Consent/withdrawal of consent by a parent or guardian of a child for adoption
‘Consent’ is written permission by the biological parents or where there are no biological parents, by a guardian, that is given to prospective adoptive parents to adopt a child. Consent can be given by the parents, the guardian of the child or the child. A child can consent to adoption if he or she is 10 years or older.
Notwithstanding the provisions of any other law, the parent of a child who has given consent to the adoption of his or her child has the right to withdraw such consent for up to 60 days after the consent has been given. A children's court shall not make any order of adoption final before the period of 60 days has expired.
Circumstances in which consent to adoption is not required:
The consent of a parent or guardian of the child to the adoption of the child, is not necessary if that parent or guardian-
the child is an orphan and has no guardian or caregiver who is willing and able to adopt the child and the court is provided with certified copies of the child's parent's or guardian's death certificate or such other documentation as may be required by the court;
is incompetent to give consent due to mental illness;
has abandoned the child, or if the whereabouts of that parent or guardian cannot be established, or if the identity of that parent or guardian is unknown;
has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected;
has consistently failed to fulfill his or her parental responsibilities towards the child during the last 12 months;
has been divested by an order of court of the right to consent to the adoption of the child; or
has failed to respond to a notice of the proposed adoption referred to in section 238 within 30 days of service of the notice.
If the parent referred to above is the biological father of the child, the consent of that parent to the adoption is not necessary if-
that biological father is not married to the child's mother or was not married to her at the time of conception or at any time thereafter, and has not acknowledged that he is the biological father of the child;
the biological father can acknowledge that he is the biological father of a child-
by giving a written acknowledgment that he is the biological father of the child either to the mother or the clerk of the children's court before the child reaches the age of six months;
by voluntarily paying maintenance in respect of the child;
by paying damages in terms of customary law; or
by causing particulars of himself to be entered in the registration of birth of the child.
the child was conceived from an incestuous relationship between that biological father and the mother; or
the court, following an allegation by the mother of the child, finds on a balance of probabilities that the child was conceived as a result of the rape of the mother: Provided that such a finding shall not constitute a conviction for the crime of rape.
Notice of consent to adoption
When a child becomes available for adoption, the presiding officer must without delay cause the sheriff to serve a notice on each person whose consent to the adoption is required. The notice must-
inform the person whose consent is sought of the proposed adoption of the child; and
request that person either to consent to or to withhold consent for the adoption, or, if that person is the biological father of the child to whom the mother is not married, request him to consent to or withhold consent for the adoption, or to apply for the adoption of the child.
If a person on whom a notice has been served fails to comply with a request contained in the notice within 30 days, that person must be regarded as having consented to the adoption.
Recording an adoption
In terms of section 25 of the Child Care Act, 1983 (Act No. 74 of 1983) the Department of Home Affairs must record the adoption of a child in the child’s birth register if so requested by the adoptive parents. To record the adoption, the adoptive parents must then:
submit a written request to record the adoption to any domestic office of Home Affairs
submit a certified copy of the adoption order
pay the fee required to record an adoption
It is important to note that the Department of Home Affairs is responsible only for the recording of the adoption of a child in the child’s birth register if so requested by the adoptive parents. Any other matters relating to adoption fall within the duties of the Department of Social Development (previously Welfare & Population Development).
Steps to follow
If you are a parent or guardian of the child, complete Form 61, Consent by parent or guardian to the adoption of a child;
If you are the child and 10 years of age or older, complete Form 62, Consent by child to adoption.
Consent must be given in writing. If it is given in South Africa, the person or persons giving the consent must sign it in the presence of a presiding officer of the children's court, who shall then attest to the consent.
Consent granted outside South Africa must be signed in the presence of and attested to by an officer in the service of a South African diplomatic or consular mission, or by a judge, magistrate, justice of the peace or public officer of the country concerned.
Although the consent should contain the names of the proposed adoptive parents, the children's court may admit consent by the child's parents or guardian which does not contain the names or any other particulars of the proposed adoptive parents if it is satisfied that the best interests of the child will be served thereby.
Consent must be withdrawn in writing. If you are the parent or guardian of the child, complete Form 64, Withdrawal of consent to adoption by parent or guardian of child, before any presiding officer within 60 days after having given such consent.
Should consent be withdrawn in a district other than the district in which consent was given or in which the application for adoption is to be heard, the presiding officer shall immediately -
notify the relevant court and social worker (if it is known) in which court the application for adoption will be heard; or
notify the presiding officer who attested to the consent (if it is not known) in which court the application for adoption will be heard.
The presiding officer shall immediately identify the court in which the application for adoption will be heard and notify both the court and the social worker about the withdrawal.
Children’s Act, 2005 (Act 38 of 2005)
The time frame for processing the application for adoption depends on the complexity of the case.
Before the presiding officer attests the consent, he must inform the person who is granting consent of the legal consequences of an adoption;
that, in the case of consent by a parent, the parent concerned may withdraw the consent in writing on Form 64 before any presiding officer at any time within 60 days after having given such consent;
that the person concerned (the person who wishes to adopt a child) may be present when the application for adoption is considered unless the court, at its discretion, grants him or her permission to be present, because it is of the opinion that his or her presence will serve the best interests of the child.
Department of Justice and Constitutional Development
Chief Directorate: Promotion of the Rights of Vulnerable Groups (Child Justice and Family Law)
Tel: 012 357 8205
Department of Justice, Court Services Branch, Momentum Centre, 329 Pretorius Street, Pretoria, 0001
Postal address: Private Bag X81, Pretoria, 0001
Web address: www.justice.gov.za