T v T and Others (13040/2013) [2015] ZAGPJHC 131; [2015] 3 All SA 631 (GJ) (19 June 2015)

T v T and Others (13040/2013) [2015] ZAGPJHC 131; [2015] 3 All SA 631 (GJ) (19 June 2015)

The court held that although section 243(2) of the Children’s Act prescribes a two-year period for rescission of adoption orders, this statutory limitation cannot override the constitutional imperative that the best interests of the child are paramount. The factual circumstances revealed that the adoption was a legal fiction, as the biological parents never relinquished their parental rights and the applicant’s relationship with the children had irretrievably broken down. The applicant no longer exercised parental responsibilities, and the children’s emotional and psychological bonds were with their biological parents. The Family Advocate and Social Worker confirmed that rescission would...

Citation
[2015] ZAGPJHC 131
Parties
Applicant: [T……..] [I…….][G………]; Respondent: [T………..] [J…….][C……..]; Respondent: [L…….][J……..]; Respondent: Registrar of Adoptions
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 June 2015
Case Number
13040/2013
Procedural Posture
Review Application / Application for Rescission of Adoption Orders
Outcome
Application for rescission of adoption orders granted.
Judges
Mokgoatlheng
Legal Topics
Rescission of Adoption Order, Best Interests of Child, Prescription Period, Parental Rights and Responsibilities, Constitutional Supremacy
Family and Children Civil Procedure Rescission of Adoption Order Best Interests of Child Prescription Period Parental Rights and Responsibilities Constitutional Supremacy

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Parties

[T……..] [I…….][G………]

Applicant

[T………..] [J…….][C……..]

Respondent

[L…….][J……..]

Respondent

Registrar of Adoptions

Respondent

Procedural Posture

Review Application / Application for Rescission of Adoption Orders

Legal Issues

  1. 1 Whether the application for rescission of adoption orders is barred by the two-year prescription period under section 243(2) of the Children’s Act.
  2. 2 Whether the High Court has jurisdiction to rescind adoption orders after the statutory period has expired.
  3. 3 Whether the rescission of the adoption orders is in the best interests of the children.

Ratio Decidendi

The court held that although section 243(2) of the Children’s Act prescribes a two-year period for rescission of adoption orders, this statutory limitation cannot override the constitutional imperative that the best interests of the child are paramount. The factual circumstances revealed that the adoption was a legal fiction, as the biological parents never relinquished their parental rights and the applicant’s relationship with the children had irretrievably broken down. The applicant no longer exercised parental responsibilities, and the children’s emotional and psychological bonds were with their biological parents. The Family Advocate and Social Worker confirmed that rescission would...

Court Disposition

Application for rescission of adoption orders granted.

Orders

  • The adoption orders of the minor children [E……] and [I…….] [T…….] made on 26 June 2007 in favour of the applicant are rescinded and set aside with effect from 23 April 2015.
  • Specified paragraphs of the Memorandum Agreement made an order of the Central Divorce Court under Case Number 10199/08 are rescinded and set aside.