Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ
• Judgment Date: 10 September 2002
• Citation: 2003 (2) SA 198 (CC)
• Docket Number: CCT 40/2001
• Hearing Date: 09 May 2002
• Counsel: P Ginsburg SC (with him M Chaskalson) for the applicants. No appearance for the respondents. P R Jammy (with him K Pillay) for the amicus curiae. P Stais as the curator ad litem.
• Court: Constitutional Court

Skweyiya AJ:

Introduction

[1] The applicants, partners in a long-standing lesbian relationship, B wanted to adopt two children. They could not do so jointly because current legislation confines the right to adopt children jointly to married couples. Consequently, the second applicant alone became the adoptive parent.

[2] Some years later the applicants brought an application in the Pretoria High Court challenging the constitutional validity of C ss 17(a), 17(c) and 20(1) of the Child Care Act [1] and s 1(2) of the Guardianship Act [2] which provide for the joint adoption and guardianship of children by married persons only. In the High Court, the relevant provisions of the Child Care Act were challenged on the grounds that they violate the applicants' rights to equality [3] and dignity [4] and do not give paramountcy to the best interests of the child as required by s 28(2) of the Constitution. Kgomo J found that these provisions of the Child Care Act D and the Guardianship Act violated the Constitution and ordered the reading in of certain words into the impugned provisions so as to allow for joint adoption and guardianship of children by same-sex life partners. [5] The applicants now seek confirmation by this Court of the High Court order in terms of s 172(2)(a) of the Constitution. [6] E

[3] The respondents did not oppose the application but the applicants were supported by the Lesbian and Gay Equality Project, which was admitted as an amicus curiae. They also enjoyed the support of Advocate Stais of the Johannesburg Bar, who F was appointed by this Court to act as curator ad litem to represent the interests of the children who are the subject of this application and also other children born and unborn who may be affected by this Court's order. In matters where the interests of children are at stake, it is important that their interests are fully aired before G the Court so as to avoid substantial injustice to them and possibly others. Where there is a risk of injustice, a court is obliged to appoint a curator to represent the interests of children. This obligation flows from the provisions of s 28(1)(h) of the Constitution which provides that:

'Every child has the right -

. . . H

Skweyiya AJ

(h)

to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the A child, if substantial injustice would otherwise result.' [7]

Advocate Stais filed a thorough report concerning the welfare of the adoptive children of the second applicant and children generally. He also made submissions at the hearing of the matter. We B are indebted to him for his assistance.

Factual background

[4] The applicants have lived together as life partners since 1989. They formalised their relationship with a commitment ceremony, performed by a lay preacher in September 1990. To all intents and purposes they live as a couple married in community of property; C immovable property is registered jointly in both their names; they pool their financial resources; they have a joint will in terms of which the surviving partner of the relationship will inherit the other's share in the joint community; they are beneficiaries of each other's insurance policies; and they take all major life decisions jointly and D on a consensual basis.

[5] In 1994, the applicants approached the authorities of Cotlands Baby Centre, Johannesburg (Cotlands), to be screened as prospective adoptive parents. They went through a standard three-month process which involved their being screened and counselled together by E social workers as required by the Child Care Act which sets out the legal framework for adoptions in South Africa. [8] The screening of the applicants included psychological testing, home circumstance visits, extended family recommendations and a panel discussion. It was at all times made clear during the screening process that the adopted children would be moving into a family structured around a permanent lesbian life partnership. The suitability of both applicants to be parents of the F adoptive children was considered in the light of these circumstances.

[6] Within two months of the commencement of the screening and counselling process, the applicants were accepted as adoptive parents by the Cotlands authorities. A sister and brother, born on 10 G November 1988 and 20 April 1992 respectively, were chosen for possible adoption by the applicants. On 3 December 1994 the siblings were placed temporarily in the care of the applicants by the Cotlands authorities. Since then, the siblings have remained with the applicants and they consider the applicants to be their parents. H

[7] In 1995 the applicants applied to the children's court in Pretoria [9] to

Skweyiya AJ

adopt the siblings jointly. The children's court, constrained by current adoption legislation, awarded A custody and guardianship to the second applicant alone despite both applicants having been recommended as suitable parents. The applicants now challenge the constitutionality of the impugned provisions in the Pretoria High Court.

