DG and Another v W and Others (379/06) [2007] ZASCA 87; 2007 (5) SA 184 (SCA) (1 June 2007)

DG and Another v W and Others (379/06) [2007] ZASCA 87; 2007 (5) SA 184 (SCA) (1 June 2007)

The majority of the Supreme Court of Appeal held that the High Court should not sanction the removal of a child from South Africa under a custody and guardianship order for the purpose of inter-country adoption, as this circumvents the statutory safeguards and procedures established for adoption in the children’s court. The principle of subsidiarity, which requires that inter-country adoption be considered only when no suitable local care is available, was not satisfied on the evidence. The procedural route chosen by the appellants denied the child the protections afforded by domestic and international law, including independent investigation and representation. The court emphasized that...

Citation
[2007] ZASCA 87
Parties
Appellant: DG; Appellant: DD; Respondent: DW; Respondent: CW; Respondent: Roodepoort Child and Family Welfare Society
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2007
Case Number
379/06
Procedural Posture
Civil Appeal / Appeal From High Court Dismissal of Application for Sole Custody and Guardianship; Supreme Court of Appeal Judgment
Outcome
Appeal dismissed.
Judges
Heher, Ponnan, Theron, Hancke, Snyders
Legal Topics
Inter Country Adoption, Best Interests of Child, Subsidiarity Principle, Child Care Act, Hague Convention, Guardianship Vs Adoption
Family and Children Civil Procedure Inter Country Adoption Best Interests of Child Subsidiarity Principle Child Care Act Hague Convention Guardianship Vs Adoption

Case Brief

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Parties

DG

Appellant

DD

Appellant

DW

Respondent

CW

Respondent

Roodepoort Child and Family Welfare Society

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Dismissal of Application for Sole Custody and Guardianship; Supreme Court of Appeal Judgment

Legal Issues

  1. 1 Whether the High Court, as upper guardian, may grant sole custody and guardianship to foreign applicants with a view to inter-country adoption.
  2. 2 Whether it is in the best interests of the minor child to be removed from South Africa under a custody and guardianship order rather than through adoption in the children’s court.
  3. 3 Whether the principle of subsidiarity and international safeguards for inter-country adoption have been satisfied.

Ratio Decidendi

The majority of the Supreme Court of Appeal held that the High Court should not sanction the removal of a child from South Africa under a custody and guardianship order for the purpose of inter-country adoption, as this circumvents the statutory safeguards and procedures established for adoption in the children’s court. The principle of subsidiarity, which requires that inter-country adoption be considered only when no suitable local care is available, was not satisfied on the evidence. The procedural route chosen by the appellants denied the child the protections afforded by domestic and international law, including independent investigation and representation. The court emphasized that...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • The appellants are directed to approach the children’s court for relief if they wish to pursue adoption.