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What does the Children’s Act say about adoption?

The legislation governing adoptions in South Africa is the Children’s Act (Act 38 of 2005).

The Children’s Act (Act 38 of 2005) deals with a full spectrum of protection measures pertaining to the national, provincial and, where applicable, local spheres of government.

The main objectives of the Children’s Act are:

  • To make provision for structures, services and means for promoting and monitoring the sound physical, intellectual, emotional and social development of children.
  • To strengthen and develop community structures which can assist in providing care and protection for children.
  • To protect children from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical or moral harm or hazards.
  • To provide care and protection for children who are in need thereof.
  • To give effect to the Republic’s obligations concerning the well-being of children in terms of the international instruments binding on the Republic.

The latest version of the Children’s Act also introduces new provisions to adoption practices. Provincial Departments of Social Development now have an active role to play in facilitating adoptions and monitoring the services rendered by child protection organisations and adoption social workers in private practice.

According to Section 230, Subsection 3 of the Act, a child is adoptable if:

  • the child is an orphan and has no guardian or caregiver who is willing to adopt the child;
  • the whereabouts of the child’s parent or guardian cannot be established;
  • the child has been abandoned;
  • the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; or
  • the child is in need of a permanent alternative placement.

The Act describes persons who may adopt a child in terms of Section 231, Subsection 1 as follows:

  • jointly by
    • a husband and wife,
    • partners in a permanent domestic life-partnership, or
    • other persons sharing a common household and forming a permanent family unit;
  • by a widower, widow, divorced or unmarried person;
  • by a married person whose spouse is the parent of the child;
  • by the biological father of a child born out of wedlock; or
  • by the foster parent of the child.

The National Department regulates and monitors the implementation of adoption services by ensuring that more children are placed within the country through the implementation of the Register on Adoptable Children and Prospective Adoptive Parents (RACAP) before considering inter-country adoption. Furthermore adoption service providers are accredited to render adoption services. The Children’s Act also contains a number of features that were not part of the Child Care Act, like post-adoption agreements and freeing orders.

If you would like to learn more about the legalities surrounding adoption, please select the following links:

Children’s Act 38 of 2005
Adoption regulations