Consent to adoption of a child

Whose consent is required to adopt a child?

In terms of section 233 of the Children’s Act a child may be adopted only if consent for the adoption has been given by each parent of the child (regardless of whether the parents are married or not), or by any other person who holds guardianship in respect of the childand by the child, if the child is 10 years of age or older or under the age of 10 years, but is of an age, maturity and stage of development to understand the implications of such consent.

There are exceptions to the general rule and a child may be adopted without the consent of such parent or person, e.g. if the child is an orphan and has no guardian or caregiver who is willing and able to adopt the child or if that parent or guardian—

• 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

The consent of the biological father of a child born ‘out of wedlock’ 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. He can make such acknowledgment:

• 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 in terms of the Births and Deaths Registration Act, 1992.

If the parent of a child wishes the child to be adopted by a particular person the parent must state the name of that person in the consent.

Before consent for the adoption of the child is granted, the adoption social worker facilitating the adoption of the child must counsel the parents of the child and, where applicable, the child on the decision to make the child available for adoption.

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