Current adoption and guardianship legislation B

[8] Under current law there is no provision for couples, other than married couples, jointly to adopt a child. Section 17 of the Child Care Act provides that a child can be adopted:

'(a)

by a husband and his wife jointly; C

(b)

by a widower or widow or unmarried or divorced person;

(c)

by a married person whose spouse is the parent of the child;

(d)

by the natural father of a child born out of wedlock'.

Furthermore, s 20(1) of the Child Care Act provides that:

'An order of adoption shall terminate all the rights and obligations existing between the child and any person who was his D parent (other than a spouse contemplated in s 17(c)) immediately prior to such adoption, and that parent's relatives.'

[9] Section 17 of the Child Care Act lists the categories of persons entitled to adopt children. Section 17(a) specifically allows for the joint adoption of children by married couples. It does not provide for the joint adoption of children by partners in a permanent same-sex life partnership. The reference to E 'husband' and 'wife' in s 17(a) refers only to marriages ordinarily recognised by the common law and legislation between heterosexual spouses. [10]

[10] Section 17(c) of the Child Care Act caters for so-called second-parent adoptions which envisage adoption by the spouse F of the biological or adoptive parent of a child. The effect of such an adoption order is to confer equal parenting rights in respect of the child on the 'second parent', giving both spouses the same legal relationship to the child as would have existed if the child had been born to the couple in marriage. Similarly, it vests in the child the G same legal rights within the family as a child born to a married couple.

Skweyiya AJ

[11] While the above provisions require prospective adoptive parents to be married in order to adopt children jointly, the fact that A same-sex life partners are excluded from this regime does not mean that they cannot adopt children at all. Section 17(b) of the Child Care Act permits adoption by a single applicant. Thus, a person living with a same-sex life partner may apply to adopt children in his or her own right, intending to raise the child with his or her partner, but the partner will have no legally recognised right in relation to B the children.

[12] Under s 1(2) of the Guardianship Act, the parents of a child born in wedlock have joint guardianship of the child, allowing them to exercise their rights and powers and carry out their duties arising from guardianship independently of each other. [11] This joint guardianship is subject to the requirement that the consent of both parents is obtained for C certain important and specified acts relating to the child. This provision applies to the joint guardianship of adopted children by married spouses as well. [12] D

[13] The effect of these provisions for the purposes of this matter is that married persons who jointly adopt a child are joint guardians of that child. The difficulty in respect of same-sex life partners is that (not surprisingly in the light of s 17 of the Child Care Act) s 1(2) of the Guardianship Act does not contemplate that E same-sex life partners will be joint guardians of children. If s 17(a) and (c) are in conflict with the Constitution because they do not permit adoption by same-sex life partners, as the applicants argue, then to the same extent and for the same reason, s 1(2) of the Guardianship Act must conflict with the Constitution. F

[14] As a result of the current law the applicants cannot jointly adopt the siblings. Although first applicant is not the legally recognised adoptive parent, she is the primary care-giver. She provides the children with their principal source of emotional support within the family and, because of the constraints of the second applicant's professional life, she spends more time with them during week days than G does the second applicant. Yet, she has no legal say in matters such as granting doctors permission

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to give either of the children an injection or the signing of school indemnity forms for school tours or sporting A activities. More importantly, in the event of the partnership between herself and the second applicant ending, her claim to custody and guardianship of the children would be at risk.

The proceedings in the High Court B

[15] To remove the legal bar to the first applicant becoming a joint adoptive parent of the children, the applicants launched application proceedings in the Transvaal High Court challenging the constitutionality of the impugned provisions which prevent them from jointly adopting the siblings. The Minister for Welfare and...