Minister for Welfare and Population Development v Fitzpatrick and Others (CCT08/00) [2000] ZACC 6; 2000 (7) BCLR 713 ; 2000 (3) SA 422 (CC) (31 May 2000)

Minister for Welfare and Population Development v Fitzpatrick and Others (CCT08/00) [2000] ZACC 6; 2000 (7) BCLR 713 ; 2000 (3) SA 422 (CC) (31 May 2000)

Section 18(4)(f) of the Child Care Act, to the extent that it absolutely prohibits adoption of a South African born child by non-citizens or persons who qualify for naturalisation but have not applied, is inconsistent with section 28(2) of the Constitution, which requires that a child's best interests be of paramount importance in every matter concerning the child. The absolute proscription is too blunt and fails to account for individual circumstances where adoption by non-citizens may be in the child's best interests. Existing legislative safeguards in the Child Care Act, including the role of children's courts and social workers, are sufficient to address concerns about child...

Citation
[2000] ZACC 6
Parties
Applicant: Minister for Welfare and Population Development; Respondent: Sara Jane Fitzpatrick; Respondent: Benedict Paul Fitzpatrick; Respondent: Dirk Abraham John Uijs
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
31 May 2000
Case Number
CCT08/00
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity
Outcome
Order of constitutional invalidity confirmed; suspension of invalidity set aside; no order as to costs.
Judges
Goldstone, Chaskalson, Langa, Madala, Mokgoro, Ngcobo, O'Regan, Sachs, Yacoob, Cameron
Legal Topics
Best Interests of Child, Adoption by Non Citizens, Absolute Proscription, Constitutional Invalidity, Child Care Act, Suspension of Invalidity
Constitutional Law Family and Children Best Interests of Child Adoption by Non Citizens Absolute Proscription Constitutional Invalidity Child Care Act Suspension of Invalidity

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Parties

Minister for Welfare and Population Development

Applicant

Sara Jane Fitzpatrick

Respondent

Benedict Paul Fitzpatrick

Respondent

Dirk Abraham John Uijs

Respondent

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Whether section 18(4)(f) of the Child Care Act is inconsistent with the Constitution.
  2. 2 Whether an order of invalidity should be suspended to allow Parliament to correct the defect.

Ratio Decidendi

Section 18(4)(f) of the Child Care Act, to the extent that it absolutely prohibits adoption of a South African born child by non-citizens or persons who qualify for naturalisation but have not applied, is inconsistent with section 28(2) of the Constitution, which requires that a child's best interests be of paramount importance in every matter concerning the child. The absolute proscription is too blunt and fails to account for individual circumstances where adoption by non-citizens may be in the child's best interests. Existing legislative safeguards in the Child Care Act, including the role of children's courts and social workers, are sufficient to address concerns about child...

Court Disposition

Order of constitutional invalidity confirmed; suspension of invalidity set aside; no order as to costs.

Orders

  • Section 18(4)(f) of the Child Care Act is declared inconsistent with the Constitution and invalid to the extent that it absolutely prohibits adoption of a child born of a South African citizen by non-citizens or persons who qualify for naturalisation but have not applied.
  • The suspension of the order of invalidity for two years is set aside.