Giving a child up for adoption

Giving a child up for adoption isn’t always easy, the decision requires a lot of thought to ensure that it will be in the best interest of the child. Child protection organisations and the Department of Social Development will provide guidance and support services to assist you throughout the process.

How the process works

In terms of section 233(4) of the Children’s Act 38 of 2005, a person must prove that he or she was counselled by an adoption social worker before signing permission for the adoption.

The presiding officer must explain in private to the parent exactly how and when all parental rights will be transferred to the adoptive parents. Legal guardians must go through this same procedure, this includes the maternal grandparents in the case of a minor birth mother, as well as the child if the child is over the age of 10.

Two different, but equally legal, ways of adoption are possible in terms of the Children’s Act:

• disclosed adoption: where the parties know each other’s identity, for instance, stepfamily or foster parents, or
• non-disclosed adoption: when a child is matched with non-relatives unknown to the parents. 

Giving consent

Both the mother and the father must consent to the adoption by a specific person or persons. If the child is 10 years and older, the child must also consent to the adoption. If the child is in foster care, the foster parents must also certify that they don't wish to adopt the child.

One can give consent in the following way:

• If you're a parent or guardian of the child, complete Form 61, the parent or guardian must give consent for a child to be adopted.

• If you're a child that's 10 years of age or older, complete Form 62, the child must give consent to their adoption.

• One must give consent in writing. 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.

• The consent should contain the names of the proposed adoptive parents. If it is in the child's best interest, the children's court may admit consent by the child's parents or guardian which doesn't contain the names or any other particulars of the proposed adoptive parents.

Consent isn't necessary (this isn't automatic, as the court needs to make a factual finding) if:

• 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 parents or guardians death certificate or such other documentation as may be required by the court;

• the parent or guardian is incompetent to give consent due to mental illness;

• the parent or guardian has abandoned the child, or if the whereabouts of that parent or guardian can't be established, or if the identity of that parent or guardian is unknown;

• the parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected;

• the parent or guardian has consistently failed to fulfil his or her parental responsibilities towards the child during the last 12 months;

• the parent or guardian has been divested by an order of a court of the right to consent to the adoption of the child; or

• the parent or guardian has failed to respond to a notice of the proposed adoption (referred to in section 238 of the Children’s Act 38 of 2005) within 30 days of service of the notice.

Biological parents can withdraw their consent within 60 days of signing the consent form by signing a Form 64.