AD and Another v DW and Others (CCT48/07) [2007] ZACC 27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC) (7 December 2007)

AD and Another v DW and Others (CCT48/07) [2007] ZACC 27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC) (7 December 2007)

The Constitutional Court held that while the High Court’s jurisdiction to grant sole custody and sole guardianship orders to foreigners is not ousted by law, such orders should not be used to bypass the Children’s Court adoption process except in truly exceptional cases. The Children’s Court is the appropriate forum to determine the best interests of the child in adoption matters, as it provides necessary safeguards and procedures. The principle of subsidiarity, which prioritises placement within the child’s country of origin, must be applied flexibly and subordinated to the paramountcy of the child’s best interests. The Court found that the Supreme Court of Appeal was correct to require...

Citation
[2007] ZACC 27
Parties
Applicant: AD; Applicant: DD; Respondent: DW; Respondent: CW; Respondent: Roodepoort Child and Family Welfare Society; Amicus Curiae: The Centre for Child Law; Respondent: The Department of Social Development; Curatrix Ad Litem: Advocate M Feinstein
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
7 December 2007
Case Number
CCT48/07
Procedural Posture
Constitutional Appeal / Appeal From Supreme Court of Appeal; Judgment of Constitutional Court
Outcome
Leave to appeal is granted; the appeal is upheld; the order of the Supreme Court of Appeal is set aside and replaced by the consent order.
Judges
Sachs, Langa, Moseneke, Madala, Mpati, Ngcobo, Nkabinde, Skweyiya, Van der Westhuizen, Yacoob
Legal Topics
Inter Country Adoption, Subsidiarity Principle, Best Interests of Child, Sole Custody and Guardianship, Child Care Act, Children S Act
Family and Children Constitutional Law Inter Country Adoption Subsidiarity Principle Best Interests of Child Sole Custody and Guardianship Child Care Act Children S Act

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Parties

AD

Applicant

DD

Applicant

DW

Respondent

CW

Respondent

Roodepoort Child and Family Welfare Society

Respondent

The Centre for Child Law

Amicus Curiae

The Department of Social Development

Respondent

Advocate M Feinstein

Curatrix Ad Litem

Procedural Posture

Constitutional Appeal / Appeal From Supreme Court of Appeal; Judgment of Constitutional Court

Legal Issues

  1. 1 Does the High Court have jurisdiction to grant sole custody and sole guardianship orders to foreign nationals as a step towards inter-country adoption.
  2. 2 How should the principle of subsidiarity be interpreted and applied in the context of inter-country adoption under South African law.
  3. 3 What is the paramount consideration in determining the best interests of the child in inter-country adoption cases.

Ratio Decidendi

The Constitutional Court held that while the High Court’s jurisdiction to grant sole custody and sole guardianship orders to foreigners is not ousted by law, such orders should not be used to bypass the Children’s Court adoption process except in truly exceptional cases. The Children’s Court is the appropriate forum to determine the best interests of the child in adoption matters, as it provides necessary safeguards and procedures. The principle of subsidiarity, which prioritises placement within the child’s country of origin, must be applied flexibly and subordinated to the paramountcy of the child’s best interests. The Court found that the Supreme Court of Appeal was correct to require...

Court Disposition

Leave to appeal is granted; the appeal is upheld; the order of the Supreme Court of Appeal is set aside and replaced by the consent order.

Orders

  • RW is declared to have been abandoned.
  • The Children’s Court for the district of Johannesburg is directed to hear on an expedited basis the application for adoption of RW by the applicants, within 30 days of the judgment date.