Children’s care thwarted by birth certificate blocks

Government departments fail to implement legislation on child rights

CHILDREN are the most vulnerable people in society. While we celebrate our freedom and rights this Human Rights month, our children’s rights are not enforced by certain government departments responsible for upholding the tenets of the constitution.

Section 28 of the constitution states: “Every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment”. The Children’s Act (No 38 of 2005) endorses this right.

There are children who cannot be adopted, as their births are not registered. In other instances, one or both adoptive parents are not reflected on the unabridged birth certificate or in the birth register, despite the adoption having been finalised by the courts with both parents noted. At times unabridged birth certificates are not issued at all.

According to Unicef’s South African Child Gauge, 2016, by mid-2014 South Africa had about 18.5 million children (34% of the population).

Of these 18.5 million children, 3 million (16%) are orphans and reliant on government’s child support and foster care grants.

Last year the Department of Social Development allocated R5.8m to foster care and R43.7m to child support grants. Most of these children reside in Gauteng, KZN and the Eastern Cape. The Western Cape accounts for 10%.

A child is only placed in foster care for two years, after this the foster care order is either extended, or the child is placed with another person or youth care centre.

Foster parents have limited parental rights and responsibilities and are not legal guardians. They, for example, cannot consent to a child receiving certain medical treatments or operations.

The Children’s Act states: “In all matters concerning the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance, must be applied” and “the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from a caregiver or person, with whom the child has been living” must be taken into account. With this in mind it can be concluded that: • It is not in the child’s best interests to be relocated from one foster home to another every two years.

• The child’s best interests are served by having a stable family home with adoptive parents exercising full parental rights and responsibilities.

The Children’s Act places an obligation on government departments to “respect, protect and promote the rights of children…”

Despite this, our firm is receiving an increase in instructions to litigate against the Department of Home Affairs for non-compliance. All the cases involve either a foreign biological parent or a foreign adoptive parent married to a South African citizen. In one case it took 44 interactions with Home Affairs, using personal and telephonic contact and e-mail, requesting their names to be noted on the unabridged birth certificate.

After two years no one could advise what the delay was in issuing an unabridged birth certificate. The couple launched an application against the department in the Western Cape High Court and were granted a court order, with costs in their favour, compelling the department to provide an unabridged birth certificate reflecting their names, which was done within 14 days.

In another incident, S (3 years old), was up for adoption with three sets of parents showing interest over a two-year period.

S could not be adopted because the department had not registered her birth as her biological mother is a foreigner. Most parents adopt children under the age of 4 and as S is almost this age, she is likely to remain in the children’s home becoming a ward of the state dependent on child support grants and/or foster care grants. S is therefore denied her constitutional rights to a name and nationality and a family.

It is estimated that cost orders against the department were in excess of R11m in 2016 in the Western Cape alone.

The Pretoria High Court ruled in 2015 that: “The conduct of (Home Affairs) in refusing, alternatively failing to record the adoption of *R in the birth register and their conduct in refusing, alternatively failing to issue a new unabridged birth certificate on the basis that his biological mother is not a South African citizen, is unlawful and unconstitutional” yet they proceed with their conduct.

The sad reality in SA is that there are 3 million adoptable children (of which 653 000 have lost both parents) and there are prospective parents for many of these children, but the adoptions are thwarted by Home Affairs’ internal departmental policy as “the only applications (of unabridged birth certificates they do not) approved is of a foreign child being adopted by foreign nationals”.

The Department of Social Development reported that only 1 651 adoptions were registered last year. This means that only 0.05% of these children were adopted, as older children are not regarded as “adoptable” by prospective parents.

Having a world-class constitution and legislation protecting children’s rights is of no importance when government departments fail to implement it correctly, fairly and objectively without concern for the implications of their actions and ramifications on the child’s life.

The department needs to revisit its internal policy and truly realise children’s rights.