AD and Another v DW and Others (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party)

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Mpati AJ
• Court: Constitutional Court
• Docket Number: CCT48/07
• Counsel: JJ Gauntlett SC (with AM Annandale) for the applicants. No appearances for the respondents. AM Skelton for the amicus curiae. S Budlender and M du Plessis for the intervening party. M Feinstein as curatrix ad litem.
• Hearing Date: 18 September 2007

Sachs J:

Introduction I

[1] On 14 November 2004 newly born Baby R was found abandoned in a veld in Roodepoort. She was placed in the foster care of the first and second respondents, nationals of the United States of America resident in South Africa, who were the founders and managers of a sanctuary for children in need of care. The applicants, friends and former fellow J congregants of the first and second respondents, are also citizens of the

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United States. On visiting the first and second respondents in South A Africa, they met Baby R, established a relationship with her, and resolved to adopt her, if possible. This case stems from the legal difficulties they encountered in trying to effect an inter-country adoption.

[2] On seeking legal advice on what route to follow, they were informed B that current policy of those responsible for administering adoptions in South Africa would effectively bar their adopting Baby R in the country. They were accordingly encouraged to apply to the Johannesburg High Court for an order granting them sole custody and sole guardianship. This order would enable them to take Baby R to the United States of America where they could then formally adopt her. C

[3] When they applied to the High Court for an order of sole custody and sole guardianship, the High Court expressed concern about the need to ensure that the best interests of the child would be protected in the absence of any opposition to the application. [1] The High Court accordingly requested the Centre for Child Law at the University of Pretoria to D assist it as amicus curiae. The centre accepted this role and filed extens- ive papers which advised against granting the application. Its principal contention was that it would not be in the best interests of Baby R in particular, and of children available for adoption in general, for sole custody and sole guardianship proceedings in the High Court to be used E as a mechanism for bypassing proper adoption proceedings in the Children's Court.

[4] Basing its decision largely on the submissions made by the amicus, the High Court held that it was not for it to decide what was in the best interests of the child; this was something to be done by the Children's F Court in accordance with the adoption procedures of the Child Care Act. [2] It therefore dismissed the application.

[5] The applicants were granted leave to appeal to the Supreme Court of Appeal. [3] The Centre for Child Law applied for and was granted leave to be admitted as amicus curiae, and again provided extensive information G and argument in support of its opposition to the granting of the appeal.

[6] The Supreme Court of Appeal divided sharply and, by a majority of three to two, dismissed the appeal. Four judgments were written.

[7] Theron AJA, with whom Ponnan JA and Snyders AJA concurred, H held that to grant the order sought by the applicants would result in sanctioning an alternative route to inter-country adoption under the guise of a sole custody and sole guardianship application. This, she stated, was an unsavoury form of bypassing the Children's Court adoption system and jumping the queue. She held further that the appeal should in any event fail because of the principle of subsidiarity. In her I view, unless it was established that suitable care could not be found in a

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child's A country of origin, an inter-country adoption application would not lie, whatever other considerations there might be.

[8] In a separate concurring judgment, Ponnan JA held that even though the relevant provisions of the Children's Act [4] had not yet entered into force, regard had to be had to the fact that it envisaged that all B applications for sole custody and sole guardianship of minor children by foreign nationals would be treated as inter-country adoptions. Supporting the need for the matter to go to the Children's Court, he held that a court should be slow to lend its stamp to a procedure which ignored the international safeguards and standards in the 1993 Hague Convention C on the Protection of Children and Co-operation in Respect of Inter-country Adoption (the Hague Convention), even if these did not as yet form part of South African domestic law.

