrates the potential harm caused when disputes between government officials and adoption practitioners take precedence over the circumstances and interests of the children concerned.
The court’s findings challenge the department’s approach to the statutory process and the use of its guidelines to obstruct adoption applications.
The dispute originated in the Gauteng Division of the High Court in Johannesburg, where the two mothers challenged the department’s handling of their children’s adoptions.
In November 2022, the High Court found serious problems with the department’s interpretation of the Children’s Act and its treatment of the mothers and children. It subsequently granted leave to appeal in January 2023, allowing the constitutional and legal questions surrounding the adoption guidelines to be considered by the Supreme Court of Appeal.
The Centre for Child Law participated in the High Court proceedings as amicus curiae, or friend of the court.
The case has wider implications for adoption practice in South Africa, particularly the relationship between the statutory safeguards intended to protect children and the rights of parents who voluntarily consent to adoption.
The central question is whether officials can use administrative guidelines to impose requirements beyond those prescribed by legislation.
The ruling reinforces the principle that public officials must exercise their powers within the limits of the law.
