Centre for Child Law v Minister of Social Development (21122/13) [2013] ZAGPPHC 305; 2014 (1) SA 468 (GNP) (30 October 2013)

Centre for Child Law v Minister of Social Development (21122/13) [2013] ZAGPPHC 305; 2014 (1) SA 468 (GNP) (30 October 2013)

Section 230(3) of the Children's Act does not preclude a child from being adoptable merely because the child has a parent or guardian and the person seeking to adopt is the spouse or permanent domestic life-partner of the child's parent or guardian. The court found that abandonment or lack of contact by the...

Source-derived case information.

Citation
[2013] ZAGPPHC 305
Parties
Applicant: Centre for Child Law; Respondent: Minister of Social Development
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 October 2013
Case Number
21122/13
Procedural Posture
Declaratory Application / Judgment
Outcome
Application granted. Declaratory orders made in favour of the applicant.
Judges
J W Louw
Legal Topics
Adoption, Parental Responsibilities and Rights, Step Parent Adoption, Children S Act Interpretation
Family and Children Adoption Parental Responsibilities and Rights Step Parent Adoption Children S Act Interpretation

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Parties

Centre for Child Law

Applicant

Minister of Social Development

Respondent

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 Does section 230(3) of the Children's Act preclude a child from being adoptable where the child has a guardian and the person seeking to adopt is the spouse or life-partner of the guardian?
  2. 2 Does section 242 of the Children's Act automatically terminate all parental responsibilities and rights of the guardian where such adoption order is granted?
  3. 3 Is the interpretation of sections 230(3) and 242(1) consistent with the Constitution?

Ratio Decidendi

Section 230(3) of the Children's Act does not preclude a child from being adoptable merely because the child has a parent or guardian and the person seeking to adopt is the spouse or permanent domestic life-partner of the child's parent or guardian. The court found that abandonment or lack of contact by the non-custodian parent suffices for adoptability, and that the Act expressly permits step-parent adoption. Section 242 does not automatically terminate all parental responsibilities and rights of the guardian upon such adoption, as the court has discretion to order otherwise. This interpretation is consistent with the constitutional imperative to promote the best interests of the child...

Court Disposition

Application granted. Declaratory orders made in favour of the applicant.

Orders

  • It is declared that section 230(3) of the Children's Act, 38 of 2005, does not preclude a child from being adoptable in instances where the child has a guardian and the person seeking to adopt the child is the spouse or permanent domestic life-partner of that guardian.
  • It is declared that section 242 of the Children's Act, 38 of 2005, does not automatically terminate all the parental responsibilities and rights of the guardian of a child when an adoption order is granted in favour of the spouse or permanent domestic life-partner of that guardian, having regard to the discretion...