[9] Heher JA, with whom Hancke AJA concurred, viewed the matter quite differently. He held that as upper guardian of minors, the High D Court was both empowered and obliged to enquire into all matters concerning the best interests of children. This empowers it to make an order for sole custody and sole guardianship. It therefore had jurisdiction to hear the application. In the present matter the High Court should not have opted for a formalistic approach to procedure. Instead it should have investigated what was in Baby R's best interests. In his view the E papers showed that it was overwhelmingly in her best interests for the order of sole custody and sole guardianship to be granted, since there was no evidence of the existence of other prospective adoptive parents for her in South Africa.

[10] In a separate judgment concurring in the judgment of Heher JA, F Hancke AJA stated that unless the setting-aside of the High Court's order was likely to result in a real benefit to Baby R, her best interests were merely being held to ransom for the sake of legal niceties. This was because an adoption in South Africa would confer no material advantage on Baby R which she could not obtain if she were adopted in the United G States of America.

[11] The majority of the Supreme Court of Appeal therefore dismissed the appeal. On 22 June 2007 the applicants applied to this court for leave to appeal. The court set the matter down for hearing on 18 September 2007. The directions invited any interested party to apply to be admitted as H amicus curiae; the Centre for Child Law did so and was admitted as amicus with the right to make both written and oral submissions. The court requested the Johannesburg Bar to recommend a person to act as curator ad litem to represent the interests of Baby R; [5] the bar proposed

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Adv Melanie Feinstein, who was appointed as curatrix. Finally, the court A sent a letter to the Department of Social Development (the department) informing it of the hearing and advising that if it desired to make representations it should intervene without delay; the department responded by submitting affidavits and briefing counsel to oppose the application. The directions laid down a tight time-frame for the lodging B of reports and written submissions, the last one coming in two court days before the hearing. I summarise them in the order they were submitted.

[12] The applicants sought an order setting aside and replacing the order of the Supreme Court of Appeal with an order awarding sole custody and C sole guardianship of Baby R to the applicants; declaring her to have been abandoned; discharging the foster care order placing her in the custody of the first and second respondents; and authorising the applicants to leave South Africa with her with a view to their adopting her in the United States of America. They maintained that the High Court had D inherent jurisdiction in respect of applications for sole custody and sole guardianship even if these applications were made with a view to secure an adoption abroad. They acknowledged that the principle of subsidiarity provided that ordinarily a child available for adoption should be placed in circumstances as close as possible to those of his or her own culture and upbringing. They submitted, however, that the principle was E not intended to create an inflexible jurisdictional hierarchy which automatically favoured placement in the child's country of origin. On the contrary, in order to comply with s 28(2) of the Constitution, the courts were obliged to adopt a flexible approach focused on what was in the best interests of the particular child in the particular situation. [6] F

[13] The Centre for Child Law maintained its stance that it was impermissible for the High Court to grant foreigners a sole custody and sole guardianship order as an alternative to an adoption order. It contended that the Children's Court had sole jurisdiction to deal with G the matter, and emphasised that the granting of sole custody and sole guardianship by the High Court would not provide protection for the child equivalent to the safeguards inherent in adoption proceedings

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undertaken A in the Children's Court. It was accordingly in Baby R's best interests, and the best interests of children generally, for the Children's Court route to be followed.

[14] In similar vein the department contended that the procedural route followed by the applicants had been unlawful and repugnant because it B contravened the provisions of the Child Care Act, the rule of law and South Africa's international obligations. It stated that the procedure was contrary to the best interests of South African children in general and those of Baby R in particular. The department submitted that there were in fact potential South African adoptive parents for Baby R. The C question therefore was whether her best interests would be served by her being adopted by the applicants as opposed to her being adopted by South Africans. It requested that a Children's Court enquiry be conducted to examine how the principle of subsidiarity should be applied to Baby R's circumstances. D

[15] The curatrix submitted a comprehensive report [7] and followed up with written submissions. In her view the circumstances of Baby R were unique. Her report stated that of the five South African couples mentioned as prospective adoptive parents by the director-general, three were unsuitable, the suitability of another was speculative, and E placement with the remaining couple was problematic, since Baby R, who was accustomed to a large foster